American civil procedure has a number of features that are discontinuous with the
procedures followed in civil law countries and even in other common law countries. The
Minister of Justice of your home country (or the country where you practice) has asked you to
write a memorandum evaluating those aspects of American civil procedure which may serve as
models for improving your country’s current practice. He is also very interested in those aspects
of American procedure which should be avoided as destructive and likely to make things worse.
Write a memorandum offering your opinions to the Minister and the reasons for your
opinions. You should address only a small number of the aspects of American civil litigation
practices. Your reasons are more important than your opinions. Despite the Minister’s request,
you may focus only on positive or only on negative aspects of American procedure (if you think
there is nothing to avoid or nothing to emulate). There is no need to do both.
in your answer to this question, tell me what the legal issue or issues
presented by each subsection is/are, even if you are not sure how to resolve the issue(s).
(Number your answers to the subdivisions.) If you would need more information to resolve
the issue, tell me what more you would need to know.
Peter Johnson is an African-American who served ten years in an Illinois State prison for
murder. Two years ago he was freed and his conviction vacated (voided) after it was discovered
that DNA evidence showed that he could not have been the killer and showed that another
person, committed the killing. In his trial, Johnson testified that his confession, which was
admitted against him, was the result of torture inflicted by a Chicago police detective, George
In 2018, Johnson filed a civil rights action against George Bidge, the Police
Commissioner, the lead prosecutor in the case, and the Mayor of the City of Chicago. He cited a
federal statute, 42 United States Code Section 1983, which provides for an action for money
damages for a violation of federally guaranteed rights done under “color of state law.” The
rights may be based on a federal constitutional provision or a federal statute. Officials of local
government, such as the city, act “under color of state law” because their ultimate authority
comes from the state of which they are units. Johnson claims that his rights under the Fourth
Amendment to the U.S. Constitution, which prohibits unreasonable “searches and seizures,” was
violated by Bidge’s physical abuse. He alleges that the prosecutor deprived him of due process
of law, guaranteed by the Fourteenth Amendment as interpreted by the Supreme Court, by
withholding D.N.A. evidence in the prosecutor’s possession at the time of his trial and which
was responsive to a defense discovery request.
1. In his original criminal case, after losing at trial, John appealed his case ultimately to
the Illinois Supreme Court. The Illinois Supreme court affirmed his conviction.
Johnson filed a petition for certiorari to the Supreme Court of the United States,
claiming that his conviction was the result of Bidge’s violation of his Fourth
Amendment rights. Does the United States Supreme Court have jurisdiction over his
appeal from the highest state court? Why or why not?
2. Respondeat superior does not apply in Section 1983 actions against superior officers.
The plaintiff must allege and prove that the lower officer’s (Bidge’s) actions were
ordered by the superior officers or were part of an official or unofficial policy
approved by the superior officer. The Complaint’s allegation against the
Commissioner reads, “At all times relevant hereto, the Commissioner and the Mayor
knew of and unofficially approved of a policy of abusive interrogation techniques.”
No specific facts showing his knowledge or the existence of a “policy” were pled.
The Commissioner and the Mayor move to dismiss the complaint him for failing to
state a cause of action against him under Rule 8 of the Federal Rules of Civil
procedure. What is the likely ruling and why?
3. Assume that the trial judge denies the motion to dismiss the claim against the
Commissioner and the Mayor. The Commissioner’s lawyer wants to file an
immediate “interlocutory” appeal of the denial. Will the appellate court accept
jurisdiction? Why or why not?
4. Bidge files a motion for joinder of parities under Rule 14, alleging that the detective
who assaulted Johnson was not himself, but rather another detective named Frank
Williams. Bidge moves that Williams be joined as a party defendant. John opposes
the motion. What is the likely ruling and why?
5. Bidge files a Counterclaim against Johnson, alleging that, without provocation,
Johnson punched him in the face while being questioned. The counterclaim is a state
law tort action. Johnson moves to dismiss the Counterclaim alleging (1) improper
joinder of issues and (2) lack of jurisdiction over the state law claim. What is the
likely result and why?
6. The Mayor moves for a Preliminary Injunction, alleging that adverse publicity may
prevent his receiving a fair trial, and asking the Court to issue a preliminary
injunction ordering Johnson not to speak to the press. The trial court issues the
injunction. Johnson files an interlocutory appeal asking for review of the injunction.
The Mayor moves to dismiss the interlocutory appeal for lack of appellate
jurisdiction, arguing that there is no final order. What is the likely result and why?
7. After the civil rights action was filed, the Mayor gave a press conference in which he
praises the Commissioner and the Police Department and tells the press, “It is a
terrible shame the way violent criminals like Peter Johnson tell awful lies about fine
officers like George Bidge, just to make some money.” Johnson seeks to amend his
complaint to include an additional state law claim for defamation against the Mayor,
and against the local newspaper, alleging his statements criticizing Johnson were false
and injured his reputation. The Mayor moves to deny joinder of the additional claim,
claiming (1) improper joinder and (2) lack of federal jurisdiction. What is the likely
result and why? The newspaper moves to dismiss the claim against it alleging
improper joinder of parties. What is the likely result and why?
8. The prosecutor moves to dismiss alleging that he has absolute immunity from liability
for any action taken in the course of his duties. Such an absolute immunity does in
fact exist, but the trial court denies his motion to dismiss. He seeks to file an
immediate interlocutory appeal of the denial. What is the likely result and why?
9. After discovery, the Mayor moves for summary judgment. He supports his motion
with an affidavit in which he claims that he has had no knowledge of any police
policy of abusing suspects and would have ended it if he had such knowledge. He
also attaches sections of Johnson’s deposition in which Johnson admitted that he had
no personal or perceptual knowledge of the Mayor’s knowledge. No other material is
included in the motion. Will Johnson be required to offer admissible evidence
showing that the Mayor had knowledge of the “policy” in order to defeat summary
judgment. Why or why not?
10. Assume that John responds to the Mayor’s motion for summary judgment with his
own affidavit. In his affidavit, he repeats his deposition testimony that he has no
personal knowledge of the Mayor’s knowledge, but alleges that “everyone in the city
knows that the Mayor is a very hands-on administrator and that nothing happens in
the police department without his knowledge.” He also includes a portion of the
deposition of the former Commissioner in which he testified that the Mayor “received
frequent briefings of the details of all the practices of the department and often
pressured me to increase the clearance rate on murders, that is, the rate at which
suspects are convicted. I never told him about any practice of abusing suspects
because there was no such practice. Bidge was a rogue cop.” Should summary
judgment be granted? Why or why not?
11. Assume that summary judgment is denied for the claim against the Mayor. Will the
Mayor be entitled to an interlocutory appeal of the denial? Why or why not?
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