Civil Procedure Exam Outline Dean Olsen
THE ADVERSARY SYSTEM
In Federal Court, you must admit what you know is true, you can’t say you don’t know if you really do, and you will be held responsible if you lie.
FRCP 11 – Sanctions – court has discretion in imposing sanctions.
21-day safe harbor –party may withdraw incorrect papers/ change them w/o being sanctioned.
All claims must be non-frivolous.
Court can bring Rule 11 sanctions on their own.
Hadges v. Yonkers Racing Corp. – P makes misstatements of fact, D makes motion for Rule 11 sanctions. RULE: You must serve motion for sanctions on P 21 days before filing it with the Court. In addition, an attorney can rely on reasonable statements from client when pleading.
Pleadings
Complaint- STATE A LEGAL CLAIM
a. Code Pleading – must plead specific facts, but can get dismissed for pleading legal conclusions
Gillespie v. Goodyear-RULE: Code pleading requires you to state facts, not legal conclusions.
Robinson v. Board of Cnty Comm’s- present facts, not “evidence”
b. Notice Pleading – gives notice of issues to be litigated, requires a short plain statement of the facts, can give a legal conclusion
Dioguardi v. During – Italian guy w/ tonics, pro se case. àRULE: P is only required to provide a short plain statement under Rule 8(a).
i. FRCP 8A MUST be in complaint or claim is dismissed (usually can refile though):
1. Statement of SMJ
2. Short and plain statement of the claim
a. Notice pleading- don’t need a lot of detail but must include substances of the claim
· Need detail:
1. (9B) In allegations of fraud or mistake
2. (9G) Special Damage- damages that do not normally flow from an event
3. Demand for judgment
FRCP 9 – Pleading special matters – This rule deals with the exceptions to Rule 8(a). For these, you must plead specific facts.
Capacity; 2. Fraud mistake, condition of mind; 3. Condition precedent; 4. Official document of act; 5. Judgment; 6. Time & place; 7. Special damage; 8. Admiralty
Warth v. Seldon – Penfield housing case. RULE: Exception to 8(a) – In order to challenge zoning, must show you have standing to sue (P must have a personal stake in the outcome)
Deny v. Carey – RULE: You do not have to plead facts constituting fraud, but rather just the circumstances constituting fraud.
The Answer:
Ds Response- w/in 20 days of service of process must respond by motion (not a pleading) or answer (a pleading)
ii. Answer- MUST:
1. Respond to allegations of complaint (each of them)
a. Admit
b. Deny (Failure to deny can constitute an admission except as to damages)
c. I don’t know
2. Raise affirmative defenses (Rule 8C)
a. Must plead specifically
b. Injecting a new fact that shows P cannot win
FRCP 8(c) – affirmative defenses – must raise each in an answer or lost for good. Ex.) assumption of risk, contributory negligence, estoppel, re judicata, etc.
3. Must plead or you risk waiver- FRCP 7(a) –complaint, answer, reply (if there is a counterclaim), answer to cross claim, 3rd party complaint, and 3rd party answer. Court may allow a reply to an answer or a third party answer.
Denials
Zielinski v. PPI – P sues D assuming D owns forklift, D generally denies allegation, P cannot amend b/c of SOL. RULE: If D knowingly makes an inaccurate statement, he may be estopped from denying those inaccurate statements at trial.
Denials for lack of Information- party is w/o knowledge & info sufficient to form belief as to truth
Negative Pregnant Denials- deny exactly the allegation is sometimes seen as an admission to something lesser (i.e. deny owing an exact
that were not brought is offered @ trial and D does not object, this is a waiver of the right to object if a motion to conform the pleadings to the evidence is made after trial.
Beeck v. AquaSlide n’ Dive Corp. – P claims D is manufacturer of slide, D admits & later finds out they were not the manufacturer and the Sol has run. D wants to amend answer. RULE: You can amend the pleadings if justice so requires and pleading is not made in bad faith & other party is not prejudiced.
Schivone v. Fortune – P names wrong party in libel suit – ct applies 4 part test and says that P cannot change the party after the SOL b/c the correct party would have to “know” that they would have been sued within the SOL.
***Now, under 15(c) – P can amend once within 120 days to reflect the correct party***
Amending Pleadings (Rule 15)
iii. (15A) 3 Rules:
1. P has a right to amend once before D serves answer
2. D has right to amend once w/in 20 days of serving her answer
3. If no right to amend you may seek court permission to amend
a. Shall be freely given if justice so requires
Amended – adding facts that occurred before filing
Supplemental – adds facts that occurred after the initial filing
There are four setting in which you can amend pleadings:
You want to add a claim not originally included after the answer is filed or you want another remedy not originally included
(In Code pleading) You want to change facts & cause of incident t
