Civil Procedure: Professor TIM GLYNN
Thomas D. Rowe Book – 2nd edition
Fall 2011
I. Introduction to Civil Procedure in US
a. Adversarial System- US systems, parties control cases
b. Inquisitorial System- Most of Europe, rest of the world; court directs case
c. Rule 1
i. Rule 1- [Federal Rules of Civil Procedure] should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding
ii. Concepts of “just” and “speedy” often conflict with each other- Question of value of each
II. Pleadings
a. Goal of Pleadings
i. The Pleadings are formal written exchanges that set out each party’s claims and defenses; First step to pre-trial; basic notification.
ii. The importance of the pleadings depends on whether or not will go through other pre-trial processes
b. Complaints
i. Rule 3: “A Civil action is commenced by filing a complaint with the court”
ii. Rule 8a: Claim for relief. A pleading that states a claim for relief must contain:
1. A short and plain statement of the grounds for the ct’s jurisdiction
2. A short and plain statement of the claim showing that the pleader is entitled to relief
3. A demand for the relief sought, which may include a relief in the alternative or different types of relief.
4. Must include in Complaint:
a. Jurisdiction
b. Claim
c. Relief
5. CASE EXAMPLES:
a. Conley v Gibson (1957) [SCOTUS]
African American railroad workers sued for damages and an injunction because they were not being represented fairly. Issue- was the complain substantively sufficient 12 (b)(6) and formally sufficient- did it give notice. Holding/Rationale: literal meaning of 8a upheld- short and plain statement is sufficient; just need to state a claim and back it up with the law, which they did; only have to meet minimum requirements at this phase- access to justice is the goal
b. Sweirkiewicz v Sorema (2002) [SCOTUS]
Issue: in civil rights cases (age discrimination) are there heightened pleading requirements. D argued that per McDonnell Douglas, P needed to have a bundle of evidence for proof (prima facie case); court responds that McDonnell Douglas is establishing an evidentiary requirement, not a pleading standard; the literal 8a is all that is necessary- refers back to Conley.
c. Bell Atlantic v Twombly (2007) [SCOTUS]
Class action suit brought against TeleCom Company for violation of the Sherman Act- allege collusion, but claims based on parallel conduct; D motions to dismiss under 12(b)(6). Issue: What are the pleading requirements for a large case involving the Sherman Act. Holding/ Rationale: (Souter) granted motion to dismiss because parallel conduct not concrete; alludes to the scale of an anti-trust case; Q- is he imposing a stricter reading of 8a or is he requiring heightened pleading requirements for Sherman Act cases (Rule 9); Stevens and Ginsburg dissent on the grounds that Conley needs to be upheld; not Courts place to amend the Federal Rules- that is Congress’s job
iii. Rule 8d: Pleadings to be concise and direct; Alternative Statements; Inconsistency.
1. Each allegation must be simple, concise and direct. No technical form is required.
2. Alternative claims are allowed; the pleading is sufficient if any alternative is sufficient
3. Inconsistent claims allowed
4. Answer must contain:
a. Admission
b. Denials
c. Affirmative Defenses.
iv. Rule 9: List which cases require heightened pleading standards (Fraud and Mistakes)
1. Reference Sweirkiewicz (no heightened pleading for prima facie cases) and Twombly (are we creating an overall higher requirement for pleading, or is this a heightened pleading standard just for Sherman Act Cases?)
c. Filing and Serving the Complaint
i. Service of Process:
1. File complaint and summons at clerk’s office with filing fee
2. Each court has local rules describing format, etc
3. Summons: expresses the court’s power over the individual (raises question of Personal Jurisdiction)
ii. Rule 4 :how the plaintiff accomplishes service of process in a Federal court
1. From Due process clause in constitution- defendant must have adequate notice and court must have jurisdiction over person
2. Rule 4 (c) – summons
a. If in person, must be to someone over 18
b. Use a Marshall or Court Appointee
3. Rule 4 (d) Waiver of Service (Form 4 and 5)
a. Send the summons and complaint through the mail
b. Cheaper to client; if other side refuses, then they have to pay for the service
c. Def has 60 days to file an answer (instead of the normal 20)
4. Rule 4 (e)-(k): serving USG; foreign Governments; foreign businesses or individual (4(f)); minors, incompetents
5. Rule 4 (l): Proving Service: need waiver form or affidavit from process server
6. Rule 4(m)- Time limit: must serve within 120 days of filing complaint
iii. Rio Properties, Inc v Rio International Interlink (2002)
Issue: Sufficient Service of process; Service to foreign company; RIO tried to sue RII (Costa Rican); RII tried hard to serve in conventional means, RII tried to avoid service of process; RIO went to court and filed with court for serving under alt. means; court authorized email service of process and snail mail to their US office. RII motioned to dismiss under 12 (b)(5)- argued under 4 (f); have to do all listed elements in section 1 and 2 before can go to 3 (in which court authorizes special procedure. Court- upheld special service of process, argue that all of 4(f) is acceptable, no hierarchy, don’t have to do them in order; plus, email was preferred method of communication for this business, so prob. Best way to serve.
d. Rule 12
i. Outlines how to respond to a complaint
ii. Defendant has 20 days to respond from being served, 60 if waived process
iii. Rule 12 (b), (e), and (f) describe three motions defendant can file
iv. Rule 12 (b) Motions:
1. Lack of subject matter jurisdiction (first thing stated in complaint; can be raised anytime, not waive-able)
2. Lack of personal jurisdiction (waived if not raised in initial answer)
3. Improper venue (waived if not raised in initial answer)
4. Insufficient process (something wrong in the technicalities, wrong name, address, etc; waived if not raised in initial answer)
5. Insufficient process of service (waived if not raised in initial answer)
6. Failure to state a claim in which relief can be granted (raised in any pleading, by 12 (c) motion, or at trial)
7. Failure to join a party under rule 19
v. Rule 12 (e)- seeking a more definite statement of complaint (incredibly garbled and hard to understand; rarely used)
vi. Rule 12 (f)- seeking to strike redundant and scandalous material (rare)
vii. 12 (g) and (h) are the time limits on when you can use 12 (b) defenses
e. Answers: 8 (b)-(e)
i. Rule 8 (b)- statements to be concise and direct, can have alternative theories, contradictory statements
1. Have to raise affirmative defenses
a. Admit, but why no liability or law doesn’t apply in this case;
b. New matter which result s in why D not liable;
c. Statute of limitations; or
d. Reduce liability (comparative negligence)
e. 8 (c) lists affirmative defenses, not an exhaustive list; can also draw from list of the state that the court is located in (like in Carter)
2. Have to admit or deny the claims
ii. King Vision Pay Per View v JC Dimitri’s Restaurant
Point of the case- follow 8(b) rules; D refused to confirm or deny claims 30 out of the 35 times, court was very annoyed at failure to follow rules, so ruled that all 30 times were admission of guilt; client punished because lawyer incompetent.
iii. Carter v United States (2003)
Facts: Carter sued US naval hospital for malpractice and won; damages significantly reduced because of a MD cap. Two issues: is cap on damages an affirmative defense? If yes, does it need to be included in the pleading? Holding: Yes, it is an affirmative defense, 8(c) is not an exhaustive list, and no, does not need to be included in pleading because there was no prejudice (did not change the way P put on case at trial and did not impact outcome of the trial, P had 6 weeks’ notice of this defense before the trial started, could have changed her argument, but did not); unless prejudice, failure to plead an affirmative defense does not mean you forfeit it
f. Amending Pleadings
i. Rule 15 (a)
1. Amendments as a matter of course
a. Before being served a responsive pleading; or
b. Within 20 days of serving the pleading if responsive pleading not allowed and not yet on trial calendar
2. Other amendments- with other counsel’s written consent or with court’s leave; court should freely give leave when justice requires (once on trial calendar, need to get court’s leave)
ii. Dubicz v Com
f due process, lack of personal jurisdiction. The Supreme Court reversed the Oregon court’s ruling on the grounds that it lacked personal jurisdiction. To satisfy due process, defendant must physically be present. If court had attached property first, would be different, because a state does have jurisdiction over property physically present in the state.
SCOTUS emphasizes the notions of fairness in terms of the Defendant, as opposed to the power of a state.
iii. International Shoe Co v Washington (1945)
Q: Does WA have PJ over a company not physically present in the state?
A: Yes, when there are sufficient minimum contacts based on activities in the state. SCOTUS expands personal jurisdiction passed what is required in Pennoyer. Do not need to be physically present, just need to enjoy the benefits and protections of doing business in the state. “Satisfy traditional notions of fair play and substantial justice.”
iv. Shaffer v Heitner
Extends international show to in rem and quasi in rem cases; about fairness; need to show minimum contacts with state to attach property in quasi in rem actions; property must be physically in the state. Land in a state is enough to give jurisdiction in a suit directly related to the land.
c. Applying Minimum Contacts
i. Two Step process in applying personal jurisdiction.
1. What is the law (long arm statute) in the state that the court is located in (applies to both a state court and a federal court located in certain state.)
a. Can have a general law, which allows the most PJ the state can have under the constitution ( CA)
b. Might have additional restrictions(Massachusetts)
2. Does statute satisfy the Constitution (one and the same for CA)
ii. Conflicting Opinions on Minimum Contacts:
1. McGee- CA had PJ over insurance company because they kept doing business with client when he moved to CA 9specific jx, arose out of activities in state; one client is enough)
2. Deckla- No jurisdiction when other party chooses to leave to another state; never chose to go down to other state (in this case it was a will so no “continued business”)
3. Bottom line- the Defendant needs to act in a way which purposely avails himself to the privileges and benefits of the state
iii. World Wide Volkswagen v Woodson (1980)
Clarification of International Shoe; minimum contacts not present because Def was not availing itself to do business in Ohio; State rights versus individual rights, not fair to the individual when there are no contacts with the state; foreseeability alone is not enough.
iv. Asahi Metal Industry v Superior Court (1987)
Question over minimum contacts; unclear where it stands now, but at the time, knowingly placing something in the stream of commerce is not sufficient for minimum contacts. People who supported this decision not on the court anymore
Fairness factors: burden on Def (high); interest of forum state (none); P’s interest in relief (original P not in picture anymore) interstate judicial system’s interest in efficient resolution of shared controversy (NA); shared interest of state in furthering substantive polices (not issue here)
v. Zippo Manufacturing v Zippo Dot Com (1997)
Q: Can PA extend personal jurisdiction over an internet corporation if not physically present in the state. A: Yes, when the site is conducting business in PA. Court gives us two extremes- conducting business over the internet (contracts, sales, etc) versus passive site, for information, non-interactive; Zippo site conducted business and had sales to PA residents, and McGee says that one sale is enough when conducting business.
