Civil Procedure

Fall 2018
Professor Dan Klerman

 

Items that have changed recently are highlighted in green.

Lunches

I will be organizing lunches with small groups of students. Sign-up sheets will be availble in class. Lunches are in Rm. 431 (Dean's Dining Room, near the southeast corner of the building) or Rm 106 (next to the Moot Court room) and will usually take place on Fridays starting at 1PM. Discussion need not be limited to Civil Procedure. In fact, I hope it's not. To preserve an informal atmosphere, I will limit lunch to 10 students. Please bring your lunch or purchase it before 1PM.

Class Schedule and Materials

The topics to be covered in each class are tentative and subject to change at any time (with adequate notice, of course). Note that class on Fridays will go until noon (not 11:50).  This will obviate the need to schedule a make-up class for 9/10. The review class will make-up for 11/9.  

 

Class #

Date Topic Slides Model Answers Handouts
1 M 8/20 Greene v Lindsey CP01 CPM01  
2 F 8/24 Service of Process under FRCP CP02 CPM02 Pleading Handout
3 M 8/27 Complaint CP03 CPM03  
4 F 8/31 Iqbal; Rule 11 CP04 CPM04  
  M 9/3 No USC Law Classes. Labor Day      
5 F 9/7 A Civil Action; Answer; Amendment CP05 CPM05 1995 Exam Q
  M 9/10 Class Canceled      
6 F 9/14 Relation Back; 1995 Exam (Part II) CP06 CP06M  
7 M 9/17 Discovery I. Relevance CP07 CP07M  

8

F 9/21 Discovery II. Work Product and Experts CP08   Phillips
9 M 9/24 Discovery III: Sanctions, A Civil Action      

10

F 9/28 Summary Judgment      
11 M 10/1 JMOL and New Trial      
12 F 10/5 Appeal; German Procedure      
13 M 10/8

1995 Exam (Part III)

     
14 F 10/12 Settlement; ADR      
15 M 10/15 Fees; Settlement & Fees in A Civil Action; Joinder      
16 F 10/19 Mediation      
17 M 10/22 Class Action; Fed Question Jurisdiction      
19 F 10/26 Diversity Jurisdiction; Supplemental Jurisdiction      
20 M 10/29 Erie; Choice of Law      
21 F 11/2 Personal Jurisdiction I. International Shoe      
22 M 11/5 Personal Jurisdiction II. WWVW & McIntyre      
23 F 11/9 Class Canceled      
24 M 11/12 Personal Jurisdiction III. Burger King and Internet      
25 F 11/16 Venue      
26 M 11/19 2012 Exam      
  F 11/23 No USC Law Classes.  Thanksgiving Break      
27 M 11/26 Res Judiciata and Collateral Estoppel      
28 F 11/30 TBA      
29 TBA

Review Class.

     

 

Attendance

Because I will be posting an audio recording of each class as well as my PowerPoint Slides and model answers, it may be tempting to skip class. To counteract that temptation, class attendance is mandatory.

Class Participation

Participation in class discussion is an essential part of the learning process, because it helps you get more comfortable with public speaking and thinking on your feet, and because lisenting carefully to answers provided by fellow students helps you see things from different perspectives. My empahsis on class participation and writing (below) reflects my view that students learn most when they actively engage rather than passively read and listen.  This view goes back at least to Benjamin Franklin, who wrote, "“Tell me and I forget. Teach me and I remember. Involve me and I learn.”  I will call on students randomly, whether they volunteer to answer a particular question or not. I will sometimes ask for volunteers.  If you are particularly anxious about being called on in class, please talk to me so that we can find a way to make you more comfortable.

Email Me If You Will be Absent or Unprepared

If you are unprepared for class or you know you will be absent, please e-mail me at dklerman@law.usc.edu well before class begins (at least 15 minutes, and preferably the night before). It is better for everyone if I do not call on someone who is absent or unprepared.  If you email me for this purpose, please put "CivPro" in the subject line so that I know to read your email before class begins.

