Civil Procedure II Outline

*PLEADINGS*
Pleadings either 1) state claims or 2) respond to claims.
Only 7 types of Pleadings: Rule 7
Complaint…Answer…Answer to Counterclaim…Answer to Crossclaim…3rd Party Complaint…Answer to 3rd Party Complaint…Reply to Answer (if court orders one)
 Rule 8 – State Claim
COMPLAINT
·         Rule 8(a): Claim for relief (Complaint) must:
o   Have short, plain statement of ground for court’s jurisdiction
o   Short, plaint statement of claim showing pleader is entitled to relief
o   Demand for relief sought (Court not bound to demand and can award whatever relief is deemed appropriate in light of evidence (54(a).
o   Relief: factual and legal sufficiency
§ Legal: alleged all elements…tested by demurrer or motion to dismiss Rule 12 (b)(6): failure to state a claim upon which relief can be granted.
§ Factual: moving target in area of law – Twombly: detailed facts not required in fed court but must be enough factual matter to nudge claim across line from conceivable to plausible and that discovery will reveal evidence to support claim.
§ South Carolina: is a fact pleading jurisdiction. Higher level of detail needed then in fed. court.
·         Rule 8(d): P can plead alternatively and inconsistently even in same court McCormick
·         Rule 8(e): Courts must construe pleadings liberally so as to do substantial justice
Rule 9: Provides Exceptions to Rule 8 liberal pleading requirements
Specific cases by special rule require more detail required:
Rule 9(a): P only needs to plead her claim and doesn’t need to plead “capacity to sue”.
Rule 9(b): Two instances where more detailed facts are required:
·         Fraud: can’t just allege D committed fraud, must allege with particularity the circumstances constituted fraud
·         Mistake: defamation
·         POLICY: these suits have affects on lives that transcend suit. Court scrutinize these actions b/d of their potentital as tools for harassment…want to discourage frivolous suits so higher pleading threshold.
Rule 9(c): condition precedent: no specifics needed. D can challenge in defense (conditions of mind can be alleged generally
Rule 9(d): official document or Act
Rule 9(e): Judgment
Rule 9(f): Time and Place: not generally required but could open door for SOL if plead
Rule 9(g): Special damages: need to do more if asking for damages beyond the norm
Rule 9(h): Admirality/Maritime: no jury, must expressly state seeking maritime law
 
 
Rule 10 – Formating
Caption…#paragraphs…separate counts…properly allege subject matter jurisdiction…statement of claim for relief (legal/factually sufficient)…demand for judgment…signed in accordance w/ Rule 11.
·         Per Rule 8(e) Dioguardi if close call, not ideal but enough in the ball park – OK; POLICY: pleadings construed to do justice
Rule 11
All pleadings, motions & Papers must be signed by at least one attorney or by party if unrepresented by signing verifying it is :
1. not being presented for any improper use (harass/delay)
2. claims, defenses are warranted by law and are not frivolous
3. facts have evidentiary support or likely will in future
4. denials are warranted by evidence or on believe or lack of information
***If violated court may award Sanctions
SUMMARY:
Rule 8(a) is Master Rule and is modified by:
·         Rule 9 exceptions for fraud, mistake, special damages
·         No enhanced pleading standard for all other claims
·         If not on list NO enhanced pleading standard
Four rules to consider: 8..a..b..c..d…9 Modifies..10form..11duty of truth in pleading
RESPONSIVE PLEADINGS – Two options: File Motion [OR] File Answer
MOTION
NOT a pleadings