Professor Perritt

hperritt@kentlaw.edu

(312) 906-5128

Office: Room 713

Tuesday & Thursday 6:00-8:25 P.M.

Course number: 258-051

Fall 2013

Room 170

                                                                                             

                                                                                             

CIVIL PROCEDURE

COURSE INFORMATION

COURSE CONTENT

Civil Procedure is a five-credit one semester course in the law of dispute resolution in federal and state courts.

REQUIRED COURSE MATERIALS

·        Marcus, Redish, Sherman & Pfander, Civil Procedure: A Modern Approach (6th ed.2013)

·        Federal Rules of Civil Procedure (latest Educational Edition) to be read in conjunction with the Marcus, Redish, Sherman & Pfander text.

·        Supplementary materials available on the Website. www.kentlaw.edu/perritt/courses/civpro.

SYLLABUS

Date

Subject

Assignment (pages in Marcus, Redish & Sherman)

27 Aug

Constitutional entitlement to civil procedure;

Enforcing judgments

"writ of attachment"

Matthews v. Eldridge chart

Taking a truck

Taking a car

Towing a car

Taking an alligator

Destroying pot

Police decision

Private seizure

29-42; Fed.R.Civ.P. 69, 65

Form for writ of execution

Judge Friendly's list of elements of procedural due process (will be used in class)

Optional: IL pre-judgment attachment, and post-judgment garnishment statutes

IL pre-judgment attachment statutes

IL post-judgment garnishment statutes

 

Optional: Recognition and enforcement statutes:

Debtors' prison?

Uniform Recognition of Foreign Money Judgments Act

Uniform Enforcement of Foreign Judments Act

28 U.S.C. sec. 1963

Optional: Note on writs of attachment, including examples

 

CHAPTER IX. CHOOSING THE FORUM - GEOGRAPHICAL LOCATION

 

29 Aug

The Traditional Formulation: The ‘Power” Theory of Jurisdiction,

Barnes/Brown hypo (Word version)

743-763

Harris v. Balk diagram (MS Power Point)

Harris v. Balk diagram (jpeg)

Note on "paying twice" in Harris v. Balk

Optional:

Blackstone on service of original process

 

3 Sep

The Shift to Minimum Contacts, and the States’ Response - Long Arm Statutes

Wood Industries v. KTA (basic facts)

Int'l Shoe mini-hypos

764-783; NY long arm statute (for hypothetical); KTA diagram (for hypothetical)

Optional

Note on limited v. special appearances

Answer to question on process servers in Illinois

5 Sep No class  

10Sep

Refining the Minimum Contacts Analysis

Hypo

784-793 (omit Brennan dissent); 808-818 (omit Stevens dissent); 823-835;

Venn diagram illustrating analytical factors for PJ;

12 Sep

Presence of Defendant’s Property

Hypos for class (Word version) (pdf)

U.S. Marshal procedures

Note on definition of "false conflict"

857-870

Note on assignment

State v. Western Union (Word) (.pdf)

Optional: Venn diagram (.html) (Word)

 

17 Sep

Personal Service Within the Jurisdiction

Hypo

Hypo diagram (.pptx)

874-885
19 Sep

The General Jurisdiction Alternative

Hypos

CaseSpeak relationships

Backed Up by Sovereignty ©2008 Henry H. Perritt, Jr.

 

885-898

Diagram of Cat I Quasi in-rem

Optional: graph Darrin Halcomb improved graph

optional: 2012 7th Circuit case on general jurisdiction html pdf

24Sep

Consent, Jurisdictional “Ouster” by Consent - Forum Selection Clauses

Hypo

903-905

optional: generalization of Carnival Cruise Lines to diversity cases--Jones v. Weibrecht

optional (for use in class):

Actual forum selection clauses (.html) (Word)

Hypothetical trial-by-combat forum selection clause (.html) (Word)

Ears cut off (.html) (Word)

re judicial enforcement of arbitration awards:

Federal Arbitration Act section 10

Uniform Arbitration Act section 12

New York Convention article V

optional, for, or after this class:

Construct a flowchart/decision tree of personal jurisdiction; email it to civprodocs@kentlaw.edu; be willing to have it displayed and discussed in class

Flow chart example - mailing a letter (JT

26 Sep

The Requirement of Notice

Notice hypos

905-910; Fed.R.Civ.P. 4 - pay particular attention to procedures for serving individuals and corporations within the U.S.

