CIVIL PROCEDURE CLASS 3 (8/28/01) READING AND BRIEFING CASES

1. CIVIL PROCEDURE CLASS 3 (8/28/01)READING AND BRIEFING CASES Columbus School of Law The Catholic University of America Professor Fischer

2. WHAT WILL WE LEARN TODAY? • 1. Wrap-up of last class • 2. Finish up Appeals and Issue Preclusion • 2. How to brief a case: U.S. v. Hall • 3. Introduction to a case we will follow in this course: Carpenter v. Dee • 4. We will use the Carpenter v. Dee case files to learn how to choose a cause of action. We will learn how litigators think when a case is first presented to them, through a simulation of a strategy meeting between a senior partner and an associate in a law firm.

3. WRAP-UP OF CLASS OF 8/28/00 • Yesterday’s class was an overview of the stages and essential concepts of a civil action I. PRE-TRIAL II. AT TRIAL and III. POST TRIAL. • Not every action will reach every stage or involve every concept discussed today • We will flesh out these concepts and procedural mechanisms later in the course so don’t worry if you’re a little confused at this point. Everything will come together as we proceed!

4. 3. APPEALS • We will not do much on appeals in this course • FINAL JUDGMENT rule • Appeals from district court to U.S. Court of Appeal in their region • Error must be revealed in record, there must be timely objection to error, and error must materially affect outcome of case • Usually no new facts are considered on appeal • Generally must appeal 30 days after final judgment • Appeals to U.S. Supreme Court: WRIT OF CERTIORARI

5. 4. BINDING EFFECT OF JUDGMENTS (RES JUDICATA) A. CLAIM PRECLUSION (res judicata) B. ISSUE PRECLUSION (collateral estoppel)

6. A. CLAIM PRECLUSION • Polly sues Dolly for breach of contract, wins, and recovers $7,000 in damages. If Polly thinks the judgment is too low, can she bring a second suit against Dolly? • After George kicks Andrew, Andrew sues George for negligence and loses. Can Andrew sue George for battery based on the same kick?

7. B. ISSUE PRECLUSION • B, a dog food manufacturer, has a contract to provide A, the owner of a kennel, with 200 lbs of Super Grade Dog Chow and 500 lbs of Regular Dog chow each week. A thinks that B has not complied with the contract between March and June and sues B. A court determines that B’s supply of 700 lbs of Extra Special Grade Dog Chow per week does not comply with the contract and A wins the case. A few months later, A complains that B has not complied with the contract between November and December and sues B. Can B argue that supplying 700 lbs of Extra Special Grade Dog Chow per week complies with the contract?

8. A Brief Note on Contempt • What is contempt? • 2 kinds: CIVIL and CRIMINAL contempt. Which does this case involve? • Famous contempts: • Bill Clinton in the Paula Jones case • Susan McDougall: Whitewater investigation • Vanessa Leggett

9. Reading and Briefing Cases • You should have attempted to brief United States v. Hall • I handed out a sample briefing form for you to use • However, please note that there is more than one way to skin a cat (or brief a case). Eventually you will develop the briefing style that works best for you.

10. Why Brief Cases?

11. Why Brief Cases? • To analyze cases and focus on key ideas • To be able to compare and contrast different cases • To understand the legal arguments made in a case • To explore the public policy considerations affecting the outcome of a case

12. What Should Be In Your Brief? • BACKGROUND Identify parties, court, year of decision, name • PROCEDURAL HISTORY What procedural stage of litigation? What previously happened procedurally? • REMEDIES sought • PARTIES’ ALLEGATIONS • KEY FACTS identified by the court • KEY LEGAL DOCTRINES relied on by court in making decision • KEY POLICY INTERESTS at stake • HOLDING (main idea) • EFFECT OF DECISION

13. What’s a holding?

14. What’s a holding? • The holding of a case is the decision of the court (facts plus rules) • Students often ask “did I get the holding right” • But a holding is a question of interpretation. Some interpretations are more strongly supported or better reasoned than others • Determining the holding is really a matter of legal argument • Sometimes a court will say “We hold X” but later courts will interpret the holding of the earlier case as something different! • Over time, a series of holdings crystallize into legal rules

15. U.S. v. Hall: Basic Information • Name of case • Which court? • What is the year of decision?

16. U.S. v. Hall: Procedural History • What is the procedural history leading up to the decision that you read?

17. U.S. v. Hall: Procedural History • 1960: parents sue Duval County School Board • 1964: 5th Circuit decision in Braxton v. Board of Public Instruction for Duval County • 6/23/1971: District Court decision in Mims v. Duval County School Board, 5th Circuit affirms • 3/5/1972: District Court issues ex parte order. Order served on Florida Black Front members, but not, apparently, Eric Hall. • 3/9/1972: Hall is arrested and charged with criminal contempt. Hall is tried by the district court in a non-jury trial, found guilty, and sentenced to 60 days imprisonment. • Hall appeals to 5th Circuit

18. U.S. v. Hall: Allegations of Parties • What arguments does Hall make in support of his appeal?

19. U.S. v. Hall: Allegations of Parties • What arguments does Hall make in support of his appeal? • 1. Under a common law rule, the court has no power to punish him for contempt because he is a non-party acting in pursuit of his own interests rather than those of a party • 2. Rule 65(d) of the Federal Rules of Civil Procedure prevents the court’s order from binding him because Hall is not among the people specifically enumerated in Rule 65(d).

20. U.S. v. Hall: Support for Hall’s First Argument • What support does Hall muster for his first argument?

21. U.S. v. Hall: Support for Hall’s First Argument • 2 prior cases cases suggest that one who is not a party to a lawsuit can’t be bound by injunctive relief in that lawsuit • These cases are: (1) Alemite Manufacturing Corp. v. Staff (2d Cir. 1930) and (2) Chase National Bank v. City of Norwalk (1934).

22. Alemite Manufacturing Corp. (2d Cir. 1930) • District court injunction ordering D and certain others associated with D from infringing P’s patent. • A third party infringes P’s patent and is held in contempt by District Court • Second Circuit reverses order for contempt. Learned Hand: ‘it is not the act described which the decree may forbid, but only that act when the defendant does it.’

23. Chase National Bank v. City of Norwalk (1934) • P sues City of Norwalk for injunction to ban removal of P’s poles, wires, & electrical equipment • District court issues injunction barring D and certain others associated with D and “all persons whomsoever to whom notice of this order shall come” from removing Ps equipment • Supreme Court invalidates order insofar as it applies to people who are not parties or their associates but just have notice of order

24. U.S. v. Hall: Support for P’s Second Argument • Rule 65(d) of the Federal Rules of Civil Procedure • What does Rule 65(d) provide? (You should always look at the specific wording of statutes or rules that are at issue in a case)

25. Rule 65(d) • Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms . . .and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

26. The Government’s Allegations • Does the Government rely on case law stating that a non-party is bound by an injunction?

27. The Government’s Allegations • Does the Government rely on case law stating that a non-party is bound by an injunction? • No such cases are cited in 5th Circuit decision in Hall. Court does rely on general existence of in rem injunctions

28. What Key Facts Are Identified By the Court?

29. What Key Facts Are Identified By the Court? • Hall was a non-party to the Mims litigation • Hall had notice of the March 5 ex parte order. Court ordered Hall to be served with the injunction (was he?) • Order covers students and “other persons acting independently or in concert with them and having notice of this order.” • Hall violated the terms of the March 5 ex parte order restricting access to Ribault High School by going to the campus

30. What are the Key Legal Doctrines Relied on By the Court?

31. What are the Key Legal Doctrines Relied on By the Court? • At common law, courts have inherent jurisdiction of courts to preserve their ability to render judgment – basis for distinguishing Alemite and Chase • Rule 65(d) codifies but does not limit common law powers of courts. Can’t be read to limit inherent jurisdiction to protect ability to render binding judgments. Rule 65(d) embodies common law doctrine that injunctions bind not only parties but those identified in interest with them, in privity with them, or subject to their control

32. How does the 5th Circuit Distinguish Alemite and Chase?

33. How does the 5th Circuit Distinguish Alemite and Chase? • On the basis that activities of 3d parties in Alemite and Chase would not have disturbed adjudication of rights and obligations between original P and original Ds. • Hall’s activities, on the other hand, would disturb courts power to make binding judgment between Ps and Ds (that is, to order integration in the Duval County schools) • Courts of equity have inherent jurisdiction to punish for contempt to protect power to render judgment

34. QUESTIONING THE DISTINCTION • Failure to cite authority where non parties were bound by an injunction • Is the distinction made as strong as Judge Wisdom suggests? Wouldn’t the patent-holder in Alemite prefer that the decision cover all potential named defendants? • Are in rem cases involving ownership of property really like desegregating schools?

35. The Court’s Reading of Rule 65(d) • Does Hall fall within the specific language of Rule 65(d)? • How does the court interpret Rule 65(d)? • Is the court’s reading of Rule 65(d) correct? Did the court violate the federal rule? Why or why not?

36. What are the key policy interests at stake in U.S. v. Hall?

37. What are the key policy interests at stake in U.S. v. Hall? • Protecting rights of African Americans • Furthering integration • Note complexity regarding race • Underlying: due process and fairness. Hall would not have notice of hearing if injunction ex parte, nor, as non-party, even if it were inter partes. • 2 important themes we will see recurring in our study of procedure: • 1. Tension between formal rules and policies • 2. Power of courts – by stretching rules, court enlarges its own power

38. What is the holding of U.S. v. Hall?

39. What is the holding of U.S. v. Hall? • My statement of the holding is as follows: • A court has the power to hold in contempt a non-party who violates an ex parte restraining order in a school desegregation case, provided that the non-party has notice of the order.

40. UNITED STATES V. HALL • At the end of class, you can pick up a copy of my brief of the case. • Please remember that there are many ways to brief a case. My version is only one way.

41. BRIEFING: SUMMARY • Make sure your brief includes the name of case, court, year of decision, procedural history, allegations of the parties, key facts identified by the court, key legal doctrines relied on by the court in making its decision, key policy interests at stake, main idea of the case.

42. Carpenter v. Dee: Choosing a Cause of Action • You are an associate in a Boston law firm called Needham, Shaker and Coblentz • The senior partner, Carol Coblentz, sends you her initial memorandum (CB 1033) • After you read the memo, Carol calls you into her office for a strategy meeting on (a) the causes of action that may be available to Nancy Carter and (b) who are possible defendants, if the firm chooses to represent Ms. Carter

43. Key Facts • What are the key facts in the memo?

44. Key Facts • In 1985 Charlie Carpenter (25) was killed in a car accident. • Jeep overturned. Driven by Randall Dee • Modifications to jeep • CC survived by pregnant wife • Dee conveyed half-interest in a home to brother Peter (?) • Jeep owned by girlfriend Twyla Burrell. • Insurance on jeep was statutory minimum ($10,0000) • Dee stopped by Lowell police on several occasions • Dee convicted on 4 counts in criminal court

45. QUESTION ONE • WHO SHOULD BE THE PLAINTIFF(S)?

46. QUESTION TWO • WHO IS/ARE THE POSSIBLE DEFENDANT(S) AND WHAT IS/ARE THE CAUSE(S) OF ACTION AGAINST EACH DEFENDANT?

47. QUESTION THREE • WHAT ADDITIONAL INFORMATION DO WE NEED?

48. QUESTION FOUR • HOW WILL WE GET THIS ADDITIONAL INFORMATION?

49. QUESTION FIVE • WHAT REMEDIES ARE AVAILABLE?

50. QUESTION SIX • SHOULD WE TAKE THIS CASE?