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Civil Procedure

· -  The defendant is served with a summons so the defendant knows he is being filed. The plaintiff must prove by a preponderance of evidence to prove what is in the compliant. Affirmative defense is a which of the opposite of the normal and the defendant proves by a preponderance of evidence to prove what is in the complaint is wrong. Motion to dismiss or a demurrer. Then the defense lawyer files an user to the compliant, and enters 1st affirmative defense is the amount in controversy is not $75,000 and the burden of proof is the defendant. The second affirm defense= contributor and the answer of the defendants complain. They generally agree with or challenges jurisdiction. They agree with or challenges facts as alleged in complaint. Establishes defense of affirmative defenses and as the court for a remedy

· -  Motion of a summary judgement, is granted where there exists no material issues of fact and the judge should decide who wins simply by applying the law to the agreed upon the facts. The pretrial conference is after a motion of Summary Judgement. Pretrial conference sharpens particular issues and negotiations to speed the trial.

· -  Motion for Judgements notwithstanding the verdict: reasonable people could have reached the verdict the jury has reached. This is given the substantial evidence, and this is whether there is enough evidence or records and is people could not have reached the verdict the jury reached.

· -  Motion for New Trial: Interest of justice, new evidence, jury prejudice.

· -  Hearsay: An out-of-court statement offered for the proof of the matter asserted. This is not reliable testimony, but there are exceptions to hearsay.

• Spontaneous utterance: Is considered reliable testimony because the uttering person is unlikely to change or format a lie to the words utters.

Limits on Judicial Relief

· -  There must be a concrete case or controversy. No collusive cases.

· -  It must be a justiciable controversy.

• Timing constraints are Mootness and ripeness. • Standing

• Political Question

• Act of state doctrine - Justiciability

· Timing constraints when you cant bring a suit to early is ripeness and isn't ripe for judicial decision. The injury cannot be hypothetical, but injury is imminent it is ripe.

· Mootness is the other end of ripe: a suit is brought too late and the controversy is already over.

- Standing: Who can bring a law suit and the proper party to bring a suit.

· One can not sue on peoples behalf, but there are exceptions such as organizations can sue on half of members, unions can sue on behalf of members, Parents on behalf of children.

· Prudential standing: Unique injury If you suffer injury from public policy you cant go to the courts to sue. You have to be uniquely injured.

- 1. There must be an injury in fact: They do not have to be physical or monetary.

- 2. Traceability: Is the injury fairly traceable to the actions of the defendant.

- 3. Redress-ability: If the court awards the plaintiff everyone they asked for, will that remedy the injury.

· Political Question: A controversy between two litigants but the courts may not be the best entity to resolve the conflict. There is no test, but there is examples/

· Statute of limitations: Requires the plaintiff exercise their right to file suit within a certain timetable that is set by the legislative. The timetable starts on the injury, or when the injury is when the injury is discovered, or an arrest. Insanity, military service, court orders.

· Equity = Laches: Money damages will not make the plaintiff whole and require a court order. To put the plaintiff back in the same position before the case. One of the precedents or maxims with equity is a delay in bringing a suit that damages deferents to deferents itself.

· Res Judicata or claim preclusion: Similar to double jeopardy in civil court makes both parties barred from relitigating the same issue. Two conditions must be met for a claim to be precluded. Identity of the parties it must be the same two parties trying to relitigate. then a new party in privity (One who can sue on behalf of another) with one of the 2 originals. Then the second condition can be met identity of claim= the legal issues that were litigated in the 1st trial are essential the same in the 2nd trial.

• Immunity (Means that plaintiff injured by an immunized deferent has no real remedy at law) from suit.

- Absolute: Cannot be sued unless

· Sovereign: Federal government and 50 states, but not local government. You aren't really seeing the sovereign, you are suing the taxpayer. A sovereign consents to be sued by passing a law waiving its immunity. (FTCA or TCA “Tort claims act”

· Torts in general - Elements: (to collect its money)

· 1) Existence of legal duty (yes)

· 2) Breach of a legal duty.—Foreseeability (yes)

· 3) Breach is the proximate cause of injury. (yes)

· 4) Act of discretion (no)

- Policy discretion - Implementation discretion

· -  If the sovereign consents to be sued, it can give condition on how. This limit liability to untentnetion torts + assault and false imprisonment by a federal law enforcement personnel

· -  Vicarious liability= employer is liable for the negligent acts of employees if done in the scope of the government

· -  No federal vicarious liability if the employee committed negligence in exercising in act of discretion.

- Intentional Torts: • Assault, Battery, Libel, False imprisonment

- Unintentional torts: • Negligence and product liability

- To sue for negligence you must have: • 1: A legal duty • 2: Breach (foreseeability) • 3: The Breach is the proximate cause of injury—but/for+ foreseeable\

- Cops are liable and the test is:

• Officers are immune so long as their actions are reasonable under the circumstances

- 1. Did the the officers conduct violate a constitutional right

- 2. Weather it would be clear to a reasonable offer that the conduct was unlawful, given the circumstances.