PA evasion of service case

NY case approving service of process by email

Federal case approving service of process by email

for use in class:

trickery

Illinois service of process rule

Hypothetical file-sharing service of process rule

1 Oct

Venue and Discretionary Decline of Jurisdiction

Further hypos: (Word) (.pdf)

910-930; 28 U.S.C. §1391, 1404

Hypo: Be prepared to argue either side of Part II of the amicus brief prepared for Wood Industries v. KTA (pertaining to forum non conveniens). If you need more facts, determine exactly what facts and how you would get them.

Optional:

Venn diagram

The following illustrate state venue statutes.

Illinois venue statute

Illinois long-arm statute

Illinois corporation residence statute

Illinois local action venue statute

NY venue rule - general

NY venue rule - public authorities

3 Oct

Diversity of Citizenship,

Federal Question

Hypo

Power point diagram of hypo

931-963 28 U.S.C. § § 1331, 1332

Optional:

Examples of grants of power to state trial courts (IL, MD, PA, VA)

Hohfeldian analysis

8 Oct

The Penumbra of Federal Jurisdiction: Supplemental Jurisdiction

Hypo: We will start with the hypothetical lawsuit from 4 October, with the additional assumption that one or more ptfs has filed civil actions under the federal Wiretap Act and federal Stored Communications Act; then, time permitting, we will move to the hypothetical posted for this class session.

Chart: "Metagrammar of NOT (NOT)"--1367(b) flow chart

984-999; 28 U.S.C. § 1367

[we will review the basic claim- and party-joinder rules, Fed.R.Civ.P. 18, 20, 24, 13, 14, in class; you may wish to peruse them beforehand, but you are not expected to know them well]

Hypothetical diagrams (Powerpoint)

Note on complete diversity requirement and supplemental jurisdiction

 

10 Oct

Removal

Submajur ©2008 Henry H. Perritt, Jr.

Solutions to Schnayer problem

1000-1012; 28 U.S.C. §§ 1441, 1446-1447

Hypothetical for discussion in class (.html) (Word)

new Hypothetical diagrams (Powerpoint) (the diagrams show more claims than the narrative; we will work from the diagrams)

Optional:

HHP removal note

Judicial hieararchies (Powerpoint)

After class:

"All defendants must join"

Counterclaims as basis for jurisdiction: See Holmes Group Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 914-915 (2002) (holding that well-pleaded complaint rule requires that federal question jurisdiction exist or not based on original complaint; cannot be based on counterclaims, which are pleaded in the answer).

Optional:

StubHub district court

StubHub court of appeals

15 Oct

CHAPTER XI. CHOOSING THE LAW TO BE APPLIED IN FEDERAL COURT, (The Erie Doctrine)

Note on Erie and supplemental jurisdiction

Lex Locus Delicti ©2008 Henry H. Perritt, Jr.

MID-TERM REVIEW

1013-1021

Be prepared to apply Erie to recent complex hypotheticals

For review lecture: review notes and assignments preceding this class

 

CHAPTER III. DESCRIBING AND DEFINING THE DISPUTE

 

17 Oct

The Historical Evolution of Pleading

Problems for class

Chronology of a civil action

Pizza complaint

Hale v. Semitch

See www.givinggroundplay.com

125-135, Browse Fed.R.Civ.P. 2-12;

Common law pleading examples (declarations)

Stipp v. Jackson per Chitty on Pleading

Defamation

Account

Negligence

Consider the adequacy of the three alternative complaints in Brown v. Barnes; and of the two claims in Jarka v. Savitt (word) Jarka v. Savitt (.pdf) (Illinois is a fact pleading jurisdiction)

Elements of fraudulent misrepresentation

Elements of international interference with contractual relations

IL basic pleading rule

IL small claims pleading rule

IL pro-se small claims form

Contents of small claims form

(optional: Harry Emmanuel Scozzaro, Jr., Notice Pleading Under the Federal Rules of Civil Procedure Following Sweirkiewicz v. Sorema, 26 Am. J. Trial Advoc. 385 (2002) (good summary of common law pleading and comparison with Fed.R.Civ.P.))

