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Civil Procedure I
Temple University School of Law
Carter, William M. "Chip"

Civpro Carter 2009

A. Why have rules of civil procedure?
1. Consistent, known standards
2. Efficiency
3. Perception of procedural justice
4. Need to regulate the behavior of parties and attorneys; temper adversarial zeal
B. Band’s Refuse v. Borough of Fair Lawn
The extent of the judge’s involvement in the trial suggested he was acting as an advocate.
C. Kothe v. Smith
The judge abused his sanction power under Rule 16(f). The judge’s pressure for settlement, in the absence of bad faith on the part of the defendant, was inappropriate “clubbing the parties into involuntary compromise.” The parties shape the litigation; if they want to stand their ground and go to trial, they cannot be sanctioned as long as they have participated in settlement negotiations in good faith.
A. In General
1. Shapes the story of the case. Rule 8(a)(2): must contain a short and plain statement.
2. The FRCP reflect the tension between deciding a case solely on its substantive merits vs. the technicalities of pleading.
B. What Must Be Pleaded?
1. Gillispie v. Goodyear
A complaint must contain facts that constitute the essential elements of the cause of action. Legal conclusions alone are not sufficient. Plaintiff alleged trespass, a legal conclusion, but included no facts that alleged that defendants were on her property without permission. The lower court granted defendant’s demurrer on procedural grounds (insufficient facts) and granted plaintiff leave to amend her complaint.
2. Purpose of the specificity requirement
a. Defendant needs to know what facts he will be controverting.
b. Court must be put on notice.
c. Strategy
1. Plaintiff wants to give defendant as few facts as possible while still satisfying Rule 8.
2. On the other hand, giving a lot of facts may get defendant to settle quickly.
3. Demurrer vs. Rule 12(b)(6)
a. Demurrer alleges that even if the facts are true, plaintiff has no cause of action.
b. 12(b)(6) motion is essentially the same. Difference: under common law, if demurrer was not granted, it was considered an admission that the facts were true, and defendant would lose the case.
4. Conley v. Gibson (SCOTUS)
Black union members alleged discrimination but did not allege facts demonstrating conscious discrimination by the union (an essential element). Supreme Court overturned 12(b)(6) dismissal, holding: “A complaint should 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.” A 12(b)(6) motion entitles the plaintiff the benefit of an inference from the facts alleged. Here, the railroad abolished jobs held by black union members and the union allegedly did nothing to protect them and did not give them the protection afforded to white employees. (E.g. if you plead duty, breach, and causation, but not injury, will survive 12(b)(6) if it is reasonable from the complaint that you could plead injury.)
5. Bell Atlantic
The court restricted the scope of permissible inferential factfinding that will be sufficient to get past a 12(b)(6) motion. Cannot rest one of the factual allegations in the complaint on the premise that it is hypothetically possible you might prove it. There does not have to be a lot of detail, but facts must be pleaded.
C. Rule 12(e) motion for a more definite statement: how much must be pleaded?
U.S. v. Board of Harbor Commissioners
Rule 12(e) motion for a more definite statement should be granted when a complaint suffers from lack of intelligibility and fails to serve the notice function. Lack of detail is not sufficient to grant 12(e) motion because detail will become available during discovery.
D. Consistency and Honesty in Pleading
1. Inconsistent allegations
a. McCormick v. Kopmann
Plaintiff claimed 1) negligence of defendant truck driver and 2) in the alternative, defendant bar’s violation of a dram shop act intoxicated her deceased husband. Both counts could not be true, because if husband was intoxicated, he was contributorily negligent, and freedom from contributory negligence was necessary to recover against truck driver. Plaintiff’s inconsistent claims were allowed because a jury would determine the truth. Inconsistent claims are NOT allowed when the pleader knows or should know which set of facts is true. Here, the key witness was dead, so plaintiff could not know the true facts.
b. Rule 8(d)(3)
Inconsistent claims are allowed. Policy rationale: 1) efficiency 2) truth-seeking function of litigation.
2. Certification by signing – Rule 11
a. Rule 11(b)
1. Rule 11(b): Attorney certifies to the best of his knowledge and after a reasonable inquiry that a pleading is in good faith, not frivolous, and has an existing basis in law or is an argument for an extension/modification of the law.
2. An attorney does not have to sign the statement to be subject to Rule 11. Any attorney who presents to the court (signs, files, submits, or later advocates) is subject to Rule 11.
b. Rule 11(c)(2) – “safe harbor” – sanctions are initiated by motion of the opposing party
If the opposing party moves for sanctions, a party can get “safe harbor” and can withdraw or correct the pleading within 21 days. If party does not withdraw or correct the pleading within 21 days, the court has a hearing to determine whether sanctions are warranted.
c. Rule 11(c)(3) – sua sponte
If the court issues a sanction proceeding on its own initiative under Rule 11(c)(3), safe harbor is not available.
d. Rule 11(c)(4) – nature of sanctions
Sanctions may be severe or mild, monetary or not. The court has discretion to calibrate sanctions for specific or general deterrence. Rationale: deterrence.
e. Zuk v. Eastern Pa. Psychiatric Institute of MCP
1. Abuse of discretion standard (must be clearly erroneous) is used to review lower court’s decision to impose sanctions.
2. It was not an abuse of discretion for lower court to impose sanctions here. Rule 11 requires a reasonable investigation into a) the facts and b) the law.
a. The facts: attorney did not do a reasonable investigation into whether Zuk’s films had been rented during the statutory period. (Discovery cannot be used as a fishing expedition; must have a prior good faith basis for the claim.)
b. The law: attorney was not reasonably familiar with the copyright law. (However, if he had done sufficient research and framed his argument as an argument for a modification to the existing law, it would not have warranted sanctions.)
c. The test is objective reasonableness; attorney’s lack of skill/inexperience does not make him unsanctionable

a. Rule 12(g)(1): Motions may be joined.
b. Rule 12(g)(2): Except for favored and most favored defenses in Rule 12(h)(2) and (3), a party making a Rule 12 motion cannot make another motion later if that motion was available but omitted in an earlier motion.
4. Rule 12(h): Waiving and Preserving Certain Defenses
a. Four disfavored defenses (Rule 12(h)(1))
12(b)(2)-(5) defenses are waived if not made in the first pre-answer motion, the answer (if no pre-answer motion), a responsive pleading, or amendment allowed by Rule 15(a)(1).
b. Three favored defenses (Rule 12(h)(2))
12(b)(6) motion, failure to join a person required by Rule 19(b), and failure to state a legal defense to a claim may be raised 1) in any pleading, 2) by a motion for judgment on the pleadings (Rule 12(c)), or 3) at trial.
c. Most favored defense – lack of subject-matter jurisdiction (12(h)(3))
Can be raised at any time, including on appeal.
d. Rationale for waiver provisions
Efficiency; goal of complaint is to provide notice, so successive pre-answer motions should not be allowed.
5. Rule 15(a): Amendments before Trial
One chance to amend pleading without permission of the court or the other party.
B. The Answer
1. Admitting or denying the averments
a. Rule 8(b)(1)(B)
In the answer, defendant must “admit or deny the allegations against it by an opposing party.” Do not have to respond to legal conclusions or hyperbole.
b. Lacking Knowledge or Information, Rule 8(b)(5)
If defendant lacks sufficient information to form a belief about the truth of an allegation, defendant must say so; this will be considered a denial.
c. General and Specific Denials, Rule 8(b)(3)
A party that in good faith intends to deny all the allegations, including the jurisdictional grounds, may do so by a general denial. (Must really intend to deny everything.)
d. Representations to the Court, Rule 11(b)(4)
By signing, submitting, filing, or later advocating, attorney certifies that denials are warranted or are reasonably based on belief or a lack of information.
e. Effect of an admission
An admitted allegation is treated as true for the purposes of the litigation. A defendant cannot contest it.
f. David v. Crompton & Knowles
Defendant wanted to amend its an answer to an averment from insufficient knowledge or information to a denial. Defendant claimed when it filed answer, it did not know the exact nature of its contractual relationship with the manufacturer of shredding machine that caused injury. Where defendant avers insufficient knowledge but the information is within defendant’s control at the time of the answer, it is treated as an admission.
2. Affirmative defenses