Dispute Resolution and Basic Civil Procedure

Conflict Resolution

Adversarial System (Common Law System)

• Adjudicative process
• Law applied by precedent
• Judge serves as referee
  • Applies principles of evidence
• Parties must bring evidence to court
• Alternative Dispute Resolution
  • Arbitration
  • Often by contract
  • Binding on parties
  • Mediation
  • Mandatory in North Carolina Superior Court
  • High rate of success (estimated 90%)
  • Helps to frame the scope of dispute even if no settlement

Adversaries in Environmental Law: Private Party v. Private Party

Landowner v. Landowner

• One private party claims damage from actions of a similar neighbor
• Examples: odor or noise nuisance, water damage
• Landowner v. Industrial Facility
  • One private party claims damage from actions of an industrial facility
  • Common law actions (nuisance, trespass, negligence) and “Citizen Suit” provisions of pollution statutes (e.g. Clean Water Act)

Adversaries in Environmental Law: Private Party v. Government

Private Party v. Government

• Private individual or organization sues government agency

  • To force agency to perform duties required by statute
  • Generally, a refusal of agency to regulate or promulgate a regulation to control pollution
  • Example: Massachusetts v. EPA
  • To stop agency from exceeding their authority under a statute
  • Agency has misinterpreted the law

• Source of right to sue

  • Citizen suit provision of a statute (Clean Air Act, Clean Water Act
  • Suit provision in a procedural statute: Administrative Procedures Act, NEPA, Endangered Species Act, etc.

• Limitation on right to sue:

  • Must meet threshold issues (standing, mootness)
  • Must exhaust administrative remedies with agency before going to court (when process is required by statute or regulation)

• Government v. Private Party

  • Private party has refused to comply with agency enforcement jurisdiction (authority granted by statute)

  • Filed as a criminal case by federal or state prosecutor

  • Example: Rapanos v. U.S.

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Parties to the Judicial Case

Plaintiff (aka Petitioner)

• shorthand π
• Files a complaint, alleges a wrong against specific party, demands relief
• Must prove by a preponderance of the evidence
• Defendant (aka Respondent)
  • Shorthand ∆
  • Alleged to have infringed upon the rights of π
  • files counterclaim if also injured
• Intervenor
  • Has an interest in the property or right at issue in the litigation
  • Bound by outcome of case
• Amicus Curiae (“Friend of the Court”) (plural:  amici curiae)
  • Seeks to influence decision
  • Does not wish to become party bound by outcome
  • Files Amicus Brief in Appellate proceedings only
  • Example: American Farm Bureau, amicus brief in WOTUS cases

Sources of Procedure Rules

Federal Rules of Civil Procedure

• 28 U.S.C.
• Rules of Practice and Procedure for Federal District Court (published by the court)
  • Special rules for Bankruptcy Court according to Federal District
• North Carolina Rules of Civil Procedure
  • N.C.G.S. §1A-1

Initiating the Case

Agency Appeals Process (Administrative court)

• Statutory process for appealing agency action
• Denial of permit or levy of fine
• Civil Trial
  • Completion of proper service on Defendant
  • Distinguish from filing the complaint
• Criminal
  • Grand Jury system (relaxed rules of evidence)

Civil Procedure –Jurisdiction

• Subject matter jurisdiction (often by statute)
  • Court may dismiss case without motion from defendant
• In Personam – jurisdiction over the person
  • Minimum contacts rule
  • Corporate registration requirement (NC Secretary of State)
• In Rem – jurisdiction over property (location of property)
  • Property tax example
• Diversity jurisdiction (Federal Court) (28 U.S.C §1332)
  • ALL civil matters including state law
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    > $75,000 amount in controversy, AND
  • Plaintiff and Defendant are in different states
  • Cannot create Federal jurisdiction by contract
• Amount in controversy
  • State court amounts review ($25,000 limit for NC Superior)

Civil Procedure - Venue

Based on locality of dispute

• “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated” (28 U.S. Code §1391(b)(2))
• Can be based on residency of defendant
  • “any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action” (28 U.S. Code §1391(b)(3))
• “Convenient to parties and witnesses”
• Can be raised pre-trial to change courts (not dismissal of claim)
  • Litigation tactic by Defendant to increase costs to Plaintiff
• Can create venue (and sometimes jurisdiction) by contract (called forum selection)

Before One Can Access Courts, must have an actual ”case” or “controversy”

\n “Cases and Controversies” threshold issues

• Standing
  • Party suing must be injured, must have a real case
  • Case with test for whether standing is me: Lujan v Defenders of Wildlife
• Ripeness
  • Situation has not yet created a legal dispute
  • Related to “exhaustion of administrative remedy”
• Proper Defendant
  • Defendant must be the proper party to be sued
  • Must be right party from whom to hold accountable and recover
• Mootness – no longer a controversy
  • Matter settled prior to trial, a change in the law, a withdrawal of an ordinance, etc.

