Civ Pro II
Janssen
Spring 2009
I. PLEADINGS & JUDG’TS BASED ON PLEADINGS
A. The Complaint
1. Voluntary Dismissal: [Rule 41(a)]
a) By Plaintiff: Except in class actions, receiverships, and when otherwise limited, Πs may dismiss:
i. Any time before Answer of MSH; and
ii. Upon filing of a stipulation signed by all appearing parties
b) By Court: In all other instances, but only upon such terms as Ct may set
c) Effect:
i. Voluntary Dismissals are without prejudice unless otherwise specified
ii. EXCEPT voluntarily dismissing the same claim twice becomes a dismiss with
prejudice
2. Involuntary Dismissal: [Rule 41(b)]
a) Defendant may move the Ct for a dismissal of Π’s case:
i. For failure to prosecute, or
ii. For failure to comply w/ the Rules or a Ct order
b) Effect: Generally, involuntary dismissals are deemed to be dismissals with prejudice
B. Δ’s Options in Response
1. Failure to Respond: Default & Default Judg’t
a) Entry of a Default: [55(a)]
i. Definition: The clerk’s notation that a party has failed to plead or otherwise defend
ii. Effect: That party is deemed to have admitted all the well-pleaded allegations in the
prior pleading
b) Entry of a Default Judg’t: [55(b)]
i. Definition: Either the clerk or the ct enters a final judg’t against the defaulting party
ii. Effect: The judg’t is enforceable, and entitled to FF&C
iii. [54(c)]: Demand for Judg’t – A default judg’t must not differ in kind from, or
exceed in amount, what is demanded in the pleadings
c) Setting Defaults Aside: [55(c)]
i. Defaults may be set aside for good cause—generally, something more than mere atty neglect/oversight
ii. Default judg’ts may be set aside only for six narrow reasons [See 60(b)]
d) USA Defaults: [55(d)]
i. No default against the USA or fed officers/agencies unless the claimant establishes a right to relief by evid that satisfied the ct
C. Amended Pleadings
1. Basic Principles Under Rule 15(a)
a) Why:
i. You discover you missed something factually or legally
ii. Δ makes a 12(b) moxn, and you’re persuaded
iii. Δ makes a 12(b) moxn, and you’re not persuaded, but the ct is
b) Why do you care:
i. Will help frame the scope of disc’y to come
ii. Will help to set boundaries for the trial
iii. May be used, at trial, as affirmative defense
c) 15(a): Amending Before Trial
i. Without Permission: ONE TIME, if done before being served w/ a responsive pleading (or, if no response is allowed, w/i 20 days after service, if not yet calendared.
ii. With Permission: Otherwise, w/ written consent of the adversary or leave of Court.
iii. Malpractice Danger: NEVER count on an amendment- although often freely granted, it may not be granted in YOUR case.
iv. Responding to Amended Pleadings: Unless the Court orders otherwise, an adversary must plead either within the time left for responding to the original pleading OR within 10 days after service of the amended pleading, whichever time is longer
d) 15(b): Amending During/After Trial
i. Variance: Where the evidence elicited at trial establishes a claim, but one that is different from what was short and plainly stated in the pleadings.
ii. With Consent: Issues NOT raised in the pleadings may still be tried before the jury or Court w/ the express or implied consent of the parties
ú Conforming amendments may be permitted, but even w/o them, trial result is not affected
iii. Without Consent: If objection is made to evidence on the ground that it is not w/I the issues raised by the pleadings, Courts may allow pleadings to be amended freely when it serves the merits presentation AND no prejudice is given.
ú Continuances may be granted for adversary
iv. Applies to BOTH Party’s Pleadings:
ú Plaintiff, and her complaint
ú Defendant, and his answer
e) 15(c): Relation Back
i. When will an amendment “relate back” to the date of the filing of the original pleading?
