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

I.   System of Procedure
Federal Rules
–        Federal Rules of Civil Procedure (drafted by judges, if Congress OKs, they go into law)
o   Federal: Apply to federal courts only
o   Rules: Binding – reading the cases alone is not sufficient, cases interpret rules
o   Civil: Not criminal
o   Procedure: Not substantive law, but what you have to do to prove an issue, although procedure can overlap w/ merits – setting bar higher for certain claims at pleadings point
–        Why have rules of procedure?
o   Consistency, efficiency – limited resources, manageability, procedural justice – get your day in court; temper adversarial zeal as to other parties, court system; prevent abuse
–        Federal courts: Courts of limited jurisdiction because of Constitution: Federal Q, diversity of citizenship
–        System of Procedure: Defines how information gets to decision-maker, how information is presented, standards of proof, scope of review; standardized
Judge’s Place
–        Lon Fuller, The Problems of Jurisprudence: Judgment strongest when: 1) Judge doesn’t act on his own; 2) Judge has no direct/indirect interest in outcome; 3) Judge focused on issues before him; 4) Existing controversy before judge; 5) Matter decided on evidence, arguments presented; 6) Parties have ample time to present case
–        Marvin Frankel, The Search for Truth: An Umpireal View: At a minimum, intrusive judge risks confusing the issues than guiding; coming up w/ theory that counsel may have considered and rejected; etc.; ignorant judge the proper head for the adversarial system – best to be relatively passive moderator
–        But in complex litigation, public law litigation, judges become dominant figure in organizing and guiding case.
o   PT conferences also changing judge’s role: Shift from neutral adjudicators to managers of costly, complicated process
Band’s Refuse Removal v. Borough of Fair Lawn (N.J. Sup. App. 1960): A judge may not assume the role of an advocate in a trial over which he presides.
–        Garbage K. Ordinance says only w/ permit can you collect garbage. Only get permit if you have a K w/ city. Other company collecting garbage already. Ordinance invalidates K. Band’s sues.
o   Judge set aside 1 day for trial; took 21; he called 27of 32 witnesses, 24 of which were not named, appointed an amicus to perform attorney-like actions, conducted an investigation into municipal corruption; refused to let P drop a count.
–        Courts must not only be impartial; they must give the appearance of impartiality.
o   Ignoring procedural rules denies due process.
–        Trial judges can help clarify an issue for jurors, but must remain and appear impartial.
o   Parties shape the case in adversarial system – judge an umpire
o   Judge can be involved – but not to this level – it indicates a predisposition
§ Judges can appoint special masters, independent experts under federal rules
–        For pro se party, judge can do more – minimal assistance to get at the truth
Kothe v. Smith (2nd Cir. 1985): Although the law allows judges to strongly encourage settlement, it doesn’t allow coercion to force settlements.
–        Judge recommended settlement figure between $20K and $30K. He said if they settled for about that much during trial, he’d impose sanctions. The case settled for $20K a day into trial and D was penalized to get his insurer’s attention. Ex parte communications usually enough to toss case.
–        Pressure tactics to coerce settlement are not permissible. “The judge must not compel agreement by arbitrary use of his power and the attorney must not meekly submit to a judge’s suggestion, though it be strongly urged.”
–        Parties have right to go to court, they can learn a lot in one day of trial
o   No reason to presume bad faith; jJudge’s sanctions presumed bad faith, reached activist role
–        Rule 16 is meant to maximize efficiency of the court system by insisting that attorneys and clients cooperate w/ the court and abandon practices that unreasonably interfere w/ the expeditious management of cases – setting time limits for settlement OK.
o   Counsel required to be available for settlement discussion.
II. Pleadings and Motions
Rule 8(a): Complaint
–        Complaint: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
o   Must contain plain, concise statement of the facts that, if true, constituting a cause of action, not simply the conclusions of law of the pleader
–        Pleadings requirements require some skill – how much to say vs. what not to say: Purpose? Provides notice to D, D will incur costs, should know what the P’s issue is; notice to court – guidelines for determining whether discovery sought or evidence is relevant; Deciding merits – could allow termination of suit at early stage – on the pleadings If something is meritless and properly pleaded, seems OK to toss
–        Ds need facts to shape defense: Learn who to talk to, what to ask to shape defense
o   Rule 8(a)(2): Says you need short, plain statement of facts showing entitled to relief
o   Don’t require a lot of detail, but enough to put court, D on notice of underlying facts
o   Can include conclusory, argumentative language but need facts.