Laptops and Other Screens

Devices with screens -- laptops, tablets, cellphones, eReaders, iPads, Kindles, and similar devices --- may not be used during class for notes or for any other purpose. While in class, please focus on thinking, not note taking. To make most note taking unnecessary, I will distribute my PowerPoint slides and post an audio recording of each class.


Audio Recordings
Audio recordings of every class will be posted soon after the relevant class has ended.  To access recordings, log onto Blackboard and click on “Recordings” in the left panel.  You do not need to ask permission from me to access recordings

 

Model Answers
Model answers to all class writing assignments will be distributed after all question have been discussed in class. Distribution will use Hogo, a secure document sharing and distribution service.  I wrote these model answers myself.   Model answers cannot be printed, downloaded, or shared.  This enables me to reuse questions from year-to-year, and ensure that no students have an unfair advantage through access through answers to the prior year's questions. Even if you figure out how to defeat Hogo's security provisions, please do not share model answers with students in future classes or anyone else.  Giving answers to future students will not really help them (because they will not have the benefit of learning the material themselves) and will cause unfairness.

Blackboard Quizzes

For many classes, I will post some multiple-choice questions to Blackboard.  They are in the "assignments" section of Blackboard. These questions are to help you learn the material. They are required, but I do not plan to include your scores in your grades. Nevertheless, please note that I can see if you have completed the quizz and how you did. If I find that a substantial number of students are not completing the Blackboard quizzes or are not taking them seriously, I reserve the right to start including Blackboard quizz grades in your final grade. If I do so, I will announce the change in class, and only quizzes taken after the announcement will count toward your grade. After you “submit” your answer to each question, please be sure to click on “ok” in the lower right hand corner to “review results.” This will tell you if you got the right answer, and it will provide an explanation of the legal reasoning behind the correct answer. This feedback is a key part of why I am putting questions on Blackboard. I want you to get feedback on the easy questions (the ones I put on Blackboard) before you tackle the harder questions (the ones we will discuss in class).

Newspapers and Public Radio

If you don't already do so, I strongly encourage you to start keeping up with current events by subscribing to a daily newspaper and/or listening to public radio. As a lawyer, you need to understand business, politics and culture in order to understand your clients' problems and perspectives. In addition, such understanding will help you interview better for jobs, make you a better citizen, and make you a more interesting conversation partner at parties and other events. As a student, you are eligible for substantial discounts. In particular, I recommend:

The Wall Street Journal. $1 per week print and digital subscription.

https://buy.wsj.com/wsjtls17/?trackingCode=aaqntppl&cid=WSJ_SC_NA_SALE_PROF

The New York Times. $1 per week web and smartphone subscription. http://www.nytimes.com/subscriptions/edu/lp8LQFK.html?src=898Q4&campaignId=393W8

KPCC. 89.3 FM. online at www.kpcc.org. Free mobile apps.

Note also that, if you are planning to live in a different city after graduation, you can listen to the public radio station(s) for that city on the web and via free mobile apps. That way you can get relevant local as we well as national and international news. Many cities' newspapers are also available online, but local newspapers are not a substitute for national newspapers such as the Wall Street Journal and New York Times.

Limited Circulation of Class Materials
Class materials, including model answers, PowerPoint Slides and audio recordings, are for use by Fall 2018 Civil Procedure students only. You may not share them with future Civil Procedure students or anyone else. Doing so would be a violation of both USC Law School rules and copyright law. The purpose of this policy is to preserve my ability to reuse some questions in future classes. If model answers, PowerPoint Slides, audio recordings, or other class materials are shared with next year's class, students with access to those materials will have an unfair advantage and will be deprived of the benefit of working out the answers themselves.

Reading Ahead

I do not recommend reading ahead, because each reading builds upon the prior class's discussion. So, if, for example, you try to do both Monday's and Friday's readings over the weekend, you will not be able to fully comprehend Friday's readings, because you will not yet have had the benefit of Monday's class discussion.  If you have extra time, I suggest you review rather than read ahead. If, because of special circumstances, you need to read ahead, please let me know and I will give you the assignment in advance.  If your need to read ahead is related to a disability for which confidentiality is desired, please contact the appropriate administrator so that your request can be transmitted to me anonymously.

