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Civil Procedure II
Elon University School of Law
Fink, Eric Mitchell

Civil Procedure II Outline
Professor Eric Fink
Elon University School of Law
Spring 2014
I.                   Pleadings – documents filed in court
a.       Complaint – pleading by the plaintiff
                                                              i.      When this is filed, the case is commenced
                                                            ii.      Rule 8(a) – tells us what must be in the complaint
1.      Statement of SMJ
2.      A short and plain statement of the claim showing pleader is entitled to relief
3.      A demand for relief (tell the judge what you want)
                                                          iii.      More on “short and plain statement of the claim”
1.      Twombly-Iqbal
a.       The court ignores conclusions of law and looks only at alleged facts
                                                                                                                                      i.      Disregard conclusory legal allegations (intentionally, negligently, etc) – just disregard and ignore
                                                                                                                                    ii.      Plaintiff must supply facts to support legal allegations (no different from an exam answer)
b.      Those facts, if taken as true, must support a plausible claim
                                                                                                                                      i.      Assume facts are true
c.       The court uses its experience and common sense to assess plausibility (this is very subjective and likely varies from judge to judge)
                                                                                                                                      i.      After disregarding legal conclusions and taking facts as true, based on inference, is this claim plausible?
2.      It is not enough to state a claim in the sense of a grievance
3.      Plaintiff is entitled to relief only if the substantive law would make defendant liable on the facts alleged in the complaint
a.       Don’t have to exactly say, “I’m suing for breach” but the contents have to line up with some kind of legal claim
4.      A person reading the complaint has to know what you’re alleging
5.      Exam:
a.       You’ll get a complaint. Say, “court will ignore the word negligently.” “They would assume the factual allegations as true.” Then, “would the court infer that plaintiff’s claim is plausible?”
b.      There is not much analysis to do here. All you can really do is give the rule and do what little application there is.
                                                          iv.      Heightened pleadings
1.      Rule 9(b) – if you are alleging fraud, you must do so with particularity
a.       Cannot simply say “Joe defrauded me”
b.      You must say how, where, why, when. Must plead with detail.
c.       Mistake also requires special pleading
b.      Response by Defendant
                                                              i.      Must file some kind of response to a complaint
                                                            ii.      Failing to timely respond = default
1.      Default is not absolute confession but its an admission of all facts alleged in the complaint
2.      Default cannot stand on complaint that fails to state a claim
                                                          iii.      Rule 12(a) – you must respond within 21 days of service of process
1.      Two ways to respond: Can respond by motion OR answer
                                                          iv.      Motion – a request for a court order, these are not pleadings (request that court do something other than rule on the actual case). Motion by way of defense; tells the court, “I’m not liable because…”
1.      12(e) – Motion for more definite statement – very rare
§  Filed if you cannot make sense of the complaint
§  Filed before a responsive pleading; doesnt count for waivable defenses
2.      12(f) – Motion to Strike – any party can move for this
§  Allows you to ask the court to strike out part of the pleading
§  Claims stricken if redundant, immaterial, impertinent
§  Allows you to remove “unnecessary clutter”
3.      12(b) – Motions to Dismiss – can be raised in either a motion or an answer
(1)   for lack of SMJ
(2)   for lack of PJ
(3)   Improper Venue
(4)   Insufficient Process – very rare (there is a problem with the actual document)
(5)   Insufficient Service of Process – documents were not served right
(6)   Failure to State a Claim
(7)   Failure to Join an Indispensible Party – a party under Rule 19
4.      12(g) & 12(h) – strict rules about waiver
a.       Waivable defenses (12(b)(2-5) must be raised in your first response – very testable.. watch out!
