SBBC : Mayweather Boxeo GOAT edition

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Personal info post, it's against the rules, which is why Mike couldn't post my fat bearded pic when he found it and had to go behind the scenes and send it to all of you seperately.
I always thought it was Personal Information Pwn.
 
So I just spent 5 hours on Federal Rules of Civil Procedure, if I wake up tomorrow and don't remember any of this shit imma lose it fam
That sounds terrible.
 
That sounds terrible.

Y&S, 317-21, 330-338


CHAPTER 5 Incentives to Litigate

A. LITIGATION IN THE UNITED STATES AT THE START OF THE 21st CENTURY

B. REASONS TO LITIGATE: DOLLARS, ORDERS, AND DECLARATIONS

1. Damages

***Troupe v. C & S Wholesale Grocers, Inc., 2009 WL 1938787 (M.D. Ga. 2009) [pg 306]

a. Damage Amounts: Ceilings and Floors

b. Categorizing Damages

2. Specific Relief

***Lucy Webb Hayes Natl. Training School v. Geoghegan, 281 F. Supp. 116 (D.D.C. 1967) [pg 315]

3. Declaratory Relief [pg 317-321]

- Occasionally a party has a problem that neither damages nor specific remedy can solve.

- Party may seek declaration of rights from court without being in position to seek damages or injunction.

- Unlike equitable relief, declaratory relief can be sought even when other remedies are available.

- Federal Declaratory Judgment Act (1911), 28 U.S.C. §2201-2202.

- Procedure governed by F.R.C.P. Rule 57.

- Declaratory judgments are implicit in every damage judgment or injunction; “We give judgment in amount of X because… (implicit declaratory judgment).”

- Declaratory judgments most commonly sought in insurance and patent litigation.

4. Temporary Remedies

a. Preliminary Injunctions and Temporary Restraining Orders: The Basic Problem

City of Los Angeles v. Lyons, 103 S.Ct. 1660 (1983)

Facts: Plaintiff alleges defendants illegally applied chokehold causing injury. Plaintiff brought civil rights action seeking damages, injunctive relief and declaratory relief.

History: On remand after an appeal, the US District Court for the Central District of California granted preliminary injunctive relief, and the Ninth Circuit Court of Appeals affirmed.

Issue: Whether injunctive relief can be granted when irreparable harm to plaintiff might occur in absence of injunction.

Holding: Plaintiff must demonstrate that irreparable injury is likely in absence of injunction; past wrongs do not in themselves amount to that real and immediate threat of injury.

Rule: The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again – a “likelihood of substantial and immediate irreparable injury.”

Reasoning: That plaintiff may have been stopped and illegally choked in the past does nothing to establish a real and immediate threat that he will again be stopped and illegally choked. He would have to allege that he would have another encounter with police and assert that either all police officers always illegally choke or that police have been ordered to do so.

Order: Reversed.

Trump v. Int’l Refugee Assistance Project, 857 F.3d 554 (cert. granted June 26, 2017)

Facts: Plaintiffs brought action for declaratory and injunctive relief against defendants regarding executive order temporarily suspending entry of nationals from six predominantly Muslim nations, and suspending for 120 days the USRAP and decreasing 2017 refugee admissions. US District Court for District of Maryland granted plaintiffs’ motion, defendants appealed.

Holdings:

- Article III standing can be premised on a threatened injury rather than actual injury, as long as the threat of injury is both real and immediate.

- National security may be the most compelling of government interests, but that does not mean it will always tip the balance of equities in favor of the government, when determining whether to issue a preliminary injunction against a government action; a claim of harm to national security must still outweigh the plaintiff’s competing claim of injury.

- Upholding the Constitution undeniably promotes the public interest, as element for determining whether to issue preliminary injunction.


Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273 (7th Cir. 1992)

Facts: Defendant landlord intended to install defendant competitor as anchor tenant, plaintiff tenant sued for breach of contract. US District Court for the Eastern District of Wisconsin granted permanent injunction enforcing exclusivity clause in lease. Defendants appealed.

Holding: When issue is whether to grant permanent injunction, rather than temporary, burden is to show that damages are inadequate, not that denial of injunction will work irreparable harm; “irreparable” in the injunction context means not rectifiable by entry of final judgment, and has nothing to do with whether to grant a permanent injunction, which is the final judgment.

***Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) [pg 322]

b. Provisional Remedies and Due Process [pg 330-338]

- All procedures are subject to examination under the Due Process Clause.

***Fuentes v. Shevin, 407 U.S. 67 (1972) [pg 331] CASE BRIEF

Fuentes v. Shevin, 407 U.S. 67 (1972)

Facts: Appellant Fuentes purchased household goods (oven and stereo) from appellee on installment payment plan. Prior to completion of full payment, a dispute arose over servicing and appellee brought action for repossession of goods. Upon filing complaint, and prior to appellant receipt of summons, appellee obtained writ of replevin. Florida statute allows issuance of writ via ex parte application made with filing of complaint and security bond.

History: Appellant instituted present action in federal district court seeking declaratory and injunctive relief, district court upheld the constitutionality of Florida’s statute.

Issue: Whether statutes violate due process if they authorize replevin without prior notice and opportunity to be heard.

Holding: The prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor.

Rule: Although due process tolerates variances in the form of a hearing “appropriate to the nature of the case”, and “depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any], the court has traditionally held that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect. “That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.”

Reasoning: As a matter of constitutional principle, the statute’s bond requirement is no replacement for the right to a prior hearing. While the existence of bond and liability requirements may be relevant to determining the form of hearing, they aren’t in themselves enough to obviate the due process right to a prior hearing. The “extraordinary situations” unusual circumstances exception doesn’t apply in this case because the statutes serve no governmental or public interest, there is no special need for very prompt action, and they abdicate state control over replevin power to private parties.

Order: District Court judgments vacated and remanded for further proceedings consistent with this court’s opinion.


American Mach. & Metals v. De Bothezat Impeller Co., 166 F.2d 535 (1948)

Facts: P American desires to terminate contract and continue selling products. D has led P to believe D will sue P if P terminates contract and does not cease manufacturing/selling products.

History: P sought declaratory judgment of rights, district court granted D’s motion to dismiss.

Issue: Whether justiciable controversy for declaratory judgment exists when disputed rights are contingent on an irrevocable choice which has yet to be made.

Holding: The Declaratory Judgments Act was designed to obviate just this sort of peril.

Rule: The difference between an abstract question and a “controversy” is one of degree. Where there is an actual controversy over contingent rights, a declaratory judgment may be granted.

Reasoning: Very purpose of declaratory judgment is to prevent accrual of avoidable damages incurred in a dispute over rights which are contingent on an irrevocable choice.

Order: Judgment reversed and cause remanded for trial on the merits.

***North Georgia Finishing Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) [pg 336]

- Prejudgment seizure of a debtor’s property without notice and an opportunity for a hearing is unconstitutional.

- Different kinds of property will not be distinguished in applying the due process clause.

***Connecticut v. Doehr, 501 U.S. 1 (1991) [pg 336]

- Due process challenge to Connecticut statute permitting attachment of real estate to any civil action.

- P filed lien against D property in a battery case unrelated to real estate.

- D continued to live in house throughout attachment.

- Court held that, without either a pre-attachment hearing or a bond, there was too serious a risk of error in depriving D of a significant asset.

***United States v. Good, 510 U.S. 43 (1993) [pg 336]

- 4 years after D pled guilty to drug charges, P filed action seeking forfeiture of D’s home and seized the home pursuant to seizure warrant

- Court held that exigency of a civil forfeiture action – in which property used for unlawful purposes is seized and forfeited to the government – did not justify the seizure of real property without notice.

***Matthews v. Eldridge, 424 U.S. 319 (1976) [pg 336]

- After having social security benefits terminated, P brought action challenging the constitutional validity of administrative procedures established by Secretary of Health, Education and Welfare for assessing whether there exists a continuing disability.

- US District Court for Western District of West Virginia ruled unconstitutional.

- Court of Appeals affirmed.

- US Supreme Court reversed, holding that an evidentiary hearing is not required prior to termination of disability benefits, and that present administrative procedures for such termination fully comport with due process.

- Court set forth 3 factors that normally determine whether individual has received Constitutional due process: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; (3) the Gov’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

- By weighing these concerns, courts can determine whether State has met “fundamental requirement of due process” – “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”

- City of Los Angeles v. David, 538 U.S. 715, 716 (2003)

- Injunctive equivalent of a seizure without a hearing is a temporary restraining order (TRO).

