Healy Civil Procedure Fall 2014 Outline
I. Pleadings
A. Complaint – R 3, a case is commenced by the filing of a complaint with ct. The principle rules that describe the minimal content for a complaint are: R8(a), 8(d), 9, and 10, as well as Forms 1, 2, and 7-21. Must be concise and direct and omit evidentiary material.
1. Sufficiency of the Complaint –
a. Rule 8(a) provides that a sufficient complaint must contain:
i. R8(a)(1) “a short and plain statement of the grounds for the court’s jurisdiction,”
ii. R8(a)(2) “a short and plain statement of the claim SHOWING that the pleader is entitled to relief,” AND
iii. R8(a)(3) “a demand for the relief sought.”
b. Requirement- Substantive and Formal Sufficiency.
i. Substantive Sufficiency – whether the complaint has legal and factual merit
1) Test: Plausibility – Complaint must state facts showing a plausible (i.e. more than conceivable claim). Plausible under the set of facts alleged, taken as true, that the pl would be entitled to relief. Two-Prong Approach:
a) Strike legal conclusions (i.e. identify conclusory allegations including legal allegations and disregard them for the purposes of the plausibility test)
b) Determine if the well-pleaded, non conclusory factual allegations give rise to a plausible suggest of unlawful conduct (i.e. look at remaining allegations and ask if they meet the plausibility test) Note, look at alternative explanations. Courts will use experience and common sense to assess plausibility.
2) Case: Twombly – (Conceivable) Requires enough facts to state a claim to relief that is plausible on its face. Possible Rule 8(a)(2) requires a showing, rather than a blanket assertion, of entitlement to relief. Showing is different (is more) than alleging. Conclusory legal allegations are insufficient. Applying two prong approach – (a) assertion of unlawful agreement was a legal conclusion and as such not entitled to assumption of truth AND (b) determination if the well-pleaded non conclusory factual allegation of parallel behavior gave rise to a plausible suggestion of conspiracy (ct found more likely that the ILECs were engaged un lawful, unchoreographed free-market behavior). Here, allegations must plausibly suggest (not merely consistent with) agreement – i.e. must allege facts that plausible support the inference that there was an agmt. The pleadings mention no specific time, place or person involved in the alleged conspiracies. A statement of parallel conduct, even conduct consciously undertaken, needs some setting (e.g. place, date, persons) suggesting the agreement necessary to make out a §1 claim; without that further circumstance pointing toward a meeting of the minds, an account of a defendant’s commercial efforts stays in neutral territory. Complaint dismissed bc the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agmt.
3) Case: Iqbal – A claim has facial plausibility when the pl pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Legal conclusions must be supported by factual allegations.
ii. Formal Sufficiency – Does the complaint take the right form
1) Test: Notice – Rule 8(a)(2) – statement must give the defendant fair notice of what the pl’s claim is and the grounds upon which it rests.
2) Case: Swierkiewicz- age discrim case, H: pl need give the def fair notice of what the claim is and the grounds upon which it rests.
2. Filing and Serving the Complaint: Due Process Requires Notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action, and afford them an opportunity to present their objections. In civil suits, this requirement is fulfilled by Service of Process. Service of Process = providing the summons + complaint. Rule 4 governs Service of process. Actual knowledge/notice is insufficient. Service must comply Rule 4 for litigation to proceed. Forms 3, 5, and 6 (supp pg 272-4) deal w the steps a pl must take to give adequate notice.
a. Rule: Constitutional guarantee of due process reqs that a ct provide both adequate notice (Service of Process must be reasonably calculated, under all circs, to notify/apprise Def of the proceedings against him and afford opp to present objections) and have jurisdiction over the def. For serve to be effective it must meet 4 reqts:
i. Notice must be provided in a manner prescribed by ct rule or statute;
ii. Notice must be provided in a way that comports w due process;
iii. Jurisdiction over the defendant must be asserted in a manner authorized by statute or ct rule; AND
iv. Jurisdiction over the def must satisfy the reqt of due process.
b. Case: Rio Properties v Rio Int’l – unable to serve def w process, ct granted petition to allow pl to serve def through email. Ct crafted means must comply w both Fed Rules AND Due Process Reqts. R4(f)(3) permits service by any means not prohibited by int’l agmt and directed by the ct. H: Email may be used for service of process on a foreign corp w.o. exhausting conventional methods of service so long as no constitutional due process rights are violated. Ct ordered service via email was reasonably apprised to alert Defs of pendency of action where structured its business such that it could only be contacted via email, and accompanied w service thru IEC and thru atty who was specifically consulted by defs re this lawsuit. (Note, norm service of process thru atty is insufficient unless atty authorized by party to accept service).
c. Case: Mullane – H: Publication in a newspaper was insufficient notice to trust beneficiaries whose names and addresses were known to the trustee, but appropriate wrt unknown beneficiaries.
d. See p 355 of E & E for hypos.
3. Responding to the Complaint: Two possible options – (1) file an answer (which is a pleading, doesn’t ask court to take any action, if want ct to act on something in answer, subsequently have to move) OR (2) file a Motion in lieu of an answer (not a pleading, motion asks the court to do something/take some action). Note, can put 12(b) claims in answer if just want to mention them for edification of ct; if don’t raise 12(b)(2)-(5) get waived, so if don’t have time to file motion w.in 21 days, raise in answer, then can subsequently file a motion under 12(c).
a. Motions: A judge has discretion to grant a Rule 12(b) motion with prejudice (pl cannot correct defect in the complaint) or without prejudice (allows pl to file an amended complaint correcting the deficiency. If pl does not or cannot correct problem, a judge may then dismiss defective complaint w prejudice)
i. For Rule 12(b)(6) motions for failure to state a claim, cts must accept as true all plausibly pleaded factual assertions, although they need not accept unbelievable assertions or legal conclusions. Also, ct draw all reasonable inferences from properly pleaded alleged facts in favor of pl.
ii. R12(c) Motion for judgment on the pleadings – permits either party to move for judgment on the pleadings, after the pleadings close, but early enough not to delay trial.
1) For pl, 12(c) acts like 12(b)(6), a pl may believe that def’s answer, when coupled w complaint, proves pl’s entitlement to a favorable judgment (eg answer admits all facts and pleads only a legally insufficient defense). Rule 12(c) allows the ct to enter a judgment in pl’s favor where appropriate.
2) For def, 12(c) often acts as a delayed 12(b) motion. As def can file an answer asserting its 12(b) defenses rather than 12(b) motion, after def files the answer, time for filing 12(b) motion has passed. 12(b) requires motion asserting 12(b) def be made before pleading. 12(c) also serves as a vehicle for raising 12(b)(6)&(7) defenses that were not raised in earlier 12(b) motion.
b. The Answer Rule 8(b) – (e). Rule 8(b)(1) imposes two reqts: (1) an answer must admit or deny the allegations in the complaint Rule 8(b)(1)(B), AND (2) it must state in short and plain terms its defense Rule 8(b)(1)(A). Rule 8(b)(2)-(5) describe in detail the first req, as 8(c) lays out in detail the second reqt. (i.e. Under Rule 8(b) def must respond to allegations in the complaint)
i. Fed Rules Civ Pro:
1) 8(b)(1) An answer must admit or deny, or state lacks sufficient info
ave to replead either together w her response to motion to dismiss or prior to ct’s entry of judgment, but w.in 28 days made post judgment.
ii. Bad faith or dilatory (i.e. delay) motive on the part of the movant,
iii. Repeated failure to cure deficiencies by amendments previously allowed,
iv. Undue prejudice to the opposing party by virtue of allowance of the amendment,
1) Prejudice usually occurs when the amendment would cause a significant and unforeseen shift in the nature of the case after the parties have finished discovery, or when the amendment introduces matters that might prolong the case or confuse the jury.
2) See e.g. Williams v Citigroup – no undue prejudice where have notice of what claim is, only trying to make facts specific, also no discovery has occurred.
v. Futility of the Amendment (i.e. amend would clearly not survive 12(b)(6)/SJ)
vi. Etc.
1) Additional factors considered by other cts:
a) Strain on Ct’s docket
b) Discovery Costs.
b. Rule 15(c) Relation Back: Applies where btwn the filing of the original complaint and the amendment the SoL[2] has expired on the new claim. R 15(c)(1) An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable SoL allows relation back; (B) the amendment asserts a claim or defense that arose out the conduct, transaction, or occurrence set out – or attempt to be set out – in the original pleading; OR (C) the amendment changes the party or the naming of the party if, R15(c)(1)(B) same set of facts/transaction is satisfied, and w.in 120 days of filing the complaint, the real party (the party brought in by amendment) (i) received notice of the action AND (ii) should’ve known that the action would’ve been brought against him, if not for a mistake. (See E & E 397)Note, R 15(c)(1) sets forth an exhaustive list of reqts (and amending party’s diligence isn’t one of them) and leaves no room for the ct’s equitable discretion.
i. Test: Whether the original Complaint gave the def fair notice of the newly alleged claims.
ii. Case: Trans v Alphonse Hotel: RICO cannot relate back to the original complaint bc not out of the same transaction/occurrence, where no mention of bribery or fraud made in original complaint- the only predicate act that could give rise to RICO claim. Rather than merely adding a new legal theory based on the same facts as those presented in the original complaint, the pl’s amendment introduced a significant new factual allegation that fundamentally changed the nature of the allegations, both factual and legal, that the pl was asserting against the defs.
iii. Case: Mayle v. Felix: H: New claim did not relate back to an existing claim when the two claims involved “separate episodes” – relation back allowed only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in both time and type from the originally raised episodes… Relation back depends on the existence of a common core operative facts uniting the original and newly asserted claims.
[1] Failure to include in Answer, results in waiver EXCEPT where no prejudice to other party.
[2] Note, SOL begins to run when Pl discovered or should have discovered the injury.
