Civil Procedure Class Notes 11/13/03


Beazley about App Ad.Weíve already been recruited by others.Beazley is here to offerÖnothing.People are shy to sign up.Be bailiffs!Beazley bailiffed as a 1L at her law school.Usually, the bailiff gets to sit around during the critique.You get to see how four different students do it.App Ad uses pending Supreme Court cases.It takes 3.5 hours of time.Show up for training at 5:30 and then youíre done at 9.Itís tonight or any of the weeknights next week.It works well if there are two people per room.Meet at Room 352.


Fairman and Beazley both coach moot court teams.


Monday weíll meet at 10 AM.Weíll deal with most of Fuentes today.


Provisional remedies


What if something real bad is going to happen RIGHT AWAY???We need

preliminary relief!!!The idea is to preserve the status quo and prevent future bad acts.


One place youíll find such relief is in FRCP Rule 65(b), where youíll find temporary restraining orders.These can happen without notice!You demonstrate facts by affidavit that there will be immediate and irreparable injury and that you certify to the court that youíve done your best to give notice to the other side.If youíre worried that somebody is going to try to get a temporary restraining order against you, you should let everyone in your office know about this.


For example, Fairman calls my office at 12:30 when Iím at lunch. Heís at the courthouse trying to get a temporary restraining order against me.If Iím not there, and Iím not in the courthouse to present my position against the temporary restraining order, the court will lean towards giving the other side what it wants.


This is like a ďweíre about to chainsaw the redwoodsĒ kind of situation.Itís hard to get these.


On the other hand, in Rule 65(a), you find preliminary injunctions, for which you need to have a hearing first.Youíre going to order someone not to do something following a hearing.Temporary restraining orders and preliminary injunctions can be reversed for lack of specificity.


There are several types of injunctive relief:


1.     Ex parte temporary restraining order (no prior hearing, and itís of a short duration)

2.     A regular temporary restraining order (pending a hearing)

3.     A preliminary injunction (after hearing but before trial)

4.     Final injunctive relief (after trial)


There are lots of preliminary remedies you can get.This is one component of the relief you should try to get for your client.If something bad is about to happen that canít be undone, we will go for some type of injunctive relief.


Provisional remedies are explained in Fuentes!


Fuentes v. Shevin


The Supreme Court reviews statutes from Florida and Pennsylvania.There are really two different cases involved here that the Court considers at the same time.The Court, in this edited version, uses Fuentesís case in particular.


Fuentes bought a stove and a record player on an installment plan from Firestone.She buys these things on credit.Itís $500 plus $100 in finance charges.Fuentes goes home with her stove and stereo.


What happens?Thereís a dispute over the stove.Fuentes refuses to make her payments.She wants the stove fixed!Firestone gets a writ of replevin and the sheriff goes and seizes the stuff!The sheriff goes to Fuentesís house and takes her stove and stereo!Dammit!Is the sheriff within his legal authority to do that?Well, he was under the statute at the time.This writ of replevin becomes the issue that the Court is trying to decide as a constitutional question.


Firestone doesnít go straight to the sheriff.What do they do?They file in small-claims court.They donít file a lawsuit, though.They go to the clerkís office and filled out a form.They had to get the form signed and stamped and they also had to post a security bond for double the value of the goods that theyíre going to have seized.


This is a dispute over property!We donít know who is rightfully entitled to this property.In order to protect Fuentesís rights, they have to put down this bond so that if Firestone trashes the property, Fuentes has some recourse.


Notice that no one has yet reviewed the merits of Firestoneís claim.The sheriff comes and takes the stuff.


Is there anything Fuentes could have done to prevent all this from happening?Fuentes could have posted a ďcounter-bondĒ.However, she couldnít have really done that because the first she heard of it was when the sheriff showed up with writ in hand to take her stuff.


The constitutional issue


What part of the Constitution are we using to analyze the appropriateness of the statute?Itís the Fourteenth Amendment.What state actor is involved?Itís because the process involves the sheriff that this becomes a constitutional issue.Whatís the property in question?Whatís the deprivation?How long is it?Remember that this is all pre-adjudication.There is still a hearing to come on the merits.Whatís the time frame here?It was a three day deprivation.


But from the courtís perspective, that doesnít matter.A deprivation of your property isnít okay just because itís short.


Why does the Constitution protect Fuentesís right to a stereo bought on credit?Because we have a free enterprise system and people are allowed to use their resources as they wish, either on necessary or merely fun things.


This was a common, everyday practice in the past all over the country where you would repossess goods when someone defaulted on their payments.


What is it that Fuentes is entitled to?She was entitled to a prior hearing.It doesnít matter if she gets a hearing later.Why not?You must have notice and be heard before the government comes and takes your property away.Youíre entitled to be heard.Thatís how the Court interprets the Fourteenth Amendment.


Procedural due process


So what is procedural due process?Before the government can take your stuff, you must have notice, and you must have a hearing of some sort.


The Court gives us a very clear explanation of what procedural due process means: it means notice and a hearing.You can choose not to take advantage of that if you want.


Why do people need this?Whatís the purpose of this?Why should we waste government resources having notice and a hearing on Fuentesís stuff?The whole idea is that Firestone is wrong.If Firestone is right, they still get the property.What must be Fuentesís argument in order for her to get the property back?She must argue that the property was wrongfully taken.Why canít Fuentes just make that argument to the sheriff?The sheriff has no power to not enforce the court order.The necessity of the hearing is that we need someone disinterested in the matter to make a judgment of the validity of the claim.


When do we have to have this hearing?Does it have to be prior to the taking of the property?If so, how long before?Could the sheriff bring the judge along and have the hearing on the front steps of Fuentesís house?


The Court doesnít tell us.The Court says that there must be notice given in time for you to be able to respond.There must be some sort of ďtime lagĒ.


The purpose of all of this is that we want to make sure that we donít wrongfully take Fuentesís property.Even short-term deprivation of Fuentesís property is bad.


What about the counter-bond procedure?Why is that insufficient due process?Assume she is aware of the procedure.Well, itís still short-term deprivation of her property.Just because thereís a remedy later, that doesnít shore up procedural due process.


Not every pre-hearing seizure requires notice plus a hearing.What are the exceptions?


1.     There must be an important governmental or general public interest.

2.     There must be a special need for prompt action, and

3.     It must be initiated by the government itself.


How do we apply this to Fuentes?


1.     Itís not an important governmental interest.

2.     Thereís no reason to do it now, now, now.It is unlikely Fuentes will run off with her stove.

3.     Is this government-initiated?No, itís initiated by Firestone, a private party with an interest in the property.


This is sort of a factor test and not necessarily a three-prong test.


Example: the Denver booot!If they slap a boot on your car without notice and a hearing, it must fall within these exceptions.Itís government-initiated.The police did it.Why do they boot cars?Only one reason: they boot you if you donít pay your parking tickets.Is that an important governmental interest?


There will be a couple of comments about the results of Fuentes next time.It makes the lives of consumers worse!


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