- TROs may be issued with even less process than preliminary injunctions; may be issued ex parte:

- No time to schedule a hearing (bulldozers about to excavate protected area);

- Notice itself might trigger the action to be restrained (battering spouse).



Y&S, 338-66



C. FINANCING LITIGATION

- One of the first things a lawyer wants to know focuses on the remedy sought: what damages are at stake, what injunctive or other relief.

- Litigation as an investment.

1. The “American” and “English” Rules About Attorney’s Fees [340]

- American: each party pays own fees; encourages “law reform” suits and discourages meritorious low- damage suits

- English: loser pays winner’s fees; encourages strong but low-damage cases and discourages high-cost “law reform” suits

2. Insurance, the Contingent Fee, and Alternative Litigation Finance [342]

a. Insurance

b. The Contingent Fee

c. Alternative Litigation Finance

3. Public Subsidies and Professional Charity [353]

4. From Fee Spreading to Fee Shifting [356]

a. The Common Fund

b. By Contract

c. By Common Law

***Chambers v. NASCO, Inc., U.S. 32 (1991) [pg 357]

- Inherent power of the court to control behavior designed to thwart just operation of legal system.

- Court upheld imposition of nearly $1 mil fees on party acting in bad faith.

***Alyeska Pipeline Service v. Wilderness Society, 421 U.S. 240, 257 (1975) [pg 358]

- US Supreme Court refused to create generalized common law doctrine shifting fees in “public interest” cases but said that Congress remained free to do so.

d. By Statute

- 42 U.S.C. §1988(b)

***Evans v. Jeff D., 475 U.S. 717 (1986) [pg 361]

- State’s offer to settle to settle class action on condition of waived attorney’s fees is upheld over contentions from Ps’ counsel that the offer created a conflict of interest.

- “The defendant’s potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits.”

***Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001) [pg 361] CASE BRIEF

Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001)

Facts: P care home ran afoul of state regulation requiring residents to be sufficiently ambulatory to get out of burning buildings. P and other similar W.Va. facilities sued alleging state regulation violated federal housing and disability statutes. Ps sought injunctive and declaratory relief. D agreed to stay enforcement of the cease-and-desist orders pending resolution of case and parties began discovery. W.Va. legislature then enacted two bills eliminating the “self-preservation” requirement, and D moved to dismiss the case as moot.

History: District Court granted D’s motion, Ps requested attorney’s fees as “prevailing party” under the FHAA, 42 U.S.C. §3613(c)(2). District Court denied Ps’ motion and the Court of Appeals affirmed.

Issue: Whether statutory “prevailing party” term includes a party that has failed to secure a judgment on the merits of a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.

Holding: It does not. A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.

Rules: The “catalyst theory” posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. The “American Rule” instructs that attorney’s fees will not be awarded absent “explicit statutory authority.”

Reasoning: The “catalyst theory” does not create a “material alteration of the legal relationship of the parties” because there is no judicially sanctioned change; it is a voluntary change. Legislative history is insufficient to alter the accepted meaning of “prevailing party”. Ps discount the incentive that the “catalyst theory” may have upon a defendant’s decision to voluntarily change conduct which may not even be illegal. Evans v. Jeff D. held that “the defendant’s potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits”, and the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct.

Order: The judgment of the Court of Appeals is affirmed.

***CRST Van Expedited Inc., v. Equal Employment Opportunity Commission (2016) [Supp.]

- EEOC sued employer for hostile work environment sexual harassment against female employees in violation of Title VII. U.S. District Court for Northern District of Iowa dismissed the suit, granting employer’s motions for summary judgment and attorney’s fees as a prevailing party. U.S. Court of Appeals for Eight Circuit remanded, District Court awarded attorney’s fees, EEOC appealed, Court of Appeals reversed and remanded holding that Title VII defendant can be a prevailing party only by obtaining a ruling on the merits and that District Court’s dismissal of claims was not a ruling on the merits. Certiorari granted.

- Supreme Court held that a favorable ruling on the merits is not a necessary predicate to find that a defendant has prevailed under Title VII’s attorney fee provision.

- Vacated and remanded.

***Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013) [Supp.]

- Employee sought relief under Fair Labor Standards Act on behalf of herself and others. U.S. District Court for Eastern District of Pennsylvania dismissed for lack of subject matter jurisdiction after employer extended offer of judgment in full satisfaction of employee’s alleged damages, fees and costs. Employee appealed. U.S. Court of Appeals for Third Circuit reversed and remanded. Certiorari granted.

