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

Civil Procedure
Professor Gonzalez


A. Overview of Civil Litigation Process
-involves disputes, not crim in nature
-several stages or phases in the process –
1.       pleading  

a.      complaint – beginning the formal litigation process btwn pl and def; this is the pl’s move
b.      motion to dismiss or a technical motion – one of the possible responses def may have; again this is def’s move
c.      answer – def’s move

2.       discovery – parties request to see information and documents / tools available that allow the parties to force opponents in litigation
3.       summary judgment – point is to determine whether or not the litigation can be decided now or if it cant it merits further; if a case is a no-brainer and it is clear that one side or the other is going to win the case if it goes to trial then the court will grant sum judgment saving time and effort; pl or def can bring this motion but it is typically brought by def
-if a motion for sj is brought but not granted then move into the pre-trial phase
4.       pre-trial phase – get the case ready for trial; pre-trial conferences where parties will sit with the judge, admission of evid at trial, judge may encourage settlement; narrows the issues, limits the potential for surprise at trial
5.       trial – jury verdict; decides the merits of the dispute
6.       appeal – first appeal of right; in a federal cosurt you appeal to circuit court
7.       collect

**cases can end at different points, merits of the dispute can be decided at – 2, 3, 5, 6

B. Central function of a system of civ pro
-describe and define the dispute btwn the parties; nature of the dispute affects – 1) substantive law applied to facts, 2) procedural course

II. PLEADING: PART 1 – Historical Evolution of Writ System and Field Code

A. General Functions
o        puts the courts on notice about the dispute and the nature of it
o        eliminates weak claims
o        focuses or limits the dispute / issues (see writ system below)
o        guides parties in discovery, narrows a scope
o        tools permit litigants to ask a lot of questions
o        provides a record of the judgment – a dispute can only be tried once
*the main function of the writ system – limit/focus issues and prepare case for trial; the functions of fact / code pleading – all of the above

B. History (from class – better)
1.       emerged in English Common Law
2.       common writs – trespass, covenant, debt, assumpsit, trover, etc.
3.       procedural system that placed weight on the first phase of litigation, pleading
4.       the aim of pleading here was to focus or limit dispute / issues
5.       litigation here was two steps – pleading on one hand, and then trial on the other hand, followed by some appellate procedure; there was no pre-trial, discovery or sj phases // bc there were only two phases, the pleading phase was really important, there was a lot of weight placed on it
6.       pleading was not unitarian – each legal theory or writ had a formal or technical set of pleading rules; technicalities / rules varied based on the legal claim involved
7.       writ system had a tendency to sometimes decide cases not on merits but on pleading technicalities; this meant that there were situations where pl’s attorney did not plead correctly for the writ they were seeking and case would be dismissed for failure to comply with the technical pleading rules involved
8.       pleading in the writ system did put courts on notice, did it eliminate weak claims? – not really, definitely focus / limit disputes or issues, DID NOT GUIDE parties in discovery, and what about record of judgment? – probably not
9.       just remember that the centerpiece or main aim of the writ system was to focus or limit the issues
*functions – limit / focus issues, that is, get the case ready for trial

1.       pleading emerged as a result of the writ pleading system
2.       American Reform System – NY was the first state to adopt this in 1848
3.       aims – it gave notice, eliminated weak claims, focus/limit disputes and issues (not as central as in the writ system), guided parties in discovery, and provided a record of judgment
4.       a big aim was to get rid of the technicalities / complexities in the writ system; there was one uniform way to plead now à simplified the process quite a bit
à new phases added to civil litigation process; there were unified and simplified procedures to three pleading moves – complaint, answer, reply
*note that field code was a reaction and reform effort to the pldg complexities presented in the writ system
*functions – give notice, eliminate weak claims, limit / focus issues, guide discovery, provide record for res judicata

*Pleading in courts of law or equity – equity courts under writ system were special tribunals for which pls could bring claims if legal remedy was insuff; ex – money damages would be insuff to address pl’s claim or resolve dispute, and rather an injunction would be the only proper remedy; equity courts had their own procedural system // code pleading abolished distinction – one court, one type of pleading

C. History (from book)
*pleading – derives from the practice that developed after the Norman Conquest (1066) by which persons filed pleas in the emerging royal courts for a remedy against one who had wronged them
o         initially pleas addressed to violns of the king’s peace
o         eventually royal courts came to accept a wide range of disputes btwn priv indivs that did not directly affect the monarch
-writ – an order to the sheriff to bring the person complained of before the judge on a certain day to answer the allegations

*Forms of Action – standardizn of writs resulted in the devt of forms of action as each writ came to embody an action which included both the substantive theory of recovery and the procedures for obtaining a remedy
-forms of action had diff procedures as to such matters as the form of bond required and type of trial
-number and complexity of the forms of action grew; forms of action were firmly ensconced in pleading practices in many American states:
o         trespass – action for damages for unlawful injury to pl’s person, property, or rights
o         trespass on the case (or case) – action that developed for the situation in which the injury did not result from direct or immediate force but as an indirect conseq of def’s act
o         covenant – action for damages for breach of a contr under seal
o         debt – action to recover a specific sum of money, or a claim that could be reduced to a certainty, due under an express agreement
o         assumpsit – action for damages for non-perf of a parol contr not under seal
§         special assumpsit – remedy for breach of promise even if the breach had no element of misfeasance but was a failure to perform
§         general assumpsit – allowed recovery on contracts implied in fact even though all the els of a contr claim could not be satisfied
o         detinue – action to recover personal chattels in specie from one who acquired them lawfully but retained them without right (ex – bailment)
o         replevin – action to recover possn of goods unlawfully taken
o         trover – action, orig a sub-category of case, for damages ag def who had found another’s goods and wrongfully converted them

*Common Law Pleading
-declaration – pl initiated suit and caused a writ to issue by invoking an appropriate form of action in a declarn
-def had three ways to respond (called pleas) –
1) plea in bar – denied one or more of the essential allegns (traverse) or admitted them but stated that some legal right, such as being a minor, justified the conduct (confession and avoidance)
2) dilatory plea – challenged the jurisdiction of the court (plea to jurisdicn) or alleged some procedural defect in the structure of the suit, such as improper joinder of parties or lack of capacity (plea in abatement)
3) demurrer – claimed that even if the facts were as stated by the pl, they did not state a claim for which the law provided a remedy (general demurrer) or that there were defects in the form of the pleading (special demurrer)

-def’s pleas did not generally end the pleading process at CL; pl could file a replication designed to join issue with the def’s pleas
-the def could then file a rejoinder, joining issue with any issues raised by the replication which had not been specifically responded to
-further pleadings – surrejoinder, rebutter, surrebutter – available to insure that issue was joined as to all matters

-pleading was the central focus of law suits
-frustration of merits bc of two features of the system – 1) single issue idea meant that once parties were at issue the court might decide the case in favor of the winner on that issue, 2) pigeon-hole strictness of the forms of action prevented relief for a pl clearly entitled to relief who had chosen the wrong writ due to uncertainty about what the evid would show à no opp to switch writs in a given proceeding or to combine them in one proceeding

-forms of action applied to law courts, while in equity courts – a grievance was brought by filing a bill which contained a narrative section describing the complaint, a charging section that rebutted anticipated defenses, and an interrogative section designed to demonstrate that relief was equitable and fair, these pleading procedures were less technical than those at law

*The American Reform Experience
-completed by 1873 with passage of Judicature Act in England
-Amer colonies, then the states, varied in degree of acceptance of English method
-most important Amer attack on the CL pleading system was devt of code pleading with the passage of the Code of Civil Procedure in NY in 1848 (aka Field Code) – abolished the existing forms of action and mandated that there be but one form of action à complaint only had to contain a statement of the facts constituting the cause of action in ordinary and concise language, answer should contain specific denial of each material allegn of the complaint, and plain and concise statement of any new matter constituting a defense or set-off w/o unnecess repetition; pleadings were limited to complaint, answer, reply and demurrers
-code was model for half the states; had considerable impact; code played imptant role in accustoming courts and attorneys to non-technical fact pleading

D. Cases
*Gillispie v. Goodyear – field code pleading
Facts – Pl (Gillispie) alleges she + 4 defs (employees of Goodyr Service Stores) are citizens and residents of NC. 
Prayer states – defs w/o cause or just excuse maliciously trespassed on pl’s residence, used harsh language and phys force, and then assaulted her. They humiliated and embarrassed her, subjecting her to public scorn and ridicule and caused her to be seized and exhibited to the public. Bc of def’s malicious and intentional assault, pl was damaged and injured in the amount of 25K. Acts of defs were deliberate, malicious and with the delib intention of harming pl so pl is entitled to recover her actual and punitive damages. Trial court sustained def’s demurrers; pl appealed.
Rule – Facts must be alleged in the complaint upon which pl’s cause of action is based.
Rationale – A complaint must contain – plain and concise statement of facts constituting a cause of action; facts must be set out in complaint to disclose issuable facts determinative of pl’s right to relief; Complaint must allege the material, essential, and ultimate facts upon which pl’s right of action is based; law is presumed to be known but the facts to which law is to be applied are unknown until properly presented by the pleading and est by evid. 
**HERE – pl alleges in a single sentence that def w/o cause or just excuse and maliciously trespassed; there are no facts; allegns do not disclose what occurred, when it occurred, where it occurred, who did what, the relnships btwn defs and pl or of defs
-there is no factual basis to which the court could apply the law; the complaint falls short of min reqs; HELD – com

se might be prejudicial, or for ex pl may make an improper demand for relief and if there is a statute that limits damages, and pl is asking for more, then def could have this stricken or move to strike it; book says a motion to strike can be used to attack an insuff defense or part of a prayer for relief that is not justified by the law

C. Gonzalez’s comments
*2 lines of reasoning –
1. Conley v. Gibson (majority) – AA union members accused union of racial discrim; complaint had no specific, direct, factual allegn it alleged rr had purported to abolish jobs held by AA and despite repeated pleas the Union did not protect them ag these discriminatory discharges and refused to give protecn like that given to whites; Court upheld sufficiency of complaint on basis of extremely broad std for RULE 12(b)(6) motions; Court said detailed facts not necessary, just a short and plain statement of the claim will give def fair notice of what pl’s claim is à this is the notice pleading standard, in which the plaintiff only has to put def on notice of legal theories that laintiff is bringing against defendant, pl can simply allege “I’m suing you for negligence arising from this accident”; this would allow the pl to plead legal conclusions;

2. Sutliff v. Donovan (Posner, minority / exception) – pleader must set out suff factual matter to outline the els of his cause of action or claim, pf of which is essential to his recovery; direct allegns must be contained on every material point necess to sustain a recovery on any legal theory à this is the more factual basis / concrete factual matter standard; more similar to Code style pleading, requires more factual detail

**these approaches lead to uncertainty in what the pleading standard should be and show that there is a split in the federal courts in the amount of specificity the pl has to put into a complaint, this sort of breaks down the uniformity that the fed rules were supposed to bring into court à note that Conley is the RULE and Sutliff is the EXCEPTION, most federal courts follow Conley
Why is Conley the majority – federal rules sought to simplify pleadings even more than Field code and to allow pls to plead notice-style, thus there’s no game about details

D. Cases
*United States v. Board of Harbor Commissioners – the problem of specificity
Facts – Govt (pl) filed an action against defs alleging that defs owned and operated a facility from which oil was discharged into the DE River. Govt alleges this violated the Federal Water Pollution Control Act. Defs (SICO and NASCO) contend that the allegation in paragraph 11 failed to specify which defs were responsible for the oil discharge, the amount of oil discharged and removal costs and the actions which are alleged to have caused the discharge. The defs move for a more definite statement pursuant to RULE 12(e). 
Rule – a complaint need not allege the specifics of the transacn of which the complaint is made.
Rationale – RULE 8 requires only that a complaint reasonably NOTIFY the def of the nature of the claim being made against him. In this case, the complaint can be read to charge each of the defs with owning or operating on-shore facilities which discharged oil into the DE Riv. This allegn fairly notifies defs of the claim against them. Reqs of RULE 8 are met and satisfied, so a RULE 12(e) motion is INAPPROPRIATE.
Defs motion for a more definite statement is an effort to flesh out govt’s case, a misuse of RULE 12(e); what defs want (evidentiary info) is more properly a part of discovery (under RULES 26-36).
Also, court says that a motion for a more def statement, 12(e), should not be used to prepare for a motion to dismiss, 12(b); request for amore definite statement should not be granted unless movant shows there is a substantial threshold question that may be dispositive
Class – court says as long as the pl has met reqs of RULE 8(a)(2), that is, as long as there is a short and plain statement of the claim, motion to strike is not allowed as a device for defs to gather more specificity; it’s a misuse to flesh out the case, the defs can find out / flesh out more in the discovery phase

*McCormick v. Kopmann – inconsistent allegns
Facts – McCormick’s (pl) husband was killed when def Kopmann’s truck collided with his car. McCormick’s widow sued Kopmann and the Huls, owners of a tavern where McCormick had consumed alcohol the night before. 
Count 1 – under IL Wrongful Death Act – alleged Kopmann negligently drove his truck across the center line and collided into McCormick’s car, and that decedent was exercising ordinary care of his car
Count 4 – separate allegn in the same complaint that alleged that Huls, the other defs, violated the Dram Shop Act by serving McCormick alcohol from which he became intoxicated and this resulted in the collision
Kopmann moved to dismiss the complaint bc Counts 1 and