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Civil Procedure I
Rutgers University, Newark School of Law
Gonzalez, Carlos

CIVIL PROCEDURE
I.                     PLEADINGS- Purpose: 1) give notice, 2) limit and define scope of suit, 3) eliminate frivolous cases, 4) Guide discovery, 5) record of disposition or judgment.
3 TYPES: 1) Writ, 2) Code, 3) FRCP
1.       WRIT- Common law pleading granted relief only in accordance w/ recognized forms of action of substantive law (trespass, case, etc.). P only recover under the substantive theory of law represented by that form.
2.       CODE (Fact Pleading)- Statement of ultimate facts showing right to remedy. RULE: Complaint must contain plain and concise statement of material and ultimate facts constituting cause of action, not merely conclusions. (Gillespie v. Goodyear)
“Ultimate facts”- facts describe in detail circumstances entitle P to remedy (plead elements of COA). Failure to allege ultimate facts constituting every essential element of COA subject to demurrer or motion to dismiss.
“Demurrer”- (CODE) device says opposing party’s pleadings are insufficient and demurring party not need to answer.
“3 Strike Rule”- P has 3 chances to amend when D demures before dismissed w/ prejudice. Rationale: ct wants case decided on merits not procedures.
Policy as to being specific: 1) direct allegation harder to deny, 2) less chance of frivolous claims.
3.       FRCP (Notice Pleading)- Further liberalized pleadings. Short and plain statement of nature of claim to put D on notice of claim. FRCP 8(a)(2). Low burden to file notice pleading. Discovery and pre-trial devices used for full development of facts.
Narrowed Notice pleading- Still must show pleader entitled to relief and need factual assertions that support each claim (ultimate facts). Rationale- Heavy costs in litigation disfavor launching parties into pre-trial discovery if no reasonable prospect that P can make out COA. P can’t be on “fishing expedition.
STRATEGY: In complaints be broad as possible to hide strategy while also avoiding demurrer.

P’S COMPLAINT
4 parts of complaint: 1) subject matter jurisdiction, 2) allegations/ ultimate facts, 3) prayer for relief, 4) signature/ verification of atty. (infra)
3 TYPES OF ALLEGATIONS-
1) Direct- asserting specific facts;
2) On “information and belief”-In Code, if lacks personal knowledge (ie using heresay), in FRCP P should have personal knowledge. If P has personal knowledge or constructive knowledge, this pleading is improper. Allegations made only “after reasonable inquiry and w/ belief pleading likely to have evidentiary support “(Rule 11);
3) Alternative & inconsistent allegations (Rule 8(e)(2))- permissible bc it settles and does justice in 1 action and increases chance of accurate results. More efficient to bring all parties and have broad discovery. Also, since trial is fact-determining event, illogical to require P to choose w/c set of facts is true beforehand when diff possibilities exist. Permissible as long as P does not have or should have knowledge of true facts. McCormick v. Kopman- decedent drunk driver. P must choose 1 theory after jury verdict and prior to judgment bc cant have 2 remedies for same injury.

VERIFICATION- 11(b): P lawyer must sign pleading certifying to best of his knowledge all true after reasonable inquiry. Affirmative duty to conduct adequate prefiling investigation. STANDARD is reasonableness under circumstances. Good faith effort insufficient. Discourages frivolous lawsuits when rep at stake.

SANCTION- Rule 11(c): (1) motion by D or (2) judge’s discretion & ask violating atty to “show cause”. Court has latitude in picking sanction ($ or no $). 11(c)(2). Limited to DETERENCE of such conduct. Usually paid to ct; not a fee-shifting device to pay fees or other legal costs of opponent. But, will direct payment to moving party if warranted for deterrence (ie fees incurred as direct result of violation). CONDUCT BRINGS SANCTIONS 11(c)- anything under 11(b): delay, harrass opponent, claims not warranted by law, no eivdentiary support, denials of fact not warranted. Person who multiplies proceedings unreasonably and vexastiously (delay tactics or excessive litigation activity). Must be willful bad faith by offending person. Zuk v. Eastern PA.
“Safe Harbor”- violating party has 21 days from time of service to rescind offending filing before sanction filed w/ court.
D’S RESPONSE
D 3 OPTION: 1) Pre-Answer Motions, 2) Answer, 3) Failure to Answer
1.       PRE-ANSWER- CHALLENGES TO LEGAL SUFFICIENCY OF P’S CLAIM
Ø       MOTION TO DISMISS R. 12(b)- (1) lack of SMJ (2) lack of PJ; (3) improper venue (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join party whose joinder is required.

