Civil Procedure II Outline

Professor Davidson_Civil Procedure II_Spring 2009
 
I.      28 U.S.C. § 2072 Rules Enabling Act: (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in [federal courts] (b) Such rules shall not abridge, enlarge or modify any substantive right.
A.    Enacted in 1934 to give the SC the authority to create the FRCP.
B.    Court set up the Civil Rules Advisory Committee, which drafted the rules & presented them to the Federal Judiciary Committee & the SC, then to Congress (which didn’t strike them, so they were presumed to have approval)
C.    Article III § 2gives Congress the power to create lower federal courts; Necessary & Proper Clause gives Congress the power to provide rules of procedure for the operation of these courts.
 
III – PLEADING AND MOTIONS
 
7 – PLEADINGS ALLOWED
 
Federal Pleading Generally –
·         FRCP 7(a): Pleadings = complaint → answer → reply to a counter-claim → answer to a cross-claim → third-party complaint → third-party answer. 
·         3 Types of Pleadings:
o    Complaint – π’s initial pleading
o    Answer – Δ’s response to the complaint
o    Reply – “answer to an answer” and is allowable: (1) If the answer contains a counterclaim (in which case a reply is required); and (2) at P’s option, if P obtains a court order allowing reply
I.      Reply = π’s answer to Δ’s counter-claim.
A.    FRCP 7only makes replies mandatory for counter-claims (replying to an affirmative defense is optional – if you don’t reply, it’s treated as a denial), but states may do differently.
B.    If π doesn’t make a reply, FRCP 8(d) says the allegations in counterclaim are deemed admitted.
C.    Where a reply contains a new cause of action against the Δ, this is usually construed as request to amend the complaint.
 
 
8 – GENERAL RULES OF PLEADING
 
A: Common-Law Pleading
I.      Historically, CL pleadings were oral & the goal was to reduce the case to a single issue
II.     Process:
A.    Π commenced suit by filing a declaration – stating why π relief from Δ.
1.     Modern = 8(a)(2) Complaint
B.    Δ then had to respond via one of the following options (each mutually exclusive):
1.     Demurrer – challenge to the legal sufficiency of the complaint (“yes, what you say may be true, but it is not legally sufficient to support a recovery” – “so what?”), a.k.a. “wagering your law” b/c if you chose to demur & lost, you couldn’t later enter a plea to contest the facts.
i.      Modern = 12(b)(6) Motion to Dismiss for Failure to State a Claim
2.     Dilatory Plea – did not challenge on the merits, but on grounds that court did not have power to bring parties before it
i.      12(b)(1-5) & (7) – Motions to Dismiss for (1) Lack of S-M Jdx, (2) Lack of Personal Jdx, (3) Improper Venue, (4) NSF Process, (5) NSF Service of Process, (7) Failure to Join a Party under FRCP 19
3.     Peremptory Plea – challenge on the merits (a.k.a. “pleas in bar”)
i.      Traverse – contests factual assertions made in π’s allegations – what you say is “not so”
a.     Modern = 8(b) Answer Admitting or Denying the Allegations
ii.     Confession and Avoidance – “yes, what you say is true, but because of X, I am not liable” – “Yes, but…” defense
a.     Modern = 8(c) Affirmative Defenses (ex: statute of limitations, res judicata, contributory negligence, estoppel, etc.)
III.    Main difference b/w Historical & Modern pleading is that at CL you were only allowed to state one of these, but today you can make as many responses as you want.
·         FRCP 8(a): A pleading (whether original-, counter-, cross-, or third-party claim) shall contain:
I.      FRCP 8(a)(1): a short & plain statement of the grounds on which jdx depends
II.     FRCP 8(a)(2): a short & plain statement of the claim showing pleader is entitled to relief
A.    Purpose = to give Δ notice of the claim against him (what he’s being sued for).
B.    Standard: if we assume what the π says is true, has he presented a claim the law will recognize?
1.     Old rule required a statement in general terms – use of legal conclusions was not allowed.
i.      Gillispie v. Goodyear Service Stores(p.511) – π’s statement of what happened to her does give notice, but uses legal terms like “trespass” and “assault” to tell what happened, rather than just facts. By using these words you assume your claims are viable w/o showing why. It short-circuits the court’s ability to determine if the facts NSF.
2.     Modern rule = may or may not contain details or legal theories – just enough to give notice.
i.      Pleading is not the best place to require lots of detail – sorted out more effectively later
ii.     Π may not know everything yet – we want to give them an opportunity for discovery.
iii.    Dioguardi v. Durning (p.515) – Δ alleges he was the high bidder for cases of tonic that were given to someone else. Complaint written in broken English. Δ files a 12(b)(6) motion for failure to state a claim. Court held π doesn’t have to state a legal theory – it is sufficient to give enough info to allow Δ to frame his answer & begin discovery.
 
