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Unformatted text preview: Civ Pro – Silver Francis Ho CIVIL PROCEDURE Rule 1: Scope of Rules Rules shall be construed and administered to secure the just, speedy, and inexpensive determination of every action. Overall themes Be aware of DP problems Try to facilitate settlement Notice pleading Be liberal with rules to try to do justice efficiently Encourage trial on merits P is master of his claim PREJUDGMENT SEIZURES/RIGHT TO BE HEARD 5A: “… nor be deprived of life, liberty, or property, without due process of law ” 14A: “ …nor shall any state deprive any person of life, liberty, or property, without due process of law .” Purpose of DP Gives right to a hearing in a timely and meaningful manner Gives right to a notice in a timely and meaningful manner Establishes personal jx so that one is not arbitrarily hailed into court. Two standards to determine if statue violates DP (from Fuentes) – Must be state action Meaning approach: - what is the meaning of DP? DP gives right to hearing and notice. This view is good for arguing DP violations even if the process works perfectly and only bad D’s get deprived Function approach:- what is function of DP? DP prevents only takings that are unwarranted or erroneous deprivations. In other words, it requires only minimizing erroneous deprivations Background: There are procedural devices that permit some interim relief before case goes to trial. Purpose is to preserve status quo so that relief can be meaningful Substantive law- governs parties in the real world. Procedural law- governs the creation, modification, and adjudication of substantive law. Examples include temporary restraining orders (TRO), preliminary injunctions, and prejudgment seizures Main issue is whether or not these conflict with DP and its purpose. Fuentes v Shevin , 29 Rule: DP requires that parties whose rights are to be affected are entitled to be heard at a meaningful time and, in order that they may enjoy that right they must be notified . Facts: FA law permitted a person to get a writ of replevin to seize property. It did not require any showing of good cause or that person is in the right. Only required a bond twice the value of the property. When bond posted, officer seizes property at which time he gives aggrieved party notice. Then there is automatic hearing. PA law is similar to FA law except, except aggrieved may only get hearing if they sue. SC Opinion: FA and PA statutes are unconst. Hearing is needed to ensure fair process of decision-making and minimizes errors in takings In order for hearing to serve a meaningful purpose, it must be granted before taking occurs The extra cost of a hearing is negligible compared to the constitutional DP right DP is not about compromise but about protecting individuals from the state FN 22: Procedural DP is not about protecting all interests only those interests of the person whose property...
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- Spring '08
- Civ Pro, Federal Rules of Civil Procedure, Contingent fee, Francis Ho