Civ Pro Outline, Professor Hafetz, Fall, 2010
I. Introduction to Civil Procedure
A. Federal courts are three tiered
1. District courts, court of appeals, supreme court
1. Everybody has an automatic right to appeal
2. The supreme court is discretionary and can choose which cases to hear
II. Pleading
A. Perspective on Pleading
1. Currently, courts use notice pleading.
2. A short and plain statement of the claim showing the pleader is entitled to relief is what is required
B. The Complaint
1. The Substantive and Formal Sufficiency of the complaint
1. Must contain
a. Caption
i. Set forth the name of the court, designation of the pleading (complaint for damages) and the names of the parties
b. Jurisdictional allegations
i. Complaint must allege the grounds upon which federal jurisdiction is invoked
c. Body
i. The short and plain statement
ii. Allegations should be simple, concise, and direct
iii. May plead in the alternative by alleging facts based on inconsistent legal theories
iv. May plead inconsistent facts if there is reason for not knowing which version is true
v. Does not need to anticipate defenses
2. Filing and Serving the Complaint
1. Method of giving notice must have a reasonable prospect of giving actual notice
a. Personal delivery
b. Mail
c. A court may authorize service via e-mail when service by more conventional means has been shown to be impossible
2. Reasonable efforts to identify and locate affected persons are required
3. The notice must intelligibly advise the defendant of the nature and place of the proceeding
4. Constructive notice and failure to receive
a. Sometimes when a person cannot be located after reasonable efforts, published notice will suffice
b. If a constitutionally valid procedure is used, the judgment is binding even if some interested parties do not actually receive notice (either actual or formal)
5. The usual method for giving notice is service of a summons and complaint on the defendant directing that the defendant file an answer to the complaint or suffer a default
a. Methods of service
i. Personal delivery
ii. Other means of service may be authorized by the court
b. Waiver of Service
i. A plaintiff may ask a defendant to waive formal service. This is done by sending a request for waiver of service to the defendant by mail. To avoid unnecessary costs of service, a defendant located within the US who fails to waive service without good cause can be liable for the costs of formal service
ii. A D who waives service receives additional time to answer the complaint
C. Responding to the Complaint
1. Rule 12 motions
1. Test for sufficiency of complaint
a. The claim must set forth the legal basis for the P’s claims and contain sufficient detail to apprise the D of the claims against her
2. May make a motion to make the claim more specific because it is so vague that it would be unreasonable to require a reply
3. May motion to strike certain portions that are insufficient as a matter of law
4. Must be filed within the time for answering
5. Waiver of defenses
a. If a D does not file a rule 12 motion or, if she files but fails to include all available defenses, she waives objections to the form of the complaint and defenses of lack of venue, personal jurisdiction, or sufficiency of process.
i. Subject matter jurisdiction, failure to join an indispensable party, and failure to state a claim are not waived
2. The answer
1. An admit, deny, or state is too vague and need clarification
a. If you do neither, then it is assumed admitted
2. Denials
a. Takes place in parts, denying specific allegations, negating an allegation or alleging a lack of sufficient information to respond
3. Affirmative Defenses
a. Affirmative defenses and new matter (something that D must prove to avoid P’s claim) must be pleaded in the answer
b. Test is whether the defendant would bear the burden of proof
c. If new matter / defense is not plead in the answer, D may not offer evidence of such D unless P fails to object to introduction of the evidence or court allows leave to amend
D. Amending the Pleadings
1. You may appeal once as a matter of right either before the other party serves a responsive pleading or within 20 days after pleading is served
2. You may amend you pleading at any time with the court’s permission as long as the amendment does not result in prejudice to the opposing party
3. If you are trying to amend the complaint after the statute of limitations has run out, the amendment must relate back to the date of the original complaint
1. It relates back if the cause of action asserted in the amended pleading arose out of the same conduct, transaction, or occurrence as the original complaint
E. Policing Pleadings and Motions
1. Rule 11 requires that every paper filed in court be signed by an attorney, or by the party himself
2. A signature certifies that
1. She has made an inquiry reasonable under the circumstances to support the factual and legal positions taken
