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Agenda for 1st Class• Administrative Stuff

• Newspapers & Public Radio

• Introduction to Civil Procedure

• Introduction to Service of Process

• Greene v. Lindsey

• Introduction to FRCP

• Introduction to pleading

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Assignment for Next Class• Review any questions or materials we didn’t cover in class• Service of Process– FRCP 1, 4,12(b)(5) & (6), Forms 1-3, 5-6– 3 Blackboard question on Service of Process– Questions for next class and Writing Assignment for Group 1

• The question on the next two slides are the first part of the writing assignment

– Optional. Glannon 345-48, 352-53, Problems 1-8, 10, 11a, 12a, 13a, 14• Pleading– FRCP 2,3,8(a),(d) & (e), 12(b)(6), 84– Yeazell, pp. 365-83– 3 Blackboard questions on Complaints– Questions for next class and Writing Assignment for Group 1

• Questions on Slide entitled “Questions for Next Class III”– Optional. Glannon 615-46

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Questions for Next Class I• 1) Prof. Armour sues Prof. Garet for a playground injury. He attempts to

serve process but the process server he hired is unable to find Prof. Garet and his house is abandoned. So Prof. Armour publishes the summons in the Los Angeles Times. Is service of process valid?– Assume that the case was commenced in the federal district court for the

Central District of California and that Prof Garet resides in that district– Note that California statutes include the following provision:

• Cal. Code Civ. Pro. 415.50. Service by publication• (a) A summons may be served by publication if upon affidavit it

appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article…

• (b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served….

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Questions for Next Class II• 2) It has been proposed that the Federal Rules of Civil Procedure should be

amended to add a new FRCP (4)(e)(2)(D) that would read: 

– (D) delivering a copy of each by electronic means at a location previously accessed by the individual within 60 days before the copy is delivered.

• a) Is this proposed amendment constitutional? What factors are relevant to this question?

• b) Is this amendment a good idea? If you were on the Rules Advisory Committee, would you recommend its adoption?

• c) If it were your responsibility to draft a new rule relating to electronic service of process, would you propose different language? If so, draft the rule you would propose. 

• 3) How could one argue that service of process by electronic means is already allowed under the FRCP in some circumstances? If you need more information to answer this question, what information do you need? I do not encourage you to do research to find the information you would need. Rather, I hope you will read FRCP 4 carefully to see what provision or provisions of it could be construed under some circumstances to allow electronic service of process.

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Questions for Next Class III (Complaint)• Briefly summarize Haddle v. Garrison.

– Your summary should include the parties, the key allegations of the complaint, the way each court which heard the case ruled, and why.

– Try to keep your summary brief. The summary I drafted is 4 sentences and 92 words. Concision is a virtue!

• Yeazell pp. 372 Q1• Read 42 U.S.C. § 1985(2) carefully (Yeazell p. 373). What are

the elements of a cause of action under that statute? That is, list all the things that the plaintiff will have to prove to prevail if the case goes to trial.

• For each element you listed, find the corresponding allegations in the complaint (pp. 370-71).

• Yeazell pp. 376-77 Qs 1-2 and pp. 382-83 Qs 1-2

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Administrative Stuff• Everyone receive at least two emails from me?• Everyone receive writing group and web # from Chris Schnieders?• Everyone successfully access the website?

– See www.klerman.com. Click on “Civil Procedure”– You are responsible for the policies posted there

• Everyone get books for class?• Nameplates

– Bring to class every day– First & Last name: Write first name you want me to use

• Seating Chart -- Put name you want me to use on chart• Office Hours

– Mondays 4-5PM• May not consult materials from last year’s class• Audio recording posted to Portal• Attendance and participation are mandatory

– May be included in grading– Email dklerman@law.usc.edu if absent or unprepared

• Not advisable to read ahead or do writing assignments in advance• Exam will be open book; probably one-day take-home• Lunch

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Socractic Method• Starting next class I will call on you, even if you don’t raise your

hand• Much of what you do in the law practice will be oral

– Arguing your case to a judge or jury– Responding to a client's legal questions – Negotiating with opposing counsel– Discussing a case with a supervising attorney or partner in a law firm