Research

Unless specifically stated, I neither expect nor encourage you to do legal research when preparing for my class.  Legal research is a very important skill, but it is not a significant part of this class.  When I assign questions, I expect you to answer them based on class materials.  Even when I give you a question that is based on a real case, I discourage you from trying to find the case upon which the question was based. I discourage research for three reasons.  (1) I may have changed the facts of a case, so the reasoning in the case may not be applicable to the question I have asked.  (2) In class, I am seldom looking for a single right answer.  Rather, I am hoping that you will discover several plausible ways of addressing the legal issue. If you find a case on point, you may find one plausible answer to my question, but not other plausible answers.  (3) The key goal of this class (and most of your legal education) is to help you learn how to make good legal arguments on your own.  If you find legal arguments through research, you won't develop the skills you need to formulate your own legal arguments. For similar reasons, I discourage you from trying to consult materials from prior years of my class (and former students are forbidden to share them with you).

Prof. Klerman's Office Hours

Fridays noon-1PM

Office hours will start in Rm. 101 and move to my Office (Rm. 460) around 12:15. If I am not in my office, check Rm 101 and vice versa.

Other times by appointment.

I will also try to answer as many questions as possible in the classroom immediately after each class, unless I have a conflicting obligation. Unfortunately, I run the Center for Law & Social Science (CLASS) workshops, which start Mondays at noon, so I will not be able to stay after class on Mondays.

Note that office hours are canceled when that day's class is canceled (e.g. 11/9). Make-up office hours may be announced.

Teaching Assistant Office Hours

Wednesdays 12:50-1:50 in Library Study Room 307A.

You can also email a TA to schedule a meeting, (See below)

 

Teaching Assistant Names and Email Addresses

Savannah Jensen. savannah.jensen.2020@lawmail.usc.edu
Nicole Meier. nicole.meier.2020@lawmail.usc.edu

Khoa Nguyen. khoa.nguyen.2020@lawmail.usc.edu

Prof. Klerman's Contact Information
Email: dklerman@law.usc.edu
Phone: (213) 740-7973
Fax: (213) 740-5502
Office: Room 460
Mailbox: Room 305

Prof. Klerman's Assistant, Chris Emerson

Email: cemerson@law.usc.edu

Phone: 213 740 2099

Office: Rm. 444

Note that Chris Emerson is not a law student.  He is a full-time USC employee.  In some places, he might be called a secretary.

 

Writing Assignments

 

I plan to assign short, graded writing assignments for each class. These assignments serve three very important functions. (1) Writing helps you think more clearly. (2) These writing assignments are good practice for exams. (3) These writing assignments are good practice for the writing you will be doing in your legal careers. 

 

My assistant, Chris Emerson, will email you your writing group number.  The Syllabus and/or PowerPoint slides explaining the assignment will state which writing group should do which question(s).

These writing assignments will be short. You will be responsible for roughly one question per class. Sometimes you will be responsible for two or three questions. Sometimes you will be reponsible for zero questions.  If you have written one, thoughtful, single-spaced page (with reasonable font and margins), you may stop and receive full credit, even if you have not fully answered the assigned question or questions.  If you answer the assigned question(s) thoughtfully in less than one pages, that is also fine. You are also free to write more than one page. In fact, I encourage you to write more than one page, if you think you need more than one page to throroughly answer the assigned question(s), although that will rarely be necessary. However, if you are pressed for time, you may stop when you have written one page.  That is, you are required to either (a) answer the question(s) thoughtfully (whether that takes less than one page or more than two page), or (b) write at least one thoughtful page (even if you don't fully answer the question(s)). I don't expect polished prose. I just want to ensure that you are thinking carefully about the issues.

When you submit your writing assignments, please use the following format for the document name:

 

[Last name][First name][Group number][Number of class for which assignment is due][Short description of assignment]

 

So, if I was in writing group 1 and was turning in the assignment for the second class on questions relating to Service of Process under theFRCP readings, the document would be named:

 

                                 KlermanDaniel12ServiceFRCP

 

Using this naming convention will make it much easier for the TAs to keep track of your assignments.

