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Civil Procedure I
St. Johns University School of Law
Sovern, Jeffery

Civil Procedure
Professor: Jeff Sovern
Fall 2011
I.   Pleadings
a.  Objectives of Pleadings:
                                i.   Narrow the issues to be tried.
                              ii.   Give notice to the parties in order to avoid a surprise at trial.
1.   Constitutional requirement – from Mullane, Due Process requires notice to (D), “reasonably calculated, under circumstances, to apprise interested parties of suit and give them an opportunity to present objections”
                            iii.   Give notice to the court of the nature of the case.
                            iv.   Serve as a permanent record and as a basis for res judicata.
                              v.   Dispose of cases without trial when the pleadings revealed there was no real issue of fact.
                            vi.   Determine that the minimum requirements for bringing a claim have been satisfied (Twombly)
b. History
                                i.      Common Law Pleadings – there were 10 forms and pleading had to conform to one of them, this lead to an endless array of pleadings (back and forth between (P) and (D))
1.   Goal: to reduce pleadings to one single issue
                           ii.         The Field Code –  adopted 1846, (David Dudley Field, creator) and provided major changes – abolished Common Law forms of action, merged law and equity, and limited pleadings to three:
1.  Complaint
2.  Answer
3.  Reply – response to counterclaims
c.   Pleading under the FRCP (“Notice Pleading”):
                                i.      Purpose is to give notice to other parties of what claims and defenses are being raised. Rule 7(a): types of pleadings allowed (p. 33)
1.      Means à meaning that you do not have to give a lot of detail, can be conclusory, main purpose is to put the other side on notice of the suit
a.       Allowed parties to make legal conclusions!
b.      Pleadings provide general notice underlying event and claims/defenses arising from it.
2.      Reduction in the pleading (have only THREE pleadings today):
a.       In a lawsuit b/w one P and D, FRCP 7(a) allows only:
                                                                                   i.      Complaintà paper filed by plaintiff that specifies all claims he has against the defendant.
                                                                                 ii.      Answerà paper filed by defendant in which she responds to all of plaintiff’s claims and files any counterclaims.
1.      Defendant may raise certain defenses prior to the answer by filing a motion.
                                                                               iii.      Replyà plaintiff’s response to defendant’s answer.
1.      Only results when defendant’s files a counterclaim.
b.      No separate courts for law and equity claims.
d.    Honesty in Pleadings – Rule 11 (Objective Standard)
1.  Rule 11 – if a lawyer has done something inconsistent with conducting a reasonable inquiry then he has violated Rule 11(p.38)
a.If  11(b) is violated, a court MAY impose a sanction under Rule 11(c)(1) but does not have to
                                                                                   i.      If Rule 11(b) is violated then court may impose a sanction but does not have to.
                                                                                 ii.      Motions for sanctions must be made separate from any other motion and must describe the conduct that violated Rule 11 (b).
                                                                               iii.      Sanctions also come from §1927.
b.      11(c)(4) – Types of sanctions court can impose
c.Rule 11(c)(2) governs motions for sanctions
d.      Rule 11(c)(5) limitations on monetary sanctions
e.Sanctions under Rule 11 can also come from §1927 (p. 627)
e.      Burden:
                                i.      Burden of pleadingà refers to the obligation to plead each element of a cause of action
1.  Because of Erie – this is strictly procedural – federal courts use the FRCP to determine who has burden
f.      Form of Pleadings (Rule 10):
                                i.      Case Information (Caption) Rule 10(a)
1.      Name of court, title of the action, type of pleading (complaint or answer) and name/address/telephone # of the attorney presenting the pleading.
                              ii.      Body—allegations set forth in numbered paragraphs
1.      Claims and defenses must be divided into separate statements FRCP 10(b)—rarely enforced.
a.       Separate causes of action must be stated separately.
b.      Each paragraph should deal with a limited subject.
c.       Parties making multiple claims should avoid repeating same facts and simply reference a prior paragraph.
                            iii.      Designation of the Parties
1.      Must specify when a party is suing in capacity (trustee, executor).
2.  where a party is a person other than a natural person suing in his own right, the parties’ capacity (trustee, executor) is specifically designated
3.  Prayer for Relief – at the conclusion of the complaint, (P) “prays” for relief he seeks
                          iv.  Signing and Verification (Rule 11(a) p. 38) – statutes require that all pleadings be signed by a party or his attorney; a person verifies a pleading by attaching an affidavit stating that the person knows or states on information and belief that the matters contained in the pleadings are true (but Rule 11(a) says that you only need this if rule or statute says otherwise).
                             v.  Allows Parties to Attach Written Documents (Rule 10(c) p. 37)
g.     Inconsistent Pleadings are ok – Rule8(d)(3) – p. 36
                                i.  You can state as many separate claims or defenses as the party has regardless of their consistency
1.  Conflict between Rule 8 and Rule 11: still have to comply with limits of Rule 11…must be reasonable under the circumstances
                              ii.      Inconsistent Pleadings:
1.      Under Rule 8(d)(3) you can have inconsistent pleadings as long as they act consistent with Rule 11 (Honesty).
2.      Rule 8(d)(2) – permits a party to set forth two or more statements of a claim or defense alternately or hypothetically and to state as many claims or defenses the party has regardless of consistency.
a.       Simply Put – a pleading cannot be dismissed bc it includes allegations that are inconsistent with Each other.
h.     Sufficiency in Pleadings – Rule 12(c) and 12(e) – p. 41
                                i.  12(c) Motion for a judgment on the pleadings – all that is required of the (P) as a matter of pleading is that the complaint set forth essential facts with reasonable precision/sufficient particularity to acquaint the (D) with the cause of action (see R

it has to include
3.      (3) a demand for relief (From who and what you want from them)
a.      What relief you are requesting (injunction or money)
b.    8(a)(3) – requires the plaintiff to state a demand for relief sought – this could be any kind of relief injuctive, declaratory judgment, specific performance of a K, ormany damages.
c.      Rule 54(c) – p. 113 – Even if a party has not demanded that relief, (P) can get more than what was asked for. (Example: If you ask for an injunction and don’t get it, court can award money damages)
                                                                                   i.      It is a good idea to put as much money damages down as possible ( even though in some jursidctions you don’t have to put the amount) bc if the defendant defaults then you could only get up to the amount that you put down in your statement. But keep in mind rule 11 that lawyers must be ethical.
                                                                                 ii.      Exception to the rule – In default judgments, you can get no more than what was asked for (also in Rule 54(c).)
                                                                               iii.      Can you ask for different types of relief? Yes, see Rule 8(a)(3) – p. 34
                                                                               iv.      It applies to any pleading that states a claim for relief – usually that means the plaintiffs claim for relief but it applies to counter claims, cross claims, and third party claims ( the same in the reverse rule 8(b) and  8(c) will apply to pleadings by a plaintiff that respond to counter claim of the defendant.
4.  Rule 11 requires an attorney to sign the complaint certifying that it is not frivolous
a.      Every pleading, written motion, and other papers must be signed by an attorney. This applied to the defendant’s pleadings, and motions.
I.                   Answer to the defendants counter claim (reply)
a.       Sometimes the plaintiff will respond to the answer of the defendant with a Reply.
b.      Rule 7(a) – the court can order a reply if the court thinks it is useful
c.       The reply has the same laws as a defense
II.                Motion for a more definite Statement – Rule 12(e)
a.       If a complaint is unintelligible or missing critical information a plaintiff can seek refinement or explanation
b.      It is unlikely a court will grant this given the low pleading standard set up by rule 8(a). They will prb say you need to get your information in the discovery process. If it is missing so much information that the defendant cannot answer then you can make this motion but you might want to make motion to dismiss for failure to state a claim.