Penn State Dickinson School of Law
Civil Procedure
Professor Laurel Terry
Fall 2010
Civil Procedure Outline – Fall 2010
Overview of Outline
I Pleading
A. What Does A Complaint Require
B. 3 Ways Defendant May Respond To Complaint
C. Joinder – Expanding the Suit
II The Path to Trial or Settlement
A. Discovery
B. Summary Judgment – Resolution Without Trial
C. Trial
III Selecting the Right Court
A. Personal Jurisdiction
B. Notice
C. Venue
D. Subject Matter Jurisdiction
I Pleading
A. What Does A Complaint Require
B. 3 Ways Defendant May Respond To Complaint
C. Joinder – Expanding the Suit
Issue: What Does a Complaint Require?
I. FRCP Rule 8(a) – Claims for Relief
a. Overview – Used by all federal courts and some state courts for what a complaint requires. Exceptions include rule 9(b)Fraud and rule 11(a-c)Ethical Limitations to pleading
b. Rule 8(a) – 3 conjunctive elements
i. Allegation of jurisdiction sought;
ii. Short and plain statement of claim showing the pleader is entitled to relief; AND
iii. Demand for judgment for the relief sought
c. 3 Competing Interpretations of Rule8(a)(2) – What a complaint requires
i. Literal Conley v. Gibson RuleßEasiest Requirements
1. A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove “no set of facts in support of his claim which would entitle him to relief”
2. Application – Complain is OK if the pleader would be able to prove the set of facts at trial/later on in the suit (can leave a fact out and complaint is still good)
3. Policy – 2 Advantages – (1)easier system access (2)does not punish the client for bad lawyering 1 Disadvantage – (1) Frivolous claims are easier to get in to court
ii. Missing Elements RuleßEasiest to apply
1. When a complaint is missing a key element which would clearly dominate the case, we assume the fact/element does not exist and complaint is no good
2. Application – Look at elements of claim (ex. Battery), if the element of intent is missing from complaint, we assume it does not exist and complaint if no good
3. Policy – Advantages – (1) Ensures that valid claims get in Disadvantages (1)Makes it harder for complaint to get in (2)If you do not know a key fact you cannot get in (3)Can penalize client if lawyer did not use precise language
iii. Twombly/Iqbal RuleßMost Confusing/Ambiguous Rule – Toughest Requirements
1. The claim must contain enough facts which move the claim from conceivable to plausible on its face. The facts of the complaint must show something more than mere possibility and thus raise the complaint
2. Application – The claim cannot merely contain random facts and conclusions, it must be plausible on its face ßMost Important Language
3. Policy – Advantage – (1)Valid claims are getting in Disadvantages – (1)Hardest to get in to court under (2)Very ambiguous language (3)Can penalize client if lawyer did not use precise language
II. FRCP Rule 9(b) – Fraud Claims (Exception to 8a)
a. Overview – outlines the heightened requirements for pleading fraud
b. Rule 9(b) – 2 Elements
i. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake
ii. Malice, intent, knowledge and other conditions of mind of a person may be alleged generally
c. Interpretation of “Particularity” requirement:
i. Meaning – Requires that the “time, place, and nature of the alleged misrepresentations” be disclosed to the party accused of fraud”
ii. Purpose – to afford a litigant accused of fraud fair notice of the claim and the factual ground upon which it is based
iii. Application – state:
1. What D actually said/did that was fraudulent
2. Who said these things
3. Where the statements were made
4. Why the statements are fraudulent
5. When the statements were made
III. FRCP Rule 11(a-c) – Ethical Constraints on Rule 8(a)
a. Overview – Rule 11 is an exception to rule 8(a). It places outlines ethical limitations and conduct rules for pleading as well as establishes standards for investigations and sanctions. Essentially it prevents a party from alleging anything they want in hope that facts or evidence will later become available
b. Rule 11 – Disfavored Claims
i. 11(a) – Claim has to be signed, need to incl
i. If D prevails on the pre-answer motion an answer may never be necessary (this can be a strong tactical advantage since an answer requires the defendant to admit possibly damaging allegations in the complain or undertake substantial factual investigation)
ii. It can also afford more time to the defendant to figure out what they want to do
1. You have 14 days from the day the motion is either denied or postponed to serve your answer to the plaintiff – 12(a)(4)
iii. Remember that the plaintiff gets one chance to amend the complaint by Rule 11(c)(1)(a) – court may (likely does) grant more than one amendment because they do not want a possibly valid claim to be dismissed on technicalities (Fed. Judge From Class)
b. Rule 12(b)(6) “so what motion” ßMost commonly used (Called Demurrer in code pleading)
i. Motion to dismiss for failure to state a claim for which relief can be granted
ii. Essentially says that even if everything you say in your complaint is true, you have no valid claim.
iii. The plaintiff always has at least one opportunity to amend their complaint to state a valid claim before the court would actually dismiss the case (some circuits state that the plaintiff has an absolute right to amend under Rule 15(a))
iv. Application: Apply 12(b)(6) based on all 3 interpretations of Rule 8(a) “What a complaint requires”. We win under Conley, Missing Elements, and Twombly/Iqbal
c. Other Rule 12(b) pre-answer motions are described in full detail in FRCP book
d. 12(c) – This motion relies on the idea that the court thinks the law in a particular case is clear and that further development of the facts would not assist in deciding the case