• Many of those situations will be ones in which others will be asking you questions and you will be expected to answer– Judges, partners, and clients set the agenda, and they will expect you to

answer their questions– You can't say "I pass" to a judge– If you say it to a partner you may not be at the firm much longer– If you say it to a client, you are not likely to have many clients

• I will sometimes try to argue you out of your position– Even if I think you are right– Good lawyer knows when and how to defend position, when to give in– Can be frustrating, but important

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Newspapers• I strongly advise you to keep up with the news

– Major Newspaper: New York Times, Wall Street Journal, or Financial Times

• Online or hard copy• Hardcopy available in library

– Public Radio: 89.3 KPCC, 89.9 KCRW

• Law is in the news nearly every day

• More generally, you will be a much better lawyer if you are up on current events– Also you will interview much better– Not to mention, you will be a better citizen

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Clerking• I also strongly advise everyone to apply for a

clerkship– Clerking for a judge is the very best job you can

take after the law school• Learn more about practice of law, more quickly, than at

any other job• Best way to make good first impressions at next job

– So can acquire good mentors and supporters

– Apply in summer between 2L and 3L year

• Judicial externships and internships also good– But not a substitute

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Introduction to Civil Procedure• Arguably most important course this semester

– Very few of you will litigate torts or contracts– But about half of you will become litigators

• And even transactional lawyers need to know a little about litigation

• Course is mixture– Part constitutional, part application of court rules, part statutory, part

caselaw– Part theory, part very practical (court visit, mock mediation)

• Civil, not criminal• Mostly pretrial and post-trial

– Trial Advocacy is separate course– Pretrial is very important because most cases settle

• Mostly federal– California and other states are similar – Separate course for California Civil Procedure

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Structure of Course• Stages of a simple lawsuit

– Service of process, pleading, discovery, trial, appeal– Settlement, mediation

• Complex litigation– Multiple parties, multiple claims, multiple suits– Joinder, class actions, res judicata

• Which court, what law– Jurisdiction, venue, choice of law, Erie doctrine

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Introduction to Service of Process• How notify someone that sued?

• Ideally personally deliver relevant papers to them– Relevant papers are summons and complaint

• But personal delivery is sometimes too difficult or costly, so other methods sometimes allowed– Valid method must be authorized by relevant rules

or statute AND must be constitutional

• Important, because if defendant doesn’t respond to summons, subject to default judgment

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Greene v. Lindsey Questions I• 1) Who were the parties to this litigation?• 2) How many courts were involved in this litigation?• 3) Was there a trial?• 4) How did each court rule? How did their reasoning differ? What authorities

(statutes, cases, constitutional provisions) did they rely upon? How persuasive were their arguments?

• 5) Did the Supreme Court reach the right decision? Why? • 6) Do you think tenants (including those not parties to Greene v. Lindsey)

generally benefited from this decision? How might the decision help them? How might it hurt them?

• 7) What is the rule of law ("the holding") established by this case? Try to state it in a single sentence.

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Greene v. Lindsey Questions II• 8) Suppose you rent a posh apartment in Beverly Hills. The building has a

doorman, 24-hour security, and other amenities. The landlord wants to evict you and attempts to notify you by posting the summons on the door to your apartment. You don't see the summons, and the landlord evicts you. You bring suit in federal court arguing that service of process was unconstitutional. Are you likely to win? Be sure to think of arguments both for why you might win and for why you might lose. Which are more persuasive?

• 9) Suppose you park your car in unapproved spot on the USC campus. A USC Transportation Services employee tacks a notice on your car stating that you must move it within 24 hours or it will be towed. You don't see the notice in time, and USC tows your car. You file suit in federal court arguing that USC violated your Due Process rights. Are you likely to win? Be sure to think of arguments both for why you might win and for why you might lose. Which is more persuasive?

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Greene v. Lindsey Questions III• 10) According to government records, Jones, a homeowner, failed to pay

property taxes on her home for several years. According to statute, if a homeowner has not paid her taxes for several years, the government has the right to sell the property at a tax sale. The government notified Jones of the planned tax sale by sending a certified letter addressed to her at her home. No one was home to sign for the letter, so the postal carrier left a sticky-note on her door advising her that a certified letter was being held for her at the post office. No one claimed the letter at the post office, so the letter was returned to the government office that sent the letter. The government proceeded to sell Jones’s property. Has the government violated Jones’s constitutional rights? 

