Civil
Procedure Class Notes
Beazley
about App Ad. We’ve already been
recruited by others. Beazley is here to
offer…nothing. 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
Fairman
and Beazley both coach moot court teams.
Monday
we’ll meet at
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 you’ll find such relief is in FRCP Rule 65(b), where
you’ll 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 you’ve done your best to give
notice to the other side. If you’re
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
This
is like a “we’re about to chainsaw the redwoods” kind of situation. It’s 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. You’re 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 it’s 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 can’t be undone, we will go for some type of injunctive relief.
Provisional
remedies are explained in Fuentes!
The
Supreme Court reviews statutes from
Fuentes
bought a stove and a record player on an installment plan from Firestone. She buys these things on credit. It’s $500 plus $100 in finance charges. Fuentes goes home with her stove and stereo.
What
happens? There’s 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 Fuentes’s 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
doesn’t go straight to the sheriff. What
do they do? They file in small-claims
court. They don’t file a lawsuit,
though. They go to the clerk’s 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 they’re going to have seized.
This
is a dispute over property! We don’t
know who is rightfully entitled to this property. In order to protect Fuentes’s 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 Firestone’s 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 “counter-bond”. However, she couldn’t 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? It’s the Fourteenth Amendment. What state actor is involved? It’s because the process involves the sheriff
that this becomes a constitutional issue.
What’s the property in question?
What’s the deprivation? How long
is it? Remember that this is all pre-adjudication. There is still a hearing to come on the
merits. What’s the time frame here? It was a three day deprivation.
But
from the court’s perspective, that doesn’t matter. A deprivation of your property isn’t okay
just because it’s short.
Why
does the Constitution protect Fuentes’s 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
doesn’t 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. You’re entitled to be heard. That’s 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? What’s the purpose
of this? Why should we waste government
resources having notice and a hearing on Fuentes’s stuff? The whole idea is that Firestone is
wrong. If Firestone is right, they still
get the property. What must be Fuentes’s
argument in order for her to get the property back? She must argue that the property was
wrongfully taken. Why can’t 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
Fuentes’s house?
The
Court doesn’t 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 “time lag”.
The
purpose of all of this is that we want to make sure that we don’t wrongfully
take Fuentes’s property. Even short-term
deprivation of Fuentes’s property is bad.
What
about the counter-bond procedure? Why is
that insufficient due process? Assume
she is aware of the procedure. Well, it’s
still short-term deprivation of her property. Just because there’s a remedy later, that
doesn’t 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. It’s not an
important governmental interest.
2. There’s no
reason to do it now, now, now. It is
unlikely Fuentes will run off with her stove.
3. Is this government-initiated? No, it’s 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
There
will be a couple of comments about the results of Fuentes next time. It makes the lives of consumers worse!