                                                                                                                                      i.      Can be motion or answer
                                                                                                                                    ii.      ^Whichever you do first, you must raise any waivable defenses in that response or else you waive the right to do so forever
                                                                                                                                  iii.      Only waived if the defense was available when the defendant makes his first filing (i.e. 12b5 is always available but 12b4 may not be available if complaint is illegible chicken scratch)
                                                                                                                                  iv.      Exception: If timely amended w/o leave (Rule 15(a)), you can add waivable defense and it’s still valid. (Uploading to TWEN)
1.      Argument can be made that the waivable defense relates back and thus the court should accept it as being in the original response
2.      Note: MUST BE W/O LEAVE, otherwise the motion raised in the amended pleading will not work
b.      12(b)(6-7) can be raised at anytime through trial
                                                                                                                                      i.      Do not have to be in your first response
                                                                                                                                    ii.      Cannot raise them on appeal; must be raised sometime on trial
c.       12(b)(1) – sua sponte; SMJ can NEVER be waived
                                                                                                                                      i.      Can be raised at anytime in the case
                                                                                                                                    ii.      Can even be raised for the first time on appeal
5.      Rule 12(b)(6): Failure to state a claim upon which relief can be granted
a.       Run through Twombly-Iqbal
                                                                                                                                      i.      Complaint must be “well-pleaded”
1.      Allegation must be more than a mere conclusory statement
a.       Court is to ignore conclusory legal statements
2.      Plaintiff must supply facts to support legal allegations
                                                                                                                                    ii.      Assume truth of well-pleaded factual allegations and inferences supported by facts
                                                                                                                                  iii.      Determine whether the facts as pleaded state a plausible claim
                                                                                                                                  iv.      Exception: Little green men
1.      “Allegations that are sufficiently fantastic to defy reality as we know it”
6.      HYPO: π sues and ∆ moves to dismiss using 12(b)(5), the court denies the motion saying service was OK. Then ∆ files her answer and in the answer she wants to assert 12(b)(2). Can she claim lack of PJ???
a.       She cannot assert this defense because she had to raise 12(b)(2) in her first response, and since she failed to do so, she waived it!
7.      If pre-answer motion is denied, defendant has 14 days to file his answer (12a(4)a)
                                                            v.      Answer (this is a pleading that responds to the complaint)
1.      Two things that MUST be in the answer
a.       Must respond to the complaint. Respond to all allegations (bullet by bullet) Three choices:
                                                                                                                                      i.      Admit
                                                                                                                                    ii.      Deny – general denials are not

d on the merits and not procedural technicalities
4.      Factors considered by courts in determining whether “justice so requires”
a.       The reason for the amendment
                                                                                                                                      i.      New facts/legal theories
                                                                                                                                    ii.      Bad faith will kill it every time
b.      The amending party’s diligence
                                                                                                                                      i.      Why is there new info?
                                                                                                                                    ii.      Should the amending party have known about this?
c.       Any prejudice that the amendment may cause to the opposing party
                                                                                                                                      i.      Merit prejudice = does the amendment prejudice the opposition’s merits? This is not undue.
                                                                                                                                    ii.      Preparation prejudice = undue prejudice
1.      Prejudice flowing from the lateness of the amendment
d.      Whether the amendment would be futile as a matter of law
                                                                                                                                      i.      Futile = incapable of producing a useful result
                                                                                                                                    ii.      Analyzed as if the amendment were before the court on a motion to dismiss [Rule 12(b)(6)]                                                                                                                                   iii.      If the amendment wouldn’t survive a 12(b)6, then its futile
                                                                                                                                  iv.      But, if the defendant filed a 12(b)6 that could succeed, you can file to cure w/in 21 days to cure w/o leave
                                                                                                                                    v.      If 12(b)6 has been granted, you can file w/in 21 after motion to amend your claim to survive
e.       The amending party’s prior amendments
5.      At least early in the litigation, there is a presumption in favor of allowing amendments, unless the opposing party provides a substantial reason for denying them
a.       The further along the litigation, the more likely the court will deny
6.      Beeck v. Aquaslide
a.       Plaintiff injured on A’s waterslide. A responded admitting it was theirs after insurance adjusters confirmed it was. 6 months after SOL ran A’s president checked out the slide himself and realized it wasn’t theirs. Court granted leave to amend.
7.      Rule Statement: In all cases other than when a plaintiff can amend w/o leave, the amending party must file a motion for leave to amend accompanied by the proposed amendment. Leave is in the court’s discretion, which turns on the amending party’s reason for amendment, its diligence, the number of prior amendments by the same party, “preparation prejudice” to the opposing party, and futility of the amendment. Preparation prejudice is the key factor, however, and the Rule instructs that courts “should freely give leave when justice so requires.”