Writing assignments should be submitted in Microsoft Word format by 9:45AM to Blackboard. To submit through Blackboard, log on to Blackboard through the my.usc.edu portal or by typing blackboard.usc.edu in your browser's address box. Select the course (Civil Procedure), navigate to “Assignments” (left-hand navigation pane), and locate that day’s writing assignment. Upload your assignment in Microsoft Word format and click “Submit.”  You will not receive a confirmation email, but you can confirm the assignment was submitted successfully by returning to the assignment’s page on Blackboard.

 

You may discuss the questions with classmates (and, indeed, I encourage you to do so), but assignments must be written up independently. You may not consult persons who have taken Civil Procedure before. You may not research any of the assignments. You must do them solely by consulting class materials. The only other source you may consult is a legal dictionary or regular dictionary. You you may NOT use the internet to research the law or find cases that you think are relevant. You may not consult any materials prepared by me for a prior year's class nor any materials prepared by former Civil Procedure students. At the bottom of each assignment, please type:

 

I have not consulted any materials other than those assigned for this class and a dictionary.

Writing assignments will be read and commented on by the class TA. He or she will also pass along to me papers which he thinks either (a) do not show adequate effort or (b) show outstanding understanding of the materials. Grades of those who, in my opinion, submit papers not showing adequate effort may be decreased, while grades of those who, in my opinion, submit outstanding papers may be increased. You may skip four writing assignments assigned to your group without permission or making them up. In addition to answering questions assigned to your writing group, you are encouraged to answer questions assigned to other writing groups, because you will learn by writing out the answers and from the feedback the TA provides.  If you turn in answers to questions not assigned to your writing group, you will get a small amount of extra credit. 

For writing assignment grades, click HERE to open the link and find your writing group number at the bottom of the spreadsheet.  To preserve anonymity, your grade is listed according to the webnumber my assistant, Chris Emerson, will have emailed you.

If you turn in only answers to the required questions, you will probably get a 7. If one of your answers is outstanding, you will receive a 9.  If more than one of your answers is outstanding, you will receive 2 extra points for each additional outstanding answer. If your answer to a required question is missing or shows inadequate effort (which is rare), you will get a 0. 

 

If you turn in answers to all the questions (required and mandatory), will will probably get an 8. If one of your answers is outstanding, you will receive a 10. If more than one of your answers is outstanding, you will receive two extra points for each additional outstanding answer.  If your answers to the mandatory questions show inadequate effort (which is rare), you will get a 0. 

If no required questions were assigned, but you turn in answers to answers to all optional questions, you will probably get a 4.  You will get a 6 if one of your answers was outstanding.  If more than one of your answers is outstanding, you will receive two extra points for each additional outstanding answer. You will get an "N" if your your writing shows inadequate effort.

If you turn in answers to the required questions and some, but not all, optional questions, your paper will be graded as though you had turned in answers only to required questions, except you have more chances to get a 9 or more, because there are more answers that might be outstanding.  Turning in answers to optional questions is also worthwhile, even if you do not answer all the optional quesitons, because you will learn from writing out your answers and from feedback from the TAs, and because you have the opportunity to earn two or more points from outstanding answers.

If no required questions were assigned, but you turn in answers to some, but not all, optional questions, you will probably receive an N.  If one of your answers is outstanding, you will receive a 2.  If more than one of your answers is outstanding, you will receive two extra points for each additional outstanding answer. Turning in answers to optional questions is also worthwhile, even if you do not answer all the optional quesitons, because you will learn from writing out your answers and from feedback from the TAs, and because you have the opportunity to earn two or more points from outstanding answers.

 

If you fail to turn in a required assignment by the beginning of class, you will receive a zero.

If you turn in an assignment late (but before class begins), that will be noted. If it happens frequently, points will be deducted from your writing grade.

If your failure to turn in a required assignment is excused by me, you will receive an E.

Note that TAs are instructed to give count as "outstanding" only the best answers to a question.  Also, answers to questions that are easy (and therefore that nearly everyone answers equally well) cannot count as "outstanding."