ú When the law so provides
ú When the new claims are sufficiently like the original claims
ú When the new party knew or should have known that the original pleading was a lawsuit against them
ii. 15(c)(1)(A): As Permitted
ú The law that provides the applicable SOL allows relation-back
iii. 15(c)(1)(B): Similar Claims
ú The new claim or defense arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading.
iv. 15(c)(1)(C): New Parties
ú Permitted if (B) is met AND w/i the SOL period, the new party received notice so as not to be prejudiced AND knew or should have known that, but for the mistaken identity of the original pleading, the lawsuit is against him.
v. Marsh v. Coleman Company
ú Facts:
ú Rule
D. Supplemental Pleadings
1. Rule 15(d)
i. Purpose: To set forth events that have occurred since the original pleadings were filed
ú Note: PRE-filing events are addressed by amendment, not supplement.
ii. When: Upon motion, w/ reasonable notice, and on just terms, Courts may permit supplementation of pleadings setting forth transacting, occurrences, or events that happened after the date of the original pleading.
iii. Limits:
ú Applies even if original pleading is defective
ú Responsive pleading only if ordered by Court
E. Veracity in Pleading: Rule 11 & Other Devices
1. General Principles
§ Good Moral Fiber
o All attorneys admitted to practice in South Carolina must have five witnesses attest to their moral character and general fitness to practice law.
§ Rules of Professional Responsibility
o Duty to avoid frivolous cases, to expedite litigation, to never make knowingly false statements, and to not obstruct access to or alter evidence.
§ 28 USC §1927
o Any attorney…who…multiplies the proceedings in any case unreasonably and vexatiously may be required…to satisfy personally the excess costs and fees incurred because of such conduct
§ Court’s Inherent Power to Sanction
o All courts possess the inherent power, separate and apart from any rule or statute, to police and to punish those who appear before them.
2. Rule 11
a) Imposes an obligation on counsel and client analogous to the railroad crossing sign, STOP, LOOK, and LISTEN. It may be rephrased, Stop, think, investigate and research before filing papers either to initiate the suit or to conduct the litigation
b) 11(a): Signature
i. Every paper must be signed by an attorney of record or by the party personally if unrepresented
1. Unsigned papers shall be stricken, unless promptly corrected
c) 11(b): Representations to Court
i. Not presented for an improper purpose
ii. Claims and defenses warranted by existing law or nonfrivolous argument for new law.
iii. Allegations have or are likely to have evidentiary support.
iv. Denials are warranted by evidence or inference
d) 11(c): Sanctions
i. Against Whom:
1. Attorneys, law firms, or parties who violated their representations to the Court
a. Law firm responsible for violations committed by partners, associates, employees
b. No monetary sanctions against a represented par
31] Depositions
a) Definition: Obtaining a witness’s testimony via a transcribed question and answer session under oath
b) Who: Oral depos may be taken of parties and non-party witnesses(thru subpoena)
c) In Person or Otherwise: By agreement or court order, depos may be conducted by telephone or other electronic means
d) Limits: Unless parties agree or court orders otherwise, depos are limited:
i. Only 10 depos may occur in a case
ii. No depo may last longer than 7 hours
iii. No person may be deposed a 2nd time
iv. No deposition of a person confined in prison
e) Scheduling Procedure: Scheduled by a “Notice of Deposition”
i. Served on all parties
ii. With subpoena (if a non-party witness)
iii. With reasonable advance notice
iv. Stating time and place of the depo
v. Listing any materials to be produced, and
vi. Specifying the method of recording for the testimony (sound, visual, etc.)
f) Procedure for Conducting Depositions:
i. Conducted before a designated officer (Generally a stenographer)
ii. Officer administers the oath to the witnesses
iii. Witnesses are examined and cross-examined, as permitted by Rules of Evidence
g) Objections During Depositions
i. Form: Objections must be stated concisely, in non-argumentative, non-suggestive manner
ii. Preservation: Some objections must be asserted right away or are waived (objections to a confusing or misleading way a question is phrased)
iii. Substantive Objections: Other objections-those going to substance-can be asserted later at trial (competency, relevancy, materiality)
iv. Instructions Not to Answer: An attorney may instruct her client not to answer a question for these reasons:
1. To preserve a privilege
2. To enforce a court-ordered limitation
3. To present a motion to the court
v. Frustrating the Depo: Conduct that impedes, delays, or frustrates the fair examination of a witness can be punished through sanctions-costs and attorney’s fees
h) Motions During Depositions:
i. If a depo is being conducted in bad faith, or just to annoy embarrass, or oppress the witness or a party, the court may:
1. End the deposition
2. Limit the scope and manner of the taking of the depo
i) Completing Depositions:
