WOLFF-CIVPRO-Spring 2011
Pleadings- Rules 7-12, 15: FR Forms 1-19
A: Complaint Filing: A case commences when the complaint is filed.
Rule 8(a)
1. Why the court has jurisdiction
2. Short and plain statement of the claim:
a. FRCP does not use the word facts, but uses claim
i. Twombly and Iqbal: have changed the pleading rules to these three rules:
1. P must plead FACTS supporting a PLAUSIBLE (not just possible/conceivable) claim.
a. In alleging fraud or Mistake, the party must use specific facts with particularity. i.e. malice, intent…
2. A court will ignore conclusions of law. (If P uses conclusory statements in pleading they will be ignored.
3. The Court will Use its own experience and common sense to determine whether a claim is PLAUSIBLE. (This is a lot more detail than ever before)
3. Demand For the relief sought.
Rule 9(b) and 9(g): If there are claims of fraud and mistake, the details must be particular. You cannot just plead in generality. Must also give detail on special Damage.
B: Defendants Response:
Rule 12: Within 21 days after service you must respond in one of two ways:
1. By Motion: is not a pleading, but a request for a court order.
a. 12(b) is the basis for motions to dismiss.
2. By Answer: Is a pleading. The 12(b) defenses can be raised either by motion or by answer. Two things must go in the answer.
a. Rule 8(b) Respond to the complaint. 3 ways to respond.
i. Admit some stuff.
ii. Deny some stuff. **Failure to deny is treated as an admission
iii. In appropriate circumstances you say that you do not know.
b. Raise affirmative Defenses: Pg. 31 FRCP. Rule 8(c) With affirmative defenses you are injecting a new fact. A denial does not add anything. Statute of Limitations, res judicata, statute of Frauds. * YOU MUST PLEAD AFFIRMATIVE DEFENSE or else it is waived.
12(b) Motions to Dismiss:
1. SMJ
2. Personal Jurisdiction
3. Venue
4. Insufficient process:
5. Insufficient Service of Process
6. Failure to state a claim
7. Failure to join an absentee under rule 19 (indispensible party problem)
Joining motions: FRCP pg. 39
Rule 12(g)(h): boil down to 3 rules
1. 12(b) 2,3,4,5: if you are going to raise them you must put them in your first response. If you do not, you have waived them.
2. 12(b) (6) and (7): can be raised at anytime throughout the trial. They aren’t waived.
3. 12(b)(1): cannot be waived but can also be raised at any time during the case, trial, appeal, or anything else.
HYPO: P sues D, D files motion to dismiss for 12(b)(5). Motion is denied. So D now files an answer and in it says that there is no Personal jurisdiction or venue. The court holds that you cannot now claim those because they were not raised in your first response (motion or answer).
JOINDER: Counterclaims and CrossClaims
Profs like to test this because it is a way to raise subject matter jurisdiction and a way to test the joinder rules.
A. CLAIM JOINDER BY THE PLAINTIFF (how many claims?) 18(a) says P can join as many claims as they want, but they do not have to be joined. After all the claims are there, then we assess whether SMJ exists.
B. CLAIM JOINDER BY THE DEFENDANT: The D asserts a claim and is going to sue:
1. Counterclaim: 13(a) and 13(b) is a claim against an opposing party. This is ordinarily by the D against the P. This is filed with the answer. Two kinds
a. Compulsory: 13(a)(1) arises from the same transaction or occurrence as the plaintiffs claim. It is compulsory because if this rule applies then you must assert that claim in this case. If not asserted here, the claim is barred and waived. If a counterclaim: (1) Arises out of the same claim or controversy that is the Subject matter of opposing party’s claim and (2) does not require adding another party whom the court has no jurisdiction over, it must be brought in same case.
HYPO: Two people driving and they crash. A sues B and wins. Then B sues A in a separate action. The court dismisses it because they should have counterclaimed in the same action. Must have been asserted before.
b.
(a)(1)(b)(1): Is the absentee’s interest harmed if they are NOT joined into the party.
19(a)(1)(b)(2): Absentees interest may subject the defendant to multiple or inconsistent obligations.
HYPO: You own 1,000 shares of stock; somebody else claims that they helped you buy it and thinks that it should be in their joint name. This other person sues the corporation asking the court to order the company to cancel the stock and rename in into their name. Is the Absentee Necessary? Probably yes to each question. Go through each of them methodically and explain them on an exam.
Is joinder of the Absentee Feasible: It will be feasible if there is personal jurisdiction and if bringing in the absentee does not screw up diversity.
Necessary absentee but joinder is not feasible: The Court will either proceed without the absentee or the case gets dismiss. Rule 19(b) has four factors: pg.53 FRCP
If the court dismisses this case, will the plaintiff have an adequate remedy?
Indispensible party is one where joinder is necessary but diversity does not exist and absentee cannot be reached.
E: Impleader Rule 14: Third Party Practice. (USC 1367 and Kroger Case)
A defending party is going to join somebody new named (third Party Defendant (TPD). Cannot do this just because we want to. We can only join them because the TPD may be liable to the defendant on the plaintiffs claim. This is usually for:
Indemnity: i.e. Third party should have to pick up the complete tab.
Contribution: Third party should at least pay his share of damages.
HYPO: There are 2 joint tortfeasors. Two people mug P. P sues only one of them. That defendant should only have to pay half of the judgment. So the defendant brings in the other third party defendant for their part of the damages to P through Impleader.