· -  Contactual: Parties can create immunity through contract, but it is rare exception. • Contractual immunity will be voided if it:

- Violates public policy - It results from an unfair disadvantage

• Subject of the contract. • Nature of the Immunity clause itself. • Power relationship between the parties. • Relative bargaining power of the parties.

· -  Punitive: For specific or general deterrence. Legislators decide in what cases can receive punitive damages. Insurance where they should have paid and refuses to pay.

• General deterrence: to deter the defendant and all similar in the defendants class.

· -  No Breach of contract

· -  No simple or gross negligence: Simple negligence is a failure to exercise reasonable care. Gross negligence: Reckless disregard for consequences to the safety and protect of others: (Criminal Negligence but not punitive) Aware that the defendant knew that there was negligence and did not care.

· -  Have to get willful and wanton conduct for punitive. There has to be Malicious or ill will. This will get punitive damages.

· -  * Insurance where they should have paid and refuses to pay.

· -  Wrongful discharge on race or sex= Compensatory ponies and equity and a reinstatement for your job back.

· -  Nominal: A trivial amount where no loss can actually be proven. • Trespass

· -  Liquidated: Contract parties agree in advance to an amount if a breach occurs. • Not allowed if amount is to deter a breach rather than compensate for a loss • Ok if damages are difficult to calculate or uncertain • Parties agree in advance about is reasonable given the loss

· -  General Principle

· 1.) A plaintiff cant say if this wouldn't have happened i would have made this much money

· 2.) Damages are typically limited t those reasonably foreseeable by the defendant.

· 3.) Future problems are difficult to establish.

· 4.) Plaintiff has a legal duty to take reasonable steps to minimize damages

· Prevents recovery f that are foreseeable and could have been avoid

· Plaintiff has the burden of proof (By a preponderance of evidence) to document monetary loss.

· -  General Damages are natural and necessary result of the injury and do not need to be listed in the placing by do need to be substantiated at trail (Those Foreseeable)

• Battery Unauthorized touch which is general $$ pain and suffering and mental anguish.

· -  Special Damges

• Unnatural damages that arise from an injury (and are not foreseeable) Need to be included in the complaint and documented at trial.

· -  Benefit rule 5

· Where the defendants misconduct causes both injury to the plaintiff but also confers some benefits, and the plaintiffs damages award will be reduced by the amount of the benefit.

· Nominal Damages: A token of dough where there has been a breach but no identifiable harm

· Liquidated damages: the agreed to in a contact or $$ deposited against future damages.

- Not allowed if amount is to deter a breach and not compensate

· The purpose is to put to Plaintiff in a position as if the contract were performed

- Performance, damages are limited to compensatory damages.

· Declaratory Judgement

- Judicial determination of legal rights. Declares a statue unconstitutional.

- Some states consider it an equity remedy.

· Action to quiet title

- Judicial determination of rightful ownership of real property.

· -  Equity Remedies: You can ask for equity when a common law will not be sufficient to make them whole again. The judge acts as a court of conscience, and no jury for equity. You can have both monetary loss and an equity jurisdiction.

· -  Injunction: Most common equity remedies

• Mandatory: Compels one to act to make (someone) do something they (Writ of Mandamus)

- Prohibitory: Prohibits one from acting

· Permanent (can disappear and be modified): After a full adversary hearing meaning that it is just like a trial and all the due process and looks like a real trial.

- Because it is a full civil trail and the proof is by a preponderance of evidence.

· Preliminary: Notice and hearing but not a full adversary hearing (testimony but no compulsory witness or cross). Typically to preserve status quo until determines legal rights

· -  A probable success on merits and or irreparable harm (The greater the harm, the less likelihood of success necessary).

· -  Serious legal issues are raised and bale trips in movant favor

• Temporary Restraining order

· -  Ex parte is only a one side. No notice and no hearing and typically domestic violence cases and stalking cases.

· -  Irreparable harm to the moving party and there is no time for the hearing because there is the harm and there is no time to do either injection and does a TRO.

- Recession and reformation: • Apply only to contract law.

· -  Recession: Have to proof that the contract was made via deception or mistake and if granted the court cancels the contract.

· -  Reformation: Contract fails to accurately express the intent of the parties via mistake or bad language.

- Equitable Maxims: Short statements that epitomize an equity principal.

- Specific performance: You can not ask for a specific performance unless the good is unique. Is not a good remedy when it requires a personal service of somebody, Breaking a contract and the other party wants a task for them.

· Clean hands Doctrine: Anybody that is a plaintiff acting for a equitable remedy cant do anything wrong in the remedy process

· Equity will not enforce a one sided contracts

· Equity wont tolerate unfair delay.

· For every wrong there is a remedy.

- Restitution: return of property of possession of deferent to the plaintiff

• Can either be equity where it is returned to the plaintiff, and common law it is replevin and sometimes the property is not returnable, in that case the amount of money is determined by the deferent gained rather than the plaintiffs loss.