Civil Procedure I Outline

IRAC FORMULA- ISSUE, RULE (generic- pick it up and drop it into any facts of the case)(Subrules- are processed rules of law by the courts), APPLICATION (apply to fact pattern, see all sides of the argument ie maybe yes/no- 4 answers total, even if the counterargument is lame include it), CONCLUSION

ISSUE*
RULE**
SUBRULE*** SUBRULE***
APPLICATION**** APPLICATION****

MAYBE YES/MAYBE NO MAYBE YES/MAYBE NO

BECAUSE!!!!
Read ? carefully, Think about the question, THINK IRA, ,try to write “because” in every application sentence and try to also see both sides and include a counter argument to gain max pts.

STAGES OF A LAWSUIT- CIVIL PROCEDURE QUICK REFERENCE OUTLINING FORMAT TO FOLLOW
I. PLEADING:
A. WHAT DOES A COMPLAINT REQUIRE?
1. 3 MAJOR PLEADING SYSTEMS
2. FRCP APPROACH FOR FRCP 8(a) – Claims for Relief
3. FRCP APPROACH Rule 9(b) FRAUD CLAIMS- Ethical Limitations
4. FRCP APPROACH EXCEPTIONS- Rule 11(a-c) Pleading Special Matters
II. ALLOCATING THE ELEMENTS
III. HOW A DEFENDANT MAY RESPOND TO A COMPLAINT
A. 3 RESPONSE CHOICES
1. CHOICE #1- Rule 12(b)(1-7) Pre-Answer Motions
2. CHOICE #2- Rule 8(b), 8(c), 8(d), 10, 11(b)(4), 12 Answers
Including affirmative defenses
3. CHOICE #3 – Rule 55 Default
4. WAIVERS- Rule FRCP 12(g)&(h) Waive Defenses
IV. EXPANDING THE SUIT- JOINDER OF CLAIMS & PARTIES
A. 6 DEVICES-
1. 3 JOINDER OF CLAIMS
2. 3 JOINDER OF PARTIES
V. THE PATH TO TRIAL OR SETTLEMENT
A. DISCOVERY
1. SCOPE OF DISCOVERY REQUIREMENTS
2. UMBRELLA OBJECTIONS TO DISCOVERY/WORK PRODUCT
3. AUTOMATIC DISCOVERY
4. METHODS OF OBTAINING CT RESOLUTION OF DISCOVERY DISPUTES
B. RESOLUTION WITHOUT TRIAL- SUMMARY JUDGMENT
1. ELEMENT #1 NO GENUINE ISSUE OF MATERIAL FACT
2. ELEMENT #2 MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
3. ASSIGNING BURDENS IN SUMMARY JUDGMENT MOTIONS
C. TRIAL- CONTROLLING JURIES
1. Motion for judgment as a matter of law
2. The renewed motion for judgment as a matter of law
3. The new trial motion
VI. SYSTEMATIC ISSUES- SELECTING THE RIGHT COURT
A. PERSONAL JURISDICTION- PJ (Constitution and Statutory Requirements)
1. THE ORIGINS- WHICH INFLUENCE OUR CURRENT LAW
2. THE MODERN CONSTITUTIONAL FORMULATION
3. STATUTORY REQUIREMENTS FOR PJ
B. “NOTICE” REQUIREMENTS (Constitutional and Statutory Requirements)
C. VENUE REQUIREMENTS (Statutory Requirements Only)
D. SUBJECT MATTER JURISDICTION (Constitutional and Statutory Requirements)
1. Federal Question Jurisdiction (Article III & § 1331)
2. Diversity Jurisdiction (Article III & § 1332)
3. Supplemental Jurisdiction (Article III & § 1367)
E. MISCELLANEOUS
1. SIMPLE ERIE
2. Introduction to Claim and Issue Preclusion

STAGES OF A LAWSUIT
I. PLEADING:

A. WHAT DOES A COMPLAINT REQUIRE?

1. 3 MAJOR PLEADING SYSTEMS FOR WHAT A COMPLAINT REQUIRES:

A. Overview:
Gatekeepers, way to control what claims can enter the legal system

B. 3 Systems of Code Pleading-(US state jurisdictions currently use 2 and 3, federal uses 3)

1. COMMON LAW- fixed form, showed formulas, pleaded little about dispute

2. CODE PLEADING- required facts that constituted cause of action among parties- required:
1. Statement of facts (need allegations not proof & need ultimate facts NOT conclusions or law, NOT evidentiary facts);
2. Cause of action (invoke a specific, substantive body of law and plead a particular legal theory- cannot change it at trial); and
3. Demand for relief

3. FRCP PLEADINGS – [FRCP Rule 8]- now must show that pleader
is entitled to relief; requires:
1.) Allegation of jurisdiction sought;
2.) Short and plain statement of claim showing pleader is entitled to relief; AND
3.) Demand for judgment for the relief sought.
*This pleading system quickly eliminates cases that suffer from significant procedural defects, shapes the discovery process that will be the central feature in many cases and occasionally the pleading rule will eliminate a claim entirely(saving substantial private and public dollars)

C. Purpose/Policy-
1. Give notice to D about nature of the claim
2. State the relevant facts
3. Narrow issues to be addressed at the later stages of litigation
4. Serve as a guide for discovery and the trial
5. Expose insubstantial claims
6. Separate disputes over the facts from disputes over law (law settled by judges, facts settled by juries)-common law system but still see remnants today

2. FRCP APPROACH FOR WHAT A COMPLAINT REQUIRES
FRCP 8(a) – CLAIMS FOR RELIEF
A. Overview- Reaction against code pleading, started in 1938, used by all federal courts and some state courts, states that do not use FRCP 8 use code pleadings still- more flexibility in this system

B. Rule 8(a): 3 CONJUNCTIVE requirements:
1.) allegation of jurisdiction sought;
2.) short and plain statement of claim showing pleader is entitled to relief; AND
3.) demand for judgment for the relief sought.

C. More on Rule 8(a)- 3 competing, neither one governs
Interpreting statement of claim “Showing the pleader is entitled to relief”

1. Literal Conley v. Gibson Rule-
a. Language- A ct should not dismiss a complaint for failure to state a claim unless it is clear that the plaintiff can prove “no set of facts in support of his claim which would entitle him to relief.”
b. Summary- complaint is still OK if pleader is able to prove the set of facts at trial/later on that would entitle him to relief
More inclusive- can leave a fact out and complaint is still ok, -Pleader’s interest, underlying policy is only to give notice to D
OR
2. Missing Elements Rule-
a. Language- when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.
b. Summary- if KEY element(s) is missing from complaint, if it would clearly dominate the case, assumes this fact does not exist, complaint is not good.
(Lousy claim, why waste time and money- want efficiency)
More strict, inclusive, underlying policy is to give notice and expose insubstantial claims- D’s interest

3. Twombly Rule-
a. Language- We do not require heightened fact pleading of specifics, bu