Read p. 118-177
Why do we have the judicial branch
OVERVIEW
9 phases of litigation
1. pleading
initiating suit, putting people on notice, narrowing issues for parties and courts
a. complaints (P)
b. Rule 12(b)(6) – motion to dismiss from D*
c. answer (D)
d. Rule 12s – motion to strike, M.D.S.
e. Rule 12( c) – motion after answer*
2. discovery
engage in fact uncovering
3. summary judgment
Rule 56 – can reach final judgment, brought by D or P*
4. pre-trial phase
conferences, expect witness list
5. trial
a. P case
b. D case
c. Rule 50 – given facts there is no other conclusion*
d. jury charge
e. deliberation
f. judgment*
6. 1st appeal*
7. 2nd appeal (discretionary)
8. Enforcement
9. Out of Court Settlement
*Only final judgments are appealable
Pleadings
1. Writ
2. Field Code
3. Notice
Writs
– narrow the issues to a single issue (form of action)
– get ready for trial
– English common law
– each writ had its own rules
– parties would plea back and forth until the issue was narrowed
– did not allow joiner of claims or parties
– had to be exact or case was thrown out
– could choose to sue in equity court (chancery courts)
– file complaint
– less rigid than writs
– could sue multiple defendants and bring multiple issues
– no jury
– in US until mid 1800s
– went straight from pleadings to court
Field Code
– on line in mid 1800s in NY
– one form of civil action and rules would not vary from claim to claim
– had discovery
– three kinds of pleadings (complaint, answer, reply and (demurrers))
– less important to narrow the issues
– Gillispie v. Goodyear Service Stores (Sup NC 1963)
Issue: P cause of action did not contain facts. From a demurrer for D, P appeals
Rule: A complaint must contain a sufficient plain and concise statement of the facts constituting a
cause of action.
– notice
– narrow
– weed out frivolous claims by looking at facts
– must plead ultimate facts (bare facts to set out allegation), instead of legal conclusions
– evidentiary facts not allowed or needed
– but admitting in the answer, it cannot be brought up at trial
– by stipulating to detailed complaint, the P can be screwed
Federal Rules
– liberal
– installed in 1938
– brought uniformity to federal jurisdiction
– abolished separate system of law and equity
– borrowed from field code
– state claim instead of facts
– only about notice
– Poser suggested there must be some facts involved
– US v. Board of Harbor Commissioners
-12(e) hard to win, not favored
– D moved for 12(e) but was denied because the plea is restricted to situations where a pleading
suffers from unintelligibility rather than the want of detail
– in a field code state, detail would fish out frivolous cases
– 12(f) – motion to strike – disfavored motions
– McCormick v. Kopman, (Ill 1959)
– P sued because D hit her drunken husband driving. Two counts contradicted each other and the jury
found the D guilty on both counts
– the counts can be pleaded together if the P does not know the truth (alternative pleading) but P
can not collect on both.
– Rule 11 updated 1983 to make sanctions easier.
– Rule 11 was downgraded in 1993
– 21 day safe harbor period
– Zuk v. Eastern Penn Psychiatric Institute (3rd 1996)
– P psychologist sued former employer D for copyright infringement for taping sessions. D filed
12(b) and sanctions under 11( c)(1)(A). Court asked P to explain why they should not be sanctioned. They were and the client paid his sanctions but the attorney didn’t and appealed.
– 28 § 1927 Counsel’s liability for excessive costs
– sanctions are to deter conduct, not punish and the amount of sanctions were too high ($15,000)
– extensive review of Rule 11
– Rule 11(b)(4) deals with the denial of allegation by the defendant
– Rule 11(b)(1)
– can be brought by motion or on court initiative
– safe harbor not available if court initiative
– Rule 11(d) DOES NOT APPLY TO DISCOVERY
– Rule 11 must be served on opposing counsel 21 days before filing to allow them to fix it before
filing; the defective complaint would then be amended
– Rule 12(b)(6)
– Mitchell v. Archibald & Kendall, Inc 1978
– P was shot in the face when waiting to unload his truck on the street adjacent to the
loading dock. D files 12(b)(6) because act was on a public street.
– Where the pleadings raise a contested issue of material fact, a 12(b)(6) motion must be
denied.
– Plaintiffs admitted they were parked on the street
– “Premises” is treated as the defendant’s property boundaries
– most courts will not grant 12(b)(6) if facts state some claim
– look most favorably on complaintee
– normally brought before answer
– advantages – do not have to answer, gives you more time
– if you know P cannot amend complaint, 12(b)(6) is a good idea
– might be telling P was is faulty with his case
– watch out for Rule 11
– Rule 9(b) – Fraud, Mistake, Condition of the Mind
– Ross v. A.H. Robins Company 1979
– P alleging fraud in a securities transaction must specifically allege the acts or omissions
upon which his claim rests and the time at which the events occurred
Cash Energy, Inc v. Weiner 1991
– P alleged 4 corporate officers participated in the chemical dump
– Court uses 9(b)
– Claim will be dismissed unless P file an amended complaint that pleads at least an outline
of the factual basis for the claims rather than mere conclusions
Leatherman v. Tarrant County NICU
– whether a federal court may apply a heightened pleading standard in civil rights cases
– court stated it must rely on summary judgment and control of discovery to weed out
unmeritorious claims sooner rather than later
– Rule 12(b)(4) + (5) – the way parties are put on notice > summons and complaint
– defects in process of notification
– Rule 12(b)(7) – P files suit but fails to include necessary party
When served, a D will answer with 12(a) or a 12(b) defense
The favored defenses can brought anytime under 12(h)(2) because they might not be known until after discovery
The defense
Entry of Default – Defendant has choice of doing nothing. Courts rely on plaintiff to make motion to enter default. Way to force D to reply.
Consequences:
1. Cuts off D’s right to participate in suit; a late answer is null and void.
2. Also allows P to go to next step for entry of default judgment.
3. All allegations in complaint are deemed admitted.
Liquidated – clerk can enter default.
Unliquidated – must be heard by judge. Will require a proveup hearing so that P will have to put up evidence to establish the amount of damages. D has right to contest damages.
Avoiding Default Judgment:
Rule 55c – motion to set aside entry of default.
Rule 60b – motion to set aside default judgment.
Some courts will take other forms of participation as a response to avoid default:
D is entitled to notice of further hearings if entered an “appearance”
Some cases have deemed informal contacts not an appearance.
One case informal settlement negotiations sufficient where D indicated intent to defend on the merits.
Lenient Approach to answers – why?
Rule 54B – Frow Doctrine – restricts court’s power to enter final judgment for less than all the parties (one of the parties defaults), policy to avoid logically inconsistent adjudication – Frow v. De La Vega.
Distinguished in In re Uranium Antitrust Litigation – where defendants severally and jointly liable.
Answer –
1. Rule 8b – requires D to either admit or deny the allegations, limits ability to make a general denial. (10b allows to include these in one paragraph). ONLY HAVE TO ADMIT IF CERTAIN IT IS TRUE – if some reasonable basis can deny it, or if really don’t know.
2. Prayer for relief.
3. Raise affirmative defenses – even if P can make out prima facie case on each claim – still cannot recover b/c some defense at law. (Consequence of not raising them in answer is waiver). Exception is could amend your answer. Could raise it at trial if put P on notice – if not unfair (prejudiced plaintiff).
Review GOMEZ p. 196 – plaintiff must allege bad-faith to plead around defense. Ruling is NO – P’s don’t have to plead around defense to rebut potential affirmative defenses.
THINK ABOUT WHY DON’T HAVE TO PLEAD AROUND AFFIRMATIVE DEFENSES IN COMPLAINT.??????
4. Counterclaims (Wigglesworth)
Zeilinski v. Philadelphia Piers, Inc. – proper way to answer long, conjunctive statement is to admit the parts that are true and deny the parts that are not. – laid out in Rule 8.