2. The factual assertions have evidentiary support
3. The claim, defense, or other legal position is supported by existing law or makes a nonfrivolous argument
4. Was not filed for an improper purpose
3. Sanctions
1. Sanctions are discretionary, limited to what is necessary to deter repetition
2. A party may move for sanctions and the court may impose sanctions on its own initiative
III.Discovery
A. The Mechanics of Discovery
1. Party Initiated Discovery Devices
1. Depositions
a. An examination (usually oral, may be in writing or over the phone) of a witness under oath in the presence of a court reporter
b. Parties have a right to represented by counsel, and counsel may cross-examine the witness
c. There is a 10 deposition limit total for plaintiffs and defendants combined
d. Limit can be changed by both parties stipulation or court order
e. A subpoena can be issued to command a witness to appear and give testimony
f. Deposition of corporation
i. Organization designates the appropriate witness
g. Opposing counsel may object to a question
2. Interrogatories
a. Each party may be served with up to 25 interrogatories
b. Interrogatories are written questions from one party to another party requiring written responses
c. May be served only after prediscovery conference (rule 26(d)(1)
d. A party must answer or object to interrogatories within 30 days
e. If an answer is incomplete, party may motion for court to roder responding party to answer fully
3. Requests for Admissions
a. Asks the party to acknowledge the existence of facts
b. May apply to facts controlling eth outcome of the litigation or opinion about the application of law to fact
c. Is an issue eliminating device
4. Requests for Inspection of Documents and Other Things
a. Materials discoverable
i. Documents
1. Writings, drawings, graphs, charts
has a proper purpose, is not unreasonable or unduly burdensome
4. Rule 37 sanctions imposed if the delay or refusal of discovery was due either to:
1. Willfulness, bad faith, or any fault of party/deponent
2. Sanctions include dismissal, default judgment, admission, monetary penalties
IV. Case Management, Settlement, and Alternative Dispute Resolution
A. Perspectives on Case Management, Settlement, and Alternative dispute Resolution
B. Case Management
1. The Scheduling Order
1. A scheduling order must be entered within 90 days after a D’s appearance and within 120 days after service of complaint
2. At least 14 days before scheduling conference or order, the parties are to hold a conference regarding the nature and basis of their claims and defenses and to develop a discovery plan.
2. Some Basic Case-Management Techniques (rule 16)
1. Based on parties submissions, the court is to enter an order limiting the time to complete discovery
2. The court may not compel admissions, but may pressure parties to abandon unsupportable positions
3. The court may suggest, but not dictate, the terms of settlement
4. A judge may suggest ADR to assist in resolving the dispute at a pretrial conference
3. Final Disclosures: The final Pretrial Order
1. Seeks to resolve as much as possible before trial and to give notice of the subjects to be covered at trial
2. At least 30 days before trial, each party is to
a. Disclose the names of the witnesses the party expects to present
b. Designate witnesses whose testimony will be presented by deposition
c. Indentify documents and other exhibits
3. Final pretrial order controls at trial and can be modified only to prevent manifest injustice
C. Settlement and Alternative Dispute Resolution
1. An Overview of Settlement and Alternative Dispute
2. Settlement
3. Using ADR Techniques in Litigation
1. Mediation involves a neutral third party who attempts to find a common ground on which the parties can reach an agreement
2. Summary jury trial
V. Judge and Jury
A. The Jury
1. The right to trial by jury in Federal Civil Cases
1. The right to a jury trial is guaranteed by the 7th amendment
2. Any party may demand a jury trial on any issue protected by the Constitution or a federal statute by
a. Serving a written demand on the other parties, and
b. Filing the demand (rule 5) no later than 10 days from service of the last pleading directed to such issue
3. When do you have a right?
a. Basic historical test, whether the claim involved is legal (jury) or equitable (nonjury)
b. In general, the claim must seek a legal remedy, not an equitable remedy
c. May be statutorily created
2. Selecting a Jury
1. Voir Dire of jurors
a. Challenge for cause
i. No limit
ii. May be challenged if it appears that the juror has a financial interest in the litigation, or for other reasons indicating he will not be an impartial juror
2. Peremptory challenge
a. Each party is entitled to a limited number of challenges without a showing of cause, but cannot be based on the juror’s race or sex
