Civil Procedure I Outline

Civil Procedure Outline
Fall 2001: Professor Pendo

I. Choosing a system of procedure
A. Band’s Refuse- advocate judge
B. Judge’s role in an adversarial system
1. Comparisons b/w adversary (impartial) & investigatory.
a. Judge’s role is a passive arbiter – limited to adjudicating the issues raised by the parties. Judge plays a more active role in “public question” litigation.
C. Kothe v. Smith – pre-trial conference sanctions by judge.
1. Look at Rule 16 in Fed. Rules; 45.601 in F.S. (Federal Case) diversity of citizenship is the reason it was brought into trial at federal court.
2. In cases like Kothe the court (federal) applies state substantive law while also applying the Fed. Rules of Civ. Pro.
II. Describing and Defining the Dispute –
A. Historical Evolution of Pleading
1. Forms of Action – under common law – the writ system. Then the code pleading and now the notice pleading.
2. Common Law Pleading – lack of access/writ system
3. American Reform experience.
a. Gillispie v. Goodyear – Rule 8 (a) (2) code pleading case b/c N.C. is a code pleading state. Procedure vs. Merits.
b. Purposes: The guiding principle is that the pleadings should give notice to all parties of the nature of the lawsuit, sufficient to allow the other parties to make pre-trial and trial preparations.
1. Functions of Pleadings revised: Pleadings, under common law and some of the Field codes: (1) stating the facts underlying the case; (2) formulating the issues
for trial; (3) weeding out sham claims; and (4) notifying the parties so that they could prepare for trial. The first three of these are not performed primarily by the pleading under the Federal Rules:
a. Fact stating: It is now used in discovery.
b. Definition of the issues: Issues defined through discovery and also through pre-trial conference – Rule 16.
c. Sham claims: Meritless claims are now disposed of primarily through summary judgment Rule 56.
2. Notice-giving: Rule 8 (a). “short and plain statement”
3.Conley v. Gibson (p.124) (black union members accused their union of racial discrimination. Though the complaint contained no specific, direct factual allegations indicating conscious discrimination by the union, the Supreme Court
upheld the sufficiency of the complaint, arguing that the complaint gave the union fair notice of the legal issue at hand.) Start of notice pleading: Supreme Courtheld “A complaint not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”
B. Describing and Testing the plaintiff’s Claim:
1. The problem of specificity:
a. U.S. v. Board of Harbor Commissioners – use of Rule 12 (e) motion for more detail denied. It’s only for clearing up unintelligible language. Applies to plaintiff ’s complaint as well as plaintiff’s counterclaim.
b. Making a Motion: Legal Memorandum form – gives a notice – if evidentiary materials are presented under a 12 (b) motion gets converted to a Rule 56 – Summary Judgment – opposing counsel may file a reply to a motion or request a hearing.
c. A 12 (f) motion provides to strike “redundant, immaterial, impertinent or
scandalous matter or any insufficient defense. It applies to all parties involved.
2. Consistency and Honesty in Pleading:
a. Inconsistent Allegations: Alternative pleadings. Rule 8 (e) (2).
1. McCormick v. Kopmann: contributory negligence suit – 2 counts under alternate pleading brought upon 2 different defendant’s at trial evidence = t