22 Oct

Describing and Testing the Plaintiffs Claim

(Mr. Sloan teaching)

Study group complaint

Rule 11 hypos

136-164; Fed.R.Civ.P. 8, 9, 11, 16

Summons in Civil Action form

(Sundin) Professor v. Defendants

(Bogomolov) Jones v. Megellan

Strousberg v. Tarlock

Heim v. D

Swanson v. Doctor

Optional:

Pup v. Butzer Collections complaint

Tale of Woe

Negligence

Mortgage foreclosure documentation

Dismissal of complaint for incoherence

24 Oct

Practical drafting exercise

42 U.S.C. sec. 1983

Transferred intent (you were right!) (.html) (Word), but the causation/substantial certainty issue remains with respect to the curb/ground contact

Second Circuit en banc on inadequately pleaded count

Watch client interview (Web video)

(You need RealPlayer on your computer for this to work. You can download RealPlayer from www.real.com).

(send each of the following documents to civprodocs@kentlaw.edu)

Draft complaint (due today, before class)

Draft Fed.R.Civ.P. 26(a) disclosures (due 5 November)

Draft Initial Interrogatories under Fed.R.Civ.P. 33 (due 7 November)

Optional:

Sample complaints from the real world: Viacom v. YouTube, ACLU, FCC, FOIA, NARM, SEC

29 Oct

Defendant’s Response, voluntary dismissal

How to present these defenses?

How answer these allegations?

 

Posner characterization of pleading

219-237; Fed.R.Civ.P. 12

Hypo

Optional:

Sample answers: Viacom v. Youtube, McConnell, CIA, Vitf

Motions to dismiss: e.g.1, e.g.2, e.g.3

31 Oct

Amendments to Pleading

Wrap up pleading

 

Rule 15 hypos

Late amendment story

Sad Tale ©2008 Henry H. Perritt, Jr.

245-263; Fed.R.Civ.P. 15; review earlier pleading material

Amendments to conform: Wesco Mfg

Optional: IL rule for amending pleadings

Optional: Rule 15 flowchart (ppt) pdf version

5 Nov

V. OBTAINING INFORMATION FOR TRIAL

Rule 26(a)(1) disclosures

Retrospective on transferred intent in Bennaza case: .html, Word, .pdf

381-391; skim Fed.R.Civ.P. 26-37, concentrating on Rules 26(a)-(g), 37

Complaint in hypothetical motorcycle-accident victim case: Christianson v. Bicycle Messengers (Word) (pdf)

Rule 26(a)(1) drafts due before class today; email to civprodocs@kentlaw.edu

You should should prepare Rule 26(a)(1) disclosures for the following party:

Christianson: Georges, Pileggi, Trejo, Bitonia, Mccarter
Bicycle Messengers: Brown, Reyes, Holland, Martensen, MacDonald
Yamahonda: Lund, Webhi, Mateo, McCullough, Torres

Bennaza: Hernandez, Franco, Ligon, Savitt, Hussain
Police Officer Cue: Jarka, Drake, Collinet, Erker, Allard
Village of Kenilworth: Ferguson, Barnes, Cleveland, Ryan, Rowan

Review Rule 26(a)(1)

Consider discovery strategies for your party in your case

7 Nov

Interrogatories, requests for production, requests for physical or mental examination and requests for production

Managing the Scope and Burden of Discovery

Note on privilege against self-incrimination and civil discovery

 

Note that the police officer's name is Christopher L. Cue. Draft interrogatories due before class today; email to civprodocs@kentlaw.edu (you do not need to write definitions; just write the questions)

Review Rule 33

(Same client assignments as for Rule 26(a)(1) disclosures); if you represent the plaintiff prepare interrogatories to be propounded to your respective defendants; if you represent a defendant, prepare interrogatories to be propounded to your respective plaintiff and, if you think appropriate, to your co-defendant.

Consider discovery strategies for your party in the respective case.

Fed.R.Civ.P. 26(b)(2)

Optional:

Example of discovery plan

Judge Kimba Wood's model discovery plan

Good case on destruction/"spoilation" (html) (Microsoft Word)

12 Nov.

The Promise and Reality of Broad Discovery, The Discovery Devices

Kibbler deposition part 1

Kibbler deposition part 2

Cue deposition part 1

Cue deposition part 2

Both depositions from another recorder

 

 

 

 

391-409; Fed.R.Civ.P. 30, 32

Amended Bennaza complaint Word .pdf (use this for the deposition and subsequent proceedings).

Be prepared to participate in a mock deposition of (a) Officer Chris Cue, assuming the deposition was noticed by Bennaza's's lawyer, and (b) a mock deposition of the Melanie Kibbler, the owner of Bicycle Messengers, Inc., Christianson's employer, Christianson v. Bicycle Messengers, noticed by the plaintiff's lawyer. Be prepared to conduct direct and cross examination, and to know the authority in the deposition rules for what you propose to do in the deposition and for what your opponent may try to do and you oppose.

Basic information on the ADA

Examples: Rule 26(a) disclosures, (alternative format), interrogatories, answers to interrogatories, request for production, request for admissions, notice of individual deposition, notice of multiple depositions, deposition transcript

Subpoena form

Counsel for depositions

Bennaza: Savitt, Hussain

Officer Cue: Jarka, Allard

Kenilworth: Rowan, Ferguson

Christianson: Bitonio, Pileggi

Bicycle Messengers: Holland, Martensen

Yamahonda: McCullough, Wehbi

Deponents:

Melanie Kibbler, owner of Bicycle Messengers

Chris Cue, Kenilworth police officer

  CHAPTER VI. ADJUDICATION BEFORE TRIAL: SUMMARY JUDGMENT  

14 Nov

First hour:

Exemptions From Discovery

Compare Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) (declining to hold that opposing counsel is absolutely immune from being deposed; suggesting three-part test; reversing district court and finding that work-product doctrine permitted attorney to refuse to answer deposition questions) with In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71-72 (2d Cir.2003) (preferring more flexibility than Shelton provides).

Second hour:

Meet in your client clusters: choose a "lead discovery counsel'; determine what further discovery is appropriate after the deposition; discovery counsel must submit a report detailing further discovery to civprodocs@kentlaw.edu; Consider likely application of doctrine from assigned cases and notes and of Rule MRPC 4.2 and make sure your discovery counsel comments on it

Discovery counsel must clearly indicate all counsel in the cluster who participated

429-450

ABA Model Rules of Professional Conduct 4.2

Demonstrantive evidence case 1-accident simulation

Demonstrative evidence case 2-smell test

Hypothetical discovery requests to consider

19 Nov

Enforcing the Discovery Rules-Sanctions

Hypos

Smoking Gun ©2008 Henry H. Perritt, Jr.

 

466-474; Fed.R.Civ.P. 37 

review pp xi-xviii in Rules Pamphlet

Select (in class) lead counsel(s) for summary judgment argument on 3 December.

 

Optional: 

Do your own timeline of events in a civil case between filing of the complaint and a motion for summary judgment; send it, if you wish, to civprodocs@kentlaw.edu

District of Maine ADA case docket sheet

District of Iowa ADA case docket sheet-jury

Eastern District of VA ADA case docket sheet

21 Nov

Pretrial management

Hypo for class

Anticipatory baby hypos for summary judgment

 

517-540; Fed.R.Civ.P. 26(f), 16, Official Form 35

Optional: 540-551

Example of Rule 16(b) scheduling order: Viacom v. YouTube

N.D. Ill. Local Rule - Standing Order on pretrial procedures

Sample pretrial orders: No. 1; No. 2

26 Nov No class  
28 Nov No class (Thanksgiving)  
3Dec

The Nature of the Summary Judgment Device: The Concept of Burden Shifting

475-478; 486-496; Fed.R.Civ.P. 56

"Standardized" Bennaza complaint .pdf Word

Bennaza affidavit

Christensen complaint

Christenson affidavit

Vroom (dealer salesman) affidavit

Drool (Yamahonda engineer) affidavit

Bicycle Messengers answers to Christianson interrogatories

Yamahonda answers to Christianson interrogatories

Christianson answers to Bicycle Messengers interrogatories

Christianson answers to Yamahonda interrogatories

Bennaza's Opposition to Summary Judgment

Consider depositions in Bennaza and Christianson cases (posted on 13 November entry)

Argue summary judgment motions before "Judge" Michael G. Mason; only the defendants have filed motions for summary judgment

Counsel:

Bennaza:

Badertscher:

Kenilworth:

Christianson:

Bicycle Messengers:

Yamahonda:

"Judge" Mason's standing order (.html)

Optional:

Example of summary judgment in ADA case, affirming and reversing on two different counts

 

5 Dec

(makeup day per Academic Calendar)

 

Appellate jurisdiction, procedure, and standards of review

Hypos for class

28 U.S.C. §§ 1291, 1251, 1254, 1257; Fed.R.App. P. 3

1111-1116; 1127-1134; 1149-1151 (discovery orders); 1181-1183 (Supreme Court)

6 Dec

[Last class] REVIEW (Thursday classes meet per Academic Calendar)

Bulldozer Perritt listening

to Forum Non Conveniens review

Lecture (review all notes and assignments)

course evaluation questionnaires will be distributed a few minutes before the end of class

RECOMMENDED SECONDARY MATERIALS

James, Hazard, Leubsdorf, Civil Procedure (5th ed. 2001).

Shreve & Raven-Hansen, Understanding Civil Procedure (3rd ed. 2001).

Wright & Kane, Law of Federal Courts (Hornbook Series) (2002).

Wright, Miller & Cooper, Federal Practice and Procedure (2008), kept up-to-date by cumulative pocket supplements.

Avoid Gilbert’s 

FINAL EXAMINATION

The final examination in this course will be given on Wednesday, 11 December, 2013, at 6:00 PM and at no other time. It will be open book, open Internet, open computer, and last three hours.

In the final examination, you are responsible for all the materials discussed in class and in the assigned readings. Obviously, the examination cannot touch upon all that material, but anything we do in class, anything you see in your court visit, and anything in the assigned readings may be tested. You may bring any materials, whether commercially prepared or not, to the final exam, but successful performance on the exam will not require original research. Prepare for the exam as though it were “closed-book.”

ATTENDANCE

Much of the material and most of the legal analysis in this course is not contained in the assigned readings. Consequently, class attendance is an indispensable part of the course. Failure to attend regularly will result in exclusion from the course and a grade of “E” Sporadic absences will result in a lowering of your grade, in the discretion of the instructor. The instructor reserves the discretion to determine what constitutes “regularly” and “sporadic.” The only safe course is to attend every class.

TARDINESS

I strongly discourage tardiness and reserve the power to lower your grade for tardiness.

HATS

Do not wear hats in class.

WANDERING IN AND OUT OF CLASS

Once you are present in the classroom, please stay there, unless you have a genuine emergency. If an emergency requires you to leave the classroom, do not return.

CLASS PARTICIPATION

I teach “Socratically.” Every student is expected to be prepared in every class. Any student may be called on at any time. Volunteering is encouraged. There is no “right” answer; only cogent and persuasive arguments, backed up by legitimate legal authority.

ATTENDING A FEDERAL HEARING OR TRIAL

Attending a federal hearing or trial in United States District Court is a mandatory requirement for credit in the course. You may do this at any time during the semester. After attending, you must send me an email, to civprodocs@kentlaw.edu, briefly describing what you observed and explaining how it relates to one or more specific subjects in the syllabus.

FINAL GRADE

Your final grade will be determined by how well you do on the final exam, except that I reserve the power to decrease your final grade for unsatisfactory classroom participation, failure to complete the drafting exercises satisfactorily, failure to complete the court visit, or excessive absenteeism or tardiness. I also reserve the power to increase your final grade for outstanding classroom participation.

MUSIC

All songs are copyrighted 2008 by Henry H. Perritt, Jr. Modofac is a registered trademark. Permission is given to Chicago-Kent students to download, perform, and distribute the musical works and sound recordings to their classmates and friends. All other rights reserved. CDs are available from Professor Perritt

TEACHING ASSISTANT

Stephen Sloan, ssloan1@kentlaw.iit.edu, 3L, is the Teaching Assistant for the course. He will announce office hours after the semester begins.

OFFICE HOURS & APPOINTMENTS

I welcome interaction with students. I will be happy to make an appointment to see any of you individually or in groups. I do not have specific office hours. If you want to meet, please set up an appointment by emailing me at hperritt@kentlaw.edu, calling me at (312) 906-5098, calling my assistant, Ms Patricia O’Neal at (312) 906-5128, or by seeing me before or after class.

WEBSITE

http://www.kentlaw.edu/perritt/courses/civpro

The Website contains the syllabus, supplementary materials, old exams and model answers. Please check the Website regularly, particularly before you begin preparing for a particular class and again before coming to class. I will update it regularly. Note that course coverage probably was materially different in years for which exams and model exams are published.

E-MAIL

I may communicate with you by e-mail at any time throughout the semester. Check your e-mail regularly. If you would like to communicate with me via e-mail, please feel free to do so.