TIMING: Must be filed before filing answer. D files pre-answer motion w/in 20 days after service of complaint.
If ct DENIES- D has 10 days from notice of denial to file answer. (But may appeal denial after final judgment.)
If GRANTS- court has discretion to let P amend.
R.12(h)(1), WAIVED if not made in motion or answer: lack of personal jurisdiction, improper venue, insufficiency of process (not putting party on notice at all), insufficiency of service (defect in methodology). If make motion on 1, need to motion on others or waived!
R. 12(h)(2), NOT WAIVED until final judgment entered: failure to state a claim, failure to join indispensible party, failure to state legal defense to a claim.
R. 12(h)(3), RAISED AT ANYTIME: lack of subject matter jurisdiction power over issue).

12(b)(6) Test for SUFFICIENCY OF COMPLAINT, assuming all allegations true and held most favorable to P:
1.       Need sufficient facts to outline essential elements of P’s cause of action.
2.       Liberal standard- complaint should be dismissed if P cannot prove facts supporting claim for relief.
3.       Heightened specificity- Claims based on FRAUD, MISTAKE, DRASTIC REMEDIES must be plead w/ “particularity”. R.9(b). Rationale- protects D’s against unfounded claims that damage their reputations. Ross v. A.H. Robins (securities fraud); Cash v. Weiner (higher specificity where special damages- heightened concern for due process arises by reason of drastic nature of remedies sought.) Exception for fraud extended to analagous areas involving statutory causes of action (ie RICO). Trend toward heightened particularity increased due to rising costs of litigation and huge caseload in fed docket. TENSION btw 8(a) & 9(b).
Pros: 1) buys D time; 2) Narrows scope if complaint; 3) Lets D see strength of P’s argument, but subject to Rule 11 sanctions as well!
Cons: 1) Expensive; 2) Potential remedy may only be amendment (P can amend 2); 3) give P time to correct potential problems 4) High reversal rate.

When bring 12b6 motion? 1) Even if all facts true, no cognizable basis for recovery; 2) If D has defense (ie SOL).
OTHER R. 12 MOTIONS (to challenge sufficiency of pleadings)
Ø       MOTION FOR JUDGMENT ON THE PLEADINGS R/ 12(c)- after the pleadings but before trial (if outside material used- treated like R. 56 SJ).
Ø       MOTION FOR MORE DEFINITE STATEMENT R. 12(e)- when complaint

alcuable amt, ct enters)). D not entitled to appear in proceeding. Can’t get DJ against minor or military.
Ø       SETTING ASIDE Default- motion can be made anytime before judgment entered. If already entered, anytime w/in 1 year after judgment entered. Grounds to set aside judgment: (1) D’s culpable conduct (must be worse than mere negligence, willful- Shepard Claims) or had valid excuse for default (excusable neglect, fraud, inadvertence), (2) D has meritorious defense (defense based on evidence relating to substance of legal claim, rather than technicalities), (3) P not be prejudiced. 
Ø       DEFAULT ON PURPOSE IF: claim worth less than filing answer, good way to lock in judgment, judge may be less generous than jury, P can’t recover more than they plead, D is indigent, risk public exposure, D is guilty and have no defense.

1.       REAL PARTY IN INTEREST- only those who are RPI may prosecute a civil action.
Ø       REQUIREMENTS- person bringing suit (1) must use own name as P (exception- if P shows compelling need for anonymity to protect agaisnt serious harm by exposure- highly personal and sensitive areas like birth control, welfare, homos- SMU Assoc) and (2) must have legal right to enforce claim.
Ø       POLICY- (1) allow D to present defenses against RPI; (2) protect D against subsequent action by party actually entitled to relief; (3) ensure judgment has res judicata effect.
Ø       “CAPACITY”- legal competence to sue or be sued (minor or metally retarded lacks capacity). Parties who can sue as representatives even though no beneficial interest in claim: exectutor, administrator, guardian, trustee of estate, party to K made for benefit of another, pvt claimant suing in name of gov is allowed by statute. Partnerships- in fed cts, can sue as an entity if litigation involves fed question. In diversity, determined by state law. 
Ø       “SUBROGATION”- substitution of a person in place of another w/ substituted person succeeding to rights of the other. (ie. Insurance co’s- insurer’s payment to the insured for a harm inflicted by 3rd party subrogates insurer to insured’s rights against 3rd party. If insurer pays all insured’s losses, insured no longer has pecuniary interest & insurer is RPI to recover. But if only “partial subrogation”- both RPI)

2.       JOINDER OF CLAIMS & REMEDIES- P may bring as many claims as P has against opposing party. R. 18. Parties already joined can bring claims even if not related. (R. 42 seperates claims out for separate trials.)

3.       JOINDER OF PARTIES
A.       PERMISSIVE- any parties may join as D’s/ P’s if asserting right to relief (1) arising out of same transaction, occurrence & (2) claims assert common question of law or fact. (3) D’s may be jointly or severally liable!
Ø       Additional claims- if above conditions met, party may join all claims.