Civil Procedure II Outline 1

Civil Procedure II Outline 1 - - 1 -- 1 - 1 CIVIL PROCEDURE...

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Unformatted text preview: - 1 -- 1 - 1 CIVIL PROCEDURE II OUTLINE PART B: THE PROCESS OF LITIGATION Approaching Civil Procedure Fact Pleading- plead facts to show a case exists (prima facie case) Notice Pleading- give notice of circumstances to show where question rises from. Substantive due process- court should not expand the meaning of laws through interpretation to a meaning beyond that which the legislature intended. Also, legislature not to pass statutes that are irrational. This idea comes from the interpretation of the 5 th Amendment. Specific Remedies: there are remedies which are specialized to serve a specific function. Equity Jurisprudence v. Common Law Remedy: Equity remedies: developed because there was no remedy at law for the specific harm. (Equity came from the deficiency of the Common Law Remedy) Courts of Equity and Law have merged in most states. General Jurisdiction judges can levy equitable and legal remedies. In granting equitable relief, judge will balance the reasonableness and the hardships that could be faced in the decision. Substitutionary Remedies a. Compensatory Damages United States v. Hatahle , 1958 (p.315) Indians horses grazing on federal grazing lands. Government and private citizens file suit to stop grazing but round up horses and sell to glue factory before disposition of case. Issues: ! Mitigation of damages should have found way to avoid increased losses, but s unable to buy additional horses cant be held to mitigate of no ability. ! Pain and suffering blanket amount awarded but p&s is individually determined ! Availability of like animals should have considered cost of training animals to the level of those lost. Rule: Evidence of damages incurred through pain and suffering must be treated as individual matter and measured accordingly (case remanded, note: lawyers screwed up on the other claims). b. Liquidated, Statutory, and Punitive Damages FUENTES v. SHEVIN - 1972, pg. 329 Opportunity To Be Heard Seizure of goods via writ of replevin case. Whether state statutes that fail to provide for notice and a hearing before a creditor can replevy goods from a defaulting debtor are a violation of DP. Yes. Absence of extraordinary circumstances means the replevin violates DP. * ct. recognizes extraordinary circumstances that justify postponing notice and opportunity for hearing, e.g. public interest (protect bank foreclosure, contaminated food), there is no exclusive list, so an advocate can argue this * Cole: must have: an opportunity for a hearing at a meaningful time in a meaningful manner, before deprivation of property ! this must be based on informed facts ! no absolute right to an ex parte attachment ! minimal deterrent effect of a bond is no substitute for an informed evaluation by a neutral official * Judge is deciding in review of the plea for attachment that there is a substantial likelihood that petitioner is entitled tot the attachment 2006 Stephen Hunt, Jr....
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Civil Procedure II Outline 1 - - 1 -- 1 - 1 CIVIL PROCEDURE...

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