Civil Procedure - Complaint

\n Name the Proper Defendant with specificity

• Statement of Jurisdiction of Court
  • E.g. defendant residency, occurrence of events
• Statement of Facts (Allegations)
  • Facts must be admitted to or proven over objection
• Statement of Claim for Relief
  • Legal justification for claim
• Demand of claim for relief (remedy)
  • Money damages (general amount “in excess of…”)
  • Equity damages (specific performance)

Civil Procedure - Answer

\n Answer

• Must respond within prescribed time period
  • Risk default judgement
• Must address factual allegations in complaint
  • Admit or deny
  • Clarify or supply alternative facts
• Defenses
  • e.g. “failure to state a claim upon which relief can be granted [Fed. R. Civ. P. 12(b)(6)] (called a “12(b)(6) Motion”)
  • Lack of standing, jurisdiction, ripeness, mootness etc.
• Counterclaims

Civil Procedure - Counterclaims

\n Compulsory:

• Operates to nullify or offset plaintiff’s claim
• Defined as “A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:
  • (a) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
  • (b) does not require adding another party over whom the court cannot acquire jurisdiction.” Fed. R. Civ. P. 13(a)(1)
• Permissive:  “[A]ny claim not compulsory” Fed. R. Civ. P. 13(b)
  • Generally matters unrelated to Plaintiff’s primary claim

Civil Procedure – Cross Claim

\n Plaintiff makes a claim upon multiple defendants on set of facts coming from a common transaction or situation

• Defendant asserts claim against co-defendant
  • “Indemnification” – an obligation of a party to reimburse another party for damages and costs associated with a dispute related to their dealings
  • Normally a matter of contract between parties
• If not part of the same case (same general set of facts), cross-claimant must initiate own action against new defendant (original defendant become plaintiff) \n

Discovery

Gathering information prior to trial, can be very broad

• Interrogatories
• Requests for Admission (”admit or deny”)
• Requests for Production
  • Documents
  • Electronic records
• Depositions
• Objections to various Discovery
  • Must preserve objections to requests (for purpose of hearing and appeal)
  • Example:  attorney-client privilege

Pre-Trial Motions

Motion to Dismiss

• Federal Rule 12(b)(6) “Failure to state a claim upon which relief may be granted”
• Motion for Summary Judgement
  • No facts are at issue
  • Motion for Judgement on the pleadings
  • Legal issue can be decided by Judge (no need for jury to judge the facts)
• Both are immediately appealable when granted

Jury Selection and Fact Finding

Jury Trial (no waiver)

• Voir dire
• Bench Trial
• List of Witnesses
• Rules of evidence
  • Expert testimony (“I am of opinion the X’s chemical discharge killed plaintiff’s bees”)
  • Fact (event) witnesses (“I saw him…)
  • Hearsay (“I heard that he said…) (exceptions)
  • Authentication of item (example:  handwriting)

Trial

Opening Arguments by both Plaintiff and Defendant

• Each side previews its case, summarizes evidence, states why should win

• Plaintiff’s Case

  • Production of evidence
  • Witness Testimony
  • Direct Exam by Plaintiff
  • Cross Exam by Defendant
  • Re-Direct by Plaintiff to Clarify
  • Re-Cross by Defendant

• Defendant usually moves for dismissal or summary judgement

  • If granted, appealable
  • If denied, proceed to defendant’s case

• Defendant’s Case

  • Direct
  • Cross
  • Re-Direct
  • Re-Cross

• Closing Arguments

  \n Each side submits jury instructions

• Debated in Motion Practice outside of ears of jury

• Deliberation

• Verdict

• Motion for Judgement Notwithstanding the Verdict (JNOV)

• Entry of Verdict

  • Begins the clock on time limit for appeal

Post-Trial: Appeal

Trial court record contains facts (the trial record)

• Evidentiary matters were decided by judge at trial
• “Losing” party has right of appeal to appropriate Court
• Limited time to file appeal
  • 30 days for most cases in 4th Circuit

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