 

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Statement on Academic Conduct and Support Systems

[This is an official USC statement, not written by Professor Klerman]

 

Academic Conduct:

Plagiarism – presenting someone else’s ideas as your own, either verbatim or recast in your own words – is a serious academic offense with serious consequences. Please familiarize yourself with the discussion of plagiarism in SCampus in Part B, Section 11, “Behavior Violating University Standards”  https://policy.usc.edu/scampus-part-b/.  Other forms of academic dishonesty are equally unacceptable. See additional information in SCampus and university policies on scientific

misconduct, http://policy.usc.edu/scientific-misconduct.

 

Support Systems:

Student Counseling Services (SCS) - (213) 740-7711 – 24/7 on call

Free and confidential mental health treatment for students, including short-term psychotherapy, group counseling, stress fitness workshops, and crisis intervention. https://engemannshc.usc.edu/counseling/

 

National Suicide Prevention Lifeline - 1-800-273-8255

Provides free and confidential emotional support to people in suicidal crisis or emotional distress 24 hours a day, 7 days a week. http://www.suicidepreventionlifeline.org

 

Relationship & Sexual Violence Prevention Services (RSVP) - (213) 740-4900 - 24/7 on call

Free and confidential therapy services, workshops, and training for situations related to gender-based harm.  https://engemannshc.usc.edu/rsvp/

 

Sexual Assault Resource Center

For more information about how to get help or help a survivor, rights, reporting options, and additional resources, visit the website: http://sarc.usc.edu/

 

Office of Equity and Diversity (OED)/Title IX compliance – (213) 740-5086

Works with faculty, staff, visitors, applicants, and students around issues of protected class.  https://equity.usc.edu/

 

Bias Assessment Response and Support

Incidents of bias, hate crimes and microaggressions need to be reported allowing for appropriate investigation and response. https://studentaffairs.usc.edu/bias-assessment-response-support/

 

Student Support & Advocacy – (213) 821-4710

Assists students and families in resolving complex issues adversely affecting their success as a student EX: personal, financial, and academic. https://studentaffairs.usc.edu/ssa/

 

Diversity at USC – https://diversity.usc.edu/

Tabs for Events, Programs and Training, Task Force (including representatives for each school), Chronology, Participate, Resources for Students

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Questions for Future Classes

The rest of this webpage contains questions for future classes. You can ignore them.

A Civil Action Questions for later readings

Discovery (pp. 123-263)

Explain how Schlichtmann got information to build his case.  What discovery devices did he use? What methods other than discovery did Schlichtman use to get information?

Explain what happened on pp. 162-65. Why did Cheeseman and Frederico object when Schlichtmann asked Love whether he was concerned when he found out that the wells were contaminated? Why didn’t they instruct Love not to answer? Why did Schlictmann ask these questions?

Explain what happened at “the woodshed”? What rules had Schlichtmann violated which led to the woodshed?  Why does Shlichtmann say he’s “sorry Judge Skinner wasn’t a party to the agreement“? (pp. 222 & 226) What sanction(s) did the judge impose?  Why was the woodshed so important?

If you were Schlichtman, how would you have handled the settlement negotiation with Facher differently? (pp. 228-31). Why do you think Schlichtman acted as he did?

 

Settlement & Fees (pp. 146 to end)

In what ways does A Civil Action confirm the validity of Polinsky’s economic model of settlement?

In what ways does A Civil Action contradict Polinsky’s economic model of settlement or suggest that the real world is more complex than that model?

Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received?

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Assignment for First Class

  (1) Email my assistant, Chris Emerson, cemerson@law.usc.edu by 9AM Friday morning, August 17. 

The subject line should read: CivPro webnumber

The body of the email should have two pieces of information

1. The first name you would like me to use in class.  For example, if your first name is "Michael," put "Mike" if you would like me to use that nickname or "Michael" if you would like me to use your formal name.

2. A phonetic guide to any part or parts of your name that are hard to pronounce. For example, I might write, "Klerman rhymes with turban."

Chris will email you back with your writing group and web #.  For an explanation of your writing group and web #, see "Writing Assignments" below.

   (2) Please make sure that you received an email from me Tuesday evening, August 14, at your @lawmail.usc.edu address.  If you did not receive an email from me, please contact USC Law Computing Help to resolve the issue. More generally, please make sure that you have set up your email so that you can easily check your @lawmail.usc.edu account at least once a day.  Not infrequently, I send clarifications or modifications of assignments through email, and it is important that you receive such emails.  More generally, although you may prefer texting or social media for personal communication, email remains the standard for professional and business communication, so it is a good idea to get used to checking your email regularly. 

   (3) Buy class materials:

        (a) Yeazell, Civil Procedure (9th edition) (required, available at the bookstore bundled with Glannon, Civil Procedure: Examples and Explanations. Older editions are not acceptable substitutes. Note that I am requiring you to buy the hardcover casebook, but not the softcover supplement.)

        (b) Harr, A Civil Action (Vintage Paperback) (required, available at the bookstore. The movie is fun but is not a substitute for reading the book)

        (c) Glannon, Civil Procedure: Examples and Explanations (8th edition)(required, available at the bookstore bundled with bundled with Yeazell casebook. Older editions are not acceptable substitutes)

   (4) Download an electronic copy of the Rules Pamphlet by clicking here for a PDF version or here for an MSWord version. I will distribute hard copies of the Rules Pamphlet in class on Monday.

   (5) Read the 14th Amendment, which can be found on the first page of the Rules Pamphlet.

   (6) Click here to download Greene v. Lindsey and related materials. Read the materials and think carefully the questions 1-8 on p. 11.  These are questions that we will discuss in class on Monday.  It might be helpful to read the questions before reading the case.  I encourage you to discuss the questions with your classmates. Make sure you understand all the technical terms mentioned in the case.  For example, what is a "forcible entry and detainer" action?  What is a "summons"? What is "summary judgment"? Legal dictionaries, such as Black's Law Dictionary, will help. The library has a hard copy of Black's.

   (7) Questions 1-8 on the last pages of the document with Greene v. Lindsey are an optional writing assignment.  If you would like, you can type out your answers and submit them using Blackboard..  Typing out your answers will help you prepare for class, help you learn the material better, and earn you a small amount of extra credit.  You will also benefit from feedback from the TA. See instructions below (under the heading "Writing Assignments") for how to submit a writing assignment.

   (8) You may find it helpful to read pages 347-48 of Glannon, Civil Procedure: Examples and Explanations.   The rest of Chapter 18 will be particularly helpful as you prepare for Friday's class.

   (9) Read this webpage carefully and make sure you understand all class policies.  We will not review them in class, but you are responsible for all of the information, rules and policies on this page.

  (10) Take the Blackboard quizzes labeled "Administrative Q1," "Administative Q2" through "Administrative Q5."  Each "quiz" is one question, so there are 5 questions.  They are easy and relate to the class policies on this webpage. (See (9) above). For instructions and information on Blackboard quizzes, see below under the heading "Blackboard Quizzes."

   (11) Start reading Harr, A Civil Action.  You should have read the first four chapters (the first 119 pages, through "Rule 11") by Friday, September 7.  I recommend that you read (or reread) Chapter 4 ("Rule 11" pp. 85-119) after we discuss Rule 11 in class on October 31. As you read, keep in mind the following questions, which we will discuss in class:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

If Cheeseman was correct that there was no evidence that TCE and the other relevant chemicals cause leukemia, why didn’t he file a 12(b)(6) motion to dismiss the complaint?

Would a Rule 12(b)(6) motion be granted if the case were litigated today?

Answer the following questions both under the current Rule 11 and under the rule as it existed in 1982. In 1982, Rule 11 read, in relevant part:


Every pleading of a party represented by an attorney shall be signed by at least one attorney of record …. The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. …. For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action.


What part of Rule 11 did Cheeseman think Schlichtmann had violated?


Is Cheeseman's argument for Rule 11 sanctions more plausible under the current rules or under the 1982 rules? How were the consequences of violation different in 1982?


Could Schlichtmann have made a plausible Rule 11 motion? (See pp. 90-94). What part(s) of Rule 11 would Schlictmann rely on?

 

 

 

 

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