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Greene v. Lindsey Questions IV• 11) Dusenbery was arrested and convicted for various drug offenses.

According to statute, cash or other property that was acquired through illegal drug sales is forfeit to the U.S. government. After Dusenbery was incarcerated, the government initiated forfeiture proceedings regarding more than $21,000 in cash that it found at Dusenbery’s house. The government attempted to notify Dusenbery of the forfeiture proceedings by mailing a certified letter addressed to him at the prison where he was being held. A prison official signed for the letter, and the prison had procedures for delivering mail to prisoners. It is unclear whether the procedures were followed and whether the letter was ever delivered to Dusenbery. Since Dusenbery did not contest the forfeiture, his money was turned over to the U.S. Treasury and spent on student scholarships. Has the government violated Dusenbery’s constitutional rights?

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Federal Rules of Civil Procedure• FRCP

• Rules which govern civil cases in federal court

• Written by Advisory Committee of judges, academics, and practicing lawyers, approved by Supreme Court. Congress can veto.– Interpreted like statutes

• States have their own rules– Some states enact rules as statutes (e.g. California)– Approx. 35 states have modeled their procedures

on FRCP• Unfortunately not California

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Service of Process under FRCP • 4(c)(1). Summons and complaint served together

– Summons (Form 3, p. 70); Complaint (Forms 10-11, pp. 74-75)

• 4(c)(2). Service by anyone 18 or older not a party• 4(e). Service on individuals by

– (1) method allowed by state law, or– (2) delivering copy personally or leaving copy at home with person of

suitable age living there• 4(h)(1) Service on corporations by

• (A) method allowed by state law, or• (B) delivery to officer, managing or general agent, agent authorized to

receive service– Officer = very high ranking person, e.g. CEO, Secretary, Treasurer– State law usually requires designation of someone to receive service

» Names and addresses on website: http://kepler.sos.ca.gov/• All methods must be constitutional• Waiver procedure in 4(d) seldom used, because defendant gets 60 days to

answer complaint, rather than ordinary 21

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Introduction to Pleading• First major phase of lawsuit

– Complaint, answer• Functions

– Notice– Identify issues for discovery and trial– Weed out bad claims

• Very hard for 1L students– because closely related to discovery and trial– because closely related to substantive law

• Good complaint alleges facts relating to every element of cause of action

– because law recently changed• Iqbal (2009)

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Complaint in FRCP I• 3. Complaint filed with court• 4(c)(1). Complaint served on defendant with summons• 8(a). Complaint has 3 parts

– Jurisdictional statement. See Form 7– Short and plain statement of claim. See Forms 10 & 11

• Plaintiff usually must plead facts related to every element of a valid cause of action

• Need not cite legal authority– Demand for relief. See Forms 10 & ll

• How much money; what kind of injunction• 8(d). Can plead in alternative, even if both can’t be true• 8(e). Complaint interpreted “so as to do justice”

– See also Rule 1. Rules construed “to secure just, speedy, and inexpensive determination” of cases

• 10, Form 1. Formalities, captions, etc.

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Complaint in FRCP II• 11. Complaint must be truthful, e.g. supported by legal and factual research

(more detail next week)• 12. If complaint is deficient, defendant can make a motion to dismiss under

FRCP 12(b)(6)– Case dismissed, if, even if all facts in complaint assumed to be true,

plaintiff would not prevail– Motion granted if law does not support plaintiff’s claim

• E.g. Prof. Klerman called on John in class, wherefore John prays $1,000,000 in damages.

• Forms 10 and 11 provide examples of very short complaints– FRCP 84 says that forms are valid– No one writes complaints that are this short

• Why?

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12(b)(6) Motion to Dismiss• 12(b)(6) . Defendant challenges complaint by making motion to dismiss for

failure to state a claim upon which relief can be granted– Judge assumes all facts in complaint (but not legal conclusions) are true– See handout for problems justifying dismissal– If motion granted, plaintiff almost always has chance to amend– Core purpose – dismiss claims not supported by law

• Not that may require resolution of difficult, close, and/or new legal issues

• Subject of next class– Newer purpose – dismiss claims with insufficient factual support

• See Iqbal. very controversial, because plaintiff may need discovery to get factual support, but not discovery if case dismissed

• Subject of class after next• Called “demurrer” in common law and in many state law systems