3.     Just listing the “ingredients” is not enough – describe the event that gives rise to the claim
4.     Example (see Form 9):
i.      “Δ negligently caused π’s injuries on July 4, 2000 at Dreamworld Amusement Park” → NSF b/c Δ has no notice of what they did that might have given rise to the suit.
ii.     “Δ negligently operated a roller coaster ride on which π was a passenger on July 4, 2000, at Dreamworld Amusement Park. As a result of his negligence, π suffered a broken arm, incurred medical expenses, & was prevented from transacting business, resulting in damages of $80,000.” Sufficient. Gives Δ fair notice of occurrence for which relief is sought. Don’t have to say what the negligence was, just what happened & relief sought.
III.    FRCP 8(a)(3): Pleading must also contain an ad damnumclause stating what relief you want.
A.    Purpose = to give notice of the amount demanded
B.    Relief in the alternative or of different types can be demanded under 8(e)(2), but there can only be one recovery
C.    FRCP 54(c): In a contested case, the ad damnum clause is not a ceiling. Court is allowed to render a verdict based on proof at trial.
1.     If jury award > ad damnum, it can be amended post-trial to correspond with the verdict, as long as Δ was not prejudiced & induced not to litigate as hard b/c they thought the verdict would be small ($100K to $150K doesn’t matter, $100K to $10 would Bail v. Cunningham).
2.     Default judgments are limited to the amount requested in the ad damnum clause.
D.    Some states (GA) don’t allow π to name a figure in medmal cases to prevent jury prejudice
IV.   FRCP 8(e)(2): You can make 2+ statements of a claim or defense alternatively. When one would be sufficient if independent, the NSF of alternatives doesn’t matter. You may state as many separate claims or defenses as you have regardless of consistency & grounds, as long as they’re in good faith.
A.    Form 10 → shows how you might plead alternatives
B.    FRCP 10(b): “as far as practicable,” each claim should be set forth in a separate count. If this is violated, Δ can move to compel separate statements, to strike, or for a preliminary injunction
C.    You can state both alternative claims (also under 8(a)) & alternative claims of relief
V.    The action is commenced when the complaint is filed with the court (FRCP 3)
 
Burden of Pleading:
I.      Π has burden of pleading all elements of the prima facie case. 
A.    “Legal commands take the form of conditional imperatives” → a legal rule can be seen as making a statement that “if the π proves X, Y, & Z, she is entitled to relief.”
B.    First, ask yourself what the π needs to demonstrated in order to prevail – what are the minimum elements X, Y, & Z of π’s cause of action (the π’s prima facie case)?
C.    Generally the burden of pleading X, Y, & Z is on the person who has the burden of proving them. Omission of one not necessarily fatal – it can be inferred (as they were in Garcia).
II.     Δ establishes a defense
A.    “if π can show X, Y, & Z, she can prevail unless Δ shows A & B”
III.    To counter the defense, π will have a 2nd burden of production to avoid Δ’s defense. 
A.    Normally follows the answer
B.    Sometimes asserted in pleading – if complaint on its face looks l