- Supreme Court held that collective action brought by a single employee on behalf of herself and all similarly situated employees for employer’s alleged violation of the FLSA was no longer justiciable when, as conceded by plaintiff-employee, her individual claim became moot as a result of offer of judgment by employer in amount sufficient to make her whole.

- Rule 68.

- Reversed.

***Marx v. General Revenue Corp., 133 S.Ct. 1166 (2013) [Supp.]

- Customer brought action against debt collector alleging violation of the Fair Debt Collection Practices Act. U.S. District Court for the District of Colorado entered judgment for debt collector and ordered customer to pay debt collector $4,543.03 in costs, and subsequently denied customer’s motion to vacate award of costs. Customer appealed, Court of Appeals for the Tenth Circuit affirmed. Certiorari granted.

- Supreme Court held that the costs provision of the FDCPA is not contrary to federal rule of civil procedure governing award of costs, and thus does not displace a district court’s discretion to award costs to a prevailing party under the rule, and so a district court may award costs to prevailing defendants in FDCPA cases without finding that plaintiff had brought the case in bad faith and for the purpose of harassment.

- Rule 68(d).

- Affirmed.

***Lefemine v. Wideman, 133 S.Ct. 9(2012) [Supp.]

- Abortion protestor, on behalf of himself and organization, sued sheriff and deputies under §1983, alleging violation of First Amendment rights during demonstration. U.S. District Court for the District of South Carolina awarded plaintiff injunctive relief but denied requests for nominal damages or attorney’s fees. Both parties appealed. U.S. Court of Appeals for the Fourth Circuit affirmed and protester sought writ of certiorari.

- Supreme Court held that protester was “prevailing party” entitled to awards of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act.

- Vacated and remanded.

- A plaintiff “prevails” within meaning of the CRAFAA when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.

- An injunction or declaratory judgment, like a damages award, will usually satisfy test for determining whether a plaintiff is a prevailing party under the CRAFAA.

- 42 U.S.C. §1988.



[<dunn]
 
jamie bails on cersei and Aegon slammed his aunt

GoT
 
Gonna go ahead and ban Faust for making us scroll through that.
 
Faust. Study some real estate law for me
 
Gonna go ahead and ban Faust for making us scroll through that.

Be sure to feed him some red wine before you send him towards the cosmos...
 
This Texas hurricane stuff is insane. Mother nature is a cruel bitch.
 
Y&S, 317-21, 330-338

CHAPTER 5 Incentives to Litigate

A. LITIGATION IN THE UNITED STATES AT THE START OF THE 21st CENTURY

B. REASONS TO LITIGATE: DOLLARS, ORDERS, AND DECLARATIONS

1. Damages

***Troupe v. C & S Wholesale Grocers, Inc., 2009 WL 1938787 (M.D. Ga. 2009) [pg 306]

a. Damage Amounts: Ceilings and Floors

b. Categorizing Damages

2. Specific Relief

***Lucy Webb Hayes Natl. Training School v. Geoghegan, 281 F. Supp. 116 (D.D.C. 1967) [pg 315]

3. Declaratory Relief [pg 317-321]

- Occasionally a party has a problem that neither damages nor specific remedy can solve.

- Party may seek declaration of rights from court without being in position to seek damages or injunction.

- Unlike equitable relief, declaratory relief can be sought even when other remedies are available.

- Federal Declaratory Judgment Act (1911), 28 U.S.C. §2201-2202.

- Procedure governed by F.R.C.P. Rule 57.

- Declaratory judgments are implicit in every damage judgment or injunction; “We give judgment in amount of X because… (implicit declaratory judgment).”

- Declaratory judgments most commonly sought in insurance and patent litigation.

4. Temporary Remedies

a. Preliminary Injunctions and Temporary Restraining Orders: The Basic Problem

City of Los Angeles v. Lyons, 103 S.Ct. 1660 (1983)

Facts: Plaintiff alleges defendants illegally applied chokehold causing injury. Plaintiff brought civil rights action seeking damages, injunctive relief and declaratory relief.

History: On remand after an appeal, the US District Court for the Central District of California granted preliminary injunctive relief, and the Ninth Circuit Court of Appeals affirmed.

Issue: Whether injunctive relief can be granted when irreparable harm to plaintiff might occur in absence of injunction.

Holding: Plaintiff must demonstrate that irreparable injury is likely in absence of injunction; past wrongs do not in themselves amount to that real and immediate threat of injury.

Rule: The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again – a “likelihood of substantial and immediate irreparable injury.”

Reasoning: That plaintiff may have been stopped and illegally choked in the past does nothing to establish a real and immediate threat that he will again be stopped and illegally choked. He would have to allege that he would have another encounter with police and assert that either all police officers always illegally choke or that police have been ordered to do so.

Order: Reversed.

Trump v. Int’l Refugee Assistance Project, 857 F.3d 554 (cert. granted June 26, 2017)

Facts: Plaintiffs brought action for declaratory and injunctive relief against defendants regarding executive order temporarily suspending entry of nationals from six predominantly Muslim nations, and suspending for 120 days the USRAP and decreasing 2017 refugee admissions. US District Court for District of Maryland granted plaintiffs’ motion, defendants appealed.

Holdings:

- Article III standing can be premised on a threatened injury rather than actual injury, as long as the threat of injury is both real and immediate.

- National security may be the most compelling of government interests, but that does not mean it will always tip the balance of equities in favor of the government, when determining whether to issue a preliminary injunction against a government action; a claim of harm to national security must still outweigh the plaintiff’s competing claim of injury.

- Upholding the Constitution undeniably promotes the public interest, as element for determining whether to issue preliminary injunction.


Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273 (7th Cir. 1992)

Facts: Defendant landlord intended to install defendant competitor as anchor tenant, plaintiff tenant sued for breach of contract. US District Court for the Eastern District of Wisconsin granted permanent injunction enforcing exclusivity clause in lease. Defendants appealed.

Holding: When issue is whether to grant permanent injunction, rather than temporary, burden is to show that damages are inadequate, not that denial of injunction will work irreparable harm; “irreparable” in the injunction context means not rectifiable by entry of final judgment, and has nothing to do with whether to grant a permanent injunction, which is the final judgment.

***Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) [pg 322]

b. Provisional Remedies and Due Process [pg 330-338]

- All procedures are subject to examination under the Due Process Clause.

***Fuentes v. Shevin, 407 U.S. 67 (1972) [pg 331] CASE BRIEF

Fuentes v. Shevin, 407 U.S. 67 (1972)

Facts: Appellant Fuentes purchased household goods (oven and stereo) from appellee on installment payment plan. Prior to completion of full payment, a dispute arose over servicing and appellee brought action for repossession of goods. Upon filing complaint, and prior to appellant receipt of summons, appellee obtained writ of replevin. Florida statute allows issuance of writ via ex parte application made with filing of complaint and security bond.

History: Appellant instituted present action in federal district court seeking declaratory and injunctive relief, district court upheld the constitutionality of Florida’s statute.

Issue: Whether statutes violate due process if they authorize replevin without prior notice and opportunity to be heard.

Holding: The prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor.

Rule: Although due process tolerates variances in the form of a hearing “appropriate to the nature of the case”, and “depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any], the court has traditionally held that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect. “That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.”

Reasoning: As a matter of constitutional principle, the statute’s bond requirement is no replacement for the right to a prior hearing. While the existence of bond and liability requirements may be relevant to determining the form of hearing, they aren’t in themselves enough to obviate the due process right to a prior hearing. The “extraordinary situations” unusual circumstances exception doesn’t apply in this case because the statutes serve no governmental or public interest, there is no special need for very prompt action, and they abdicate state control over replevin power to private parties.

Order: District Court judgments vacated and remanded for further proceedings consistent with this court’s opinion.


American Mach. & Metals v. De Bothezat Impeller Co., 166 F.2d 535 (1948)

Facts: P American desires to terminate contract and continue selling products. D has led P to believe D will sue P if P terminates contract and does not cease manufacturing/selling products.

History: P sought declaratory judgment of rights, district court granted D’s motion to dismiss.

Issue: Whether justiciable controversy for declaratory judgment exists when disputed rights are contingent on an irrevocable choice which has yet to be made.

Holding: The Declaratory Judgments Act was designed to obviate just this sort of peril.

Rule: The difference between an abstract question and a “controversy” is one of degree. Where there is an actual controversy over contingent rights, a declaratory judgment may be granted.

Reasoning: Very purpose of declaratory judgment is to prevent accrual of avoidable damages incurred in a dispute over rights which are contingent on an irrevocable choice.

Order: Judgment reversed and cause remanded for trial on the merits.

***North Georgia Finishing Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) [pg 336]

- Prejudgment seizure of a debtor’s property without notice and an opportunity for a hearing is unconstitutional.

- Different kinds of property will not be distinguished in applying the due process clause.

***Connecticut v. Doehr, 501 U.S. 1 (1991) [pg 336]

- Due process challenge to Connecticut statute permitting attachment of real estate to any civil action.

- P filed lien against D property in a battery case unrelated to real estate.

- D continued to live in house throughout attachment.

- Court held that, without either a pre-attachment hearing or a bond, there was too serious a risk of error in depriving D of a significant asset.

***United States v. Good, 510 U.S. 43 (1993) [pg 336]

- 4 years after D pled guilty to drug charges, P filed action seeking forfeiture of D’s home and seized the home pursuant to seizure warrant

- Court held that exigency of a civil forfeiture action – in which property used for unlawful purposes is seized and forfeited to the government – did not justify the seizure of real property without notice.

***Matthews v. Eldridge, 424 U.S. 319 (1976) [pg 336]

- After having social security benefits terminated, P brought action challenging the constitutional validity of administrative procedures established by Secretary of Health, Education and Welfare for assessing whether there exists a continuing disability.

- US District Court for Western District of West Virginia ruled unconstitutional.

- Court of Appeals affirmed.

- US Supreme Court reversed, holding that an evidentiary hearing is not required prior to termination of disability benefits, and that present administrative procedures for such termination fully comport with due process.

- Court set forth 3 factors that normally determine whether individual has received Constitutional due process: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; (3) the Gov’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

- By weighing these concerns, courts can determine whether State has met “fundamental requirement of due process” – “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”

- City of Los Angeles v. David, 538 U.S. 715, 716 (2003)

- Injunctive equivalent of a seizure without a hearing is a temporary restraining order (TRO).

- TROs may be issued with even less process than preliminary injunctions; may be issued ex parte:

- No time to schedule a hearing (bulldozers about to excavate protected area);

- Notice itself might trigger the action to be restrained (battering spouse).



Y&S, 338-66



C. FINANCING LITIGATION

- One of the first things a lawyer wants to know focuses on the remedy sought: what damages are at stake, what injunctive or other relief.

- Litigation as an investment.

1. The “American” and “English” Rules About Attorney’s Fees [340]

- American: each party pays own fees; encourages “law reform” suits and discourages meritorious low- damage suits

- English: loser pays winner’s fees; encourages strong but low-damage cases and discourages high-cost “law reform” suits

2. Insurance, the Contingent Fee, and Alternative Litigation Finance [342]

a. Insurance

b. The Contingent Fee

c. Alternative Litigation Finance

3. Public Subsidies and Professional Charity [353]

4. From Fee Spreading to Fee Shifting [356]

a. The Common Fund

b. By Contract

c. By Common Law

***Chambers v. NASCO, Inc., U.S. 32 (1991) [pg 357]

- Inherent power of the court to control behavior designed to thwart just operation of legal system.

- Court upheld imposition of nearly $1 mil fees on party acting in bad faith.

***Alyeska Pipeline Service v. Wilderness Society, 421 U.S. 240, 257 (1975) [pg 358]

- US Supreme Court refused to create generalized common law doctrine shifting fees in “public interest” cases but said that Congress remained free to do so.

d. By Statute

- 42 U.S.C. §1988(b)

***Evans v. Jeff D., 475 U.S. 717 (1986) [pg 361]

- State’s offer to settle to settle class action on condition of waived attorney’s fees is upheld over contentions from Ps’ counsel that the offer created a conflict of interest.

- “The defendant’s potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits.”

***Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001) [pg 361] CASE BRIEF

Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001)

Facts: P care home ran afoul of state regulation requiring residents to be sufficiently ambulatory to get out of burning buildings. P and other similar W.Va. facilities sued alleging state regulation violated federal housing and disability statutes. Ps sought injunctive and declaratory relief. D agreed to stay enforcement of the cease-and-desist orders pending resolution of case and parties began discovery. W.Va. legislature then enacted two bills eliminating the “self-preservation” requirement, and D moved to dismiss the case as moot.

History: District Court granted D’s motion, Ps requested attorney’s fees as “prevailing party” under the FHAA, 42 U.S.C. §3613(c)(2). District Court denied Ps’ motion and the Court of Appeals affirmed.

Issue: Whether statutory “prevailing party” term includes a party that has failed to secure a judgment on the merits of a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.

Holding: It does not. A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.

Rules: The “catalyst theory” posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. The “American Rule” instructs that attorney’s fees will not be awarded absent “explicit statutory authority.”

Reasoning: The “catalyst theory” does not create a “material alteration of the legal relationship of the parties” because there is no judicially sanctioned change; it is a voluntary change. Legislative history is insufficient to alter the accepted meaning of “prevailing party”. Ps discount the incentive that the “catalyst theory” may have upon a defendant’s decision to voluntarily change conduct which may not even be illegal. Evans v. Jeff D. held that “the defendant’s potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits”, and the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct.

Order: The judgment of the Court of Appeals is affirmed.

***CRST Van Expedited Inc., v. Equal Employment Opportunity Commission (2016) [Supp.]

- EEOC sued employer for hostile work environment sexual harassment against female employees in violation of Title VII. U.S. District Court for Northern District of Iowa dismissed the suit, granting employer’s motions for summary judgment and attorney’s fees as a prevailing party. U.S. Court of Appeals for Eight Circuit remanded, District Court awarded attorney’s fees, EEOC appealed, Court of Appeals reversed and remanded holding that Title VII defendant can be a prevailing party only by obtaining a ruling on the merits and that District Court’s dismissal of claims was not a ruling on the merits. Certiorari granted.

- Supreme Court held that a favorable ruling on the merits is not a necessary predicate to find that a defendant has prevailed under Title VII’s attorney fee provision.

- Vacated and remanded.

***Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013) [Supp.]

- Employee sought relief under Fair Labor Standards Act on behalf of herself and others. U.S. District Court for Eastern District of Pennsylvania dismissed for lack of subject matter jurisdiction after employer extended offer of judgment in full satisfaction of employee’s alleged damages, fees and costs. Employee appealed. U.S. Court of Appeals for Third Circuit reversed and remanded. Certiorari granted.

- Supreme Court held that collective action brought by a single employee on behalf of herself and all similarly situated employees for employer’s alleged violation of the FLSA was no longer justiciable when, as conceded by plaintiff-employee, her individual claim became moot as a result of offer of judgment by employer in amount sufficient to make her whole.

- Rule 68.

- Reversed.

***Marx v. General Revenue Corp., 133 S.Ct. 1166 (2013) [Supp.]

- Customer brought action against debt collector alleging violation of the Fair Debt Collection Practices Act. U.S. District Court for the District of Colorado entered judgment for debt collector and ordered customer to pay debt collector $4,543.03 in costs, and subsequently denied customer’s motion to vacate award of costs. Customer appealed, Court of Appeals for the Tenth Circuit affirmed. Certiorari granted.

- Supreme Court held that the costs provision of the FDCPA is not contrary to federal rule of civil procedure governing award of costs, and thus does not displace a district court’s discretion to award costs to a prevailing party under the rule, and so a district court may award costs to prevailing defendants in FDCPA cases without finding that plaintiff had brought the case in bad faith and for the purpose of harassment.

- Rule 68(d).

- Affirmed.

***Lefemine v. Wideman, 133 S.Ct. 9(2012) [Supp.]

- Abortion protestor, on behalf of himself and organization, sued sheriff and deputies under §1983, alleging violation of First Amendment rights during demonstration. U.S. District Court for the District of South Carolina awarded plaintiff injunctive relief but denied requests for nominal damages or attorney’s fees. Both parties appealed. U.S. Court of Appeals for the Fourth Circuit affirmed and protester sought writ of certiorari.

- Supreme Court held that protester was “prevailing party” entitled to awards of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act.

- Vacated and remanded.

- A plaintiff “prevails” within meaning of the CRAFAA when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.

- An injunction or declaratory judgment, like a damages award, will usually satisfy test for determining whether a plaintiff is a prevailing party under the CRAFAA.

- 42 U.S.C. §1988.



[<dunn]
What school do you go too? What percentage of students that graduate from that law school pass the bar the 1st time or 2nd and 3rd time? Thanks.
 
What school do you go too? What percentage of students that graduate from that law school pass the bar the 1st time or 2nd and 3rd time? Thanks.
University of Liberty City and bout tree fiddy LMFAO!!
 
Can someone delete that Faust wall of text already. Ffs.
 
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