–        Gillispie deals w/ what must be pleaded; Conley, Board of Harbor deal w/ how much must be pleaded
o   Gillispie offered conclusions, not facts – should have said Ds entered property, refused to leave when asked, not just that they trespassed
o   Board, Conley – facts must be pleaded, but how much? Not much – enough to put D on notice of the tort alleged and how it fits into tort (battery – D hit me in the chest)
o   Complete fishing expeditions not allowed, however, under Rule 11 – must be some facts to back it up
Gillispie v. Goodyear Service Stores (N.C. 1963): Complaint must contain plain, concise statement of the facts that, if true, constituting a cause of action, not simply the conclusions of law of the pleader; failure to do so allows dismissal on failure to state a claim grounds.
–        P alleged that four individuals maliciously and deliberately trespassed upon her residence and deliberately assaulted her, using “harsh and threatening language and physical force,” placing her in great fear. She said they caused her to be a prisoner, opened her to scorn, embarrassment and harm.
o   She didn’t state facts as to what occurred, when it occurred, where it occurred, who did what, the relationships of Ds to P or of Ds to each other or any other facts.
–        No fact alleged here shows they were there w/o permission, so no trespass shown
–        Why did P appeal and not amend or refile? Strategy: w/hold facts, keep to minimum
o   Why did Navajo Nation provide so much? More facts may show strength of case, encourage settlement; influence judge; narrow discovery (for broad discovery, frame complaint broadly – whatever will survive)
–        More detail in pleadings, more risk of dismissal under Rule12(b)(6) – way to test claim early
–        How much factual information do you have to provide to meet the standard of Rule 8?
Conley v. Gibson attempts to answer that – black union members accused union of discrimination – railroad abolished jobs held by blacks – union, acting according to plan, didn’t do anything for the employees; in federal law, must show purposeful racial discrimination
§ Under Rule 12(b)(6): Dismiss only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”
§ Ds are on notice here, Ps claims sufficient – Ps show similarly situated people – only difference being race – were treated differently; inference from facts alleged
o   BUT Bell Atlantic – last year – significantly narrows Conley standard – no longer will court allow inference from facts alleged – must be facts to support each allegation
o   Some say Conley turns Rule 8 on its head by holding that a “claim is insufficient only if the insufficiency appears from the pleading itself.”
o   Posner on notice pleading in Sutliff, Inc. v. Donovan Companies, Inc.: Conley attitude toward pleadings never taken literally – Pleader must set out sufficient factual matter to outline the elements of cause of action, … and contain allegations on every material point necessary to sustain a recovery on any legal theory or contain allegations from which an inference fairly may be drawn that evidence of these material points will be introduced
–        Complaints can be too long, prolix and detailed to run afoul of Rules 8(a) and (d)(1).
o   Mendez v. Draham: 1,020 numbered paragraphs, 392 pages; judge s

inal I don’t know is an admission, it’s a substantive change that is governed by Rule 15;
§ Rule 15 requires figuring out if the change is allowed when it will greatly prejudice the opposing party
§ P injured because the statute of limitations is running and might not be able to sue the actual responsible party and can you even sue the subsidiary, which is a part of the corporation
o   Court denied the amendment- effect of decision is that they are bound
–        It’s not too burdensome to hold D to knowledge of the terms of its purchase agreement, effects on rights and liabilities nine years after the sale.
Zielinski v. Philadelphia Piers, Inc. (1956): Shows risk in making denial in multi-faceted allegation.
o   P sued D, alleging he was hurt due to something owned by D; D answered by denying that graph – PPI transferred the operation to another company before P’s injury but that was realized after P could substitute the other company
§ Court held PPI would be estopped from denying that it operated the pier on the date of the injury – in part, this came from PPI’s discovery responses, which failed to alert P to the problem
o   The court also held that PPI failed to comply w/ Rule 8(b)’s direction that “when a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder.”
o   Court said D at least knew P was injured and should have specifically denied portions and admitted portions, warning D that he sued the wrong party
–        Should D’s obligation to admit parts of a paragraph of the complaint pursuant to Rule 8(b) be relaxed where the complaint is ambiguous or confusingly drafted (under Rule 10(b))?
o   Some courts say no – unless D has objected to the complaint under Rule 12.
–        Negative pregnant: D denies it did x, y and z. But maybe, it did just z or x. Courts may find it misleading, treat it as ineffective.
–        ****Difference between denial, affirmative defense and Rule 12(b)(6)
o   Affirmative Defense: Even if true, there is a defense under the law (must accompany normal answer – denial/affirm/not enough information)
§ Goes beyond contradicting factual element of Ps case – new issue that is defense to liability
o   Denial simply contradicts factual allegation of complaint
o   Rule 12(b)(6): Three reasons to attack complaint: 1) Failure of fact – valid theory, but missing fact; 2) failure of law – facts OK, but don’t hit upon something for which relief can be granted; 3) can be based on affirmative defense – statute of limitations
o   Effect of characterizing something as an affirmative defense is that burden shifts to D to raise it – if D fails to plead it, it’s waived
§ How to determine if issue is an affirmative defense or element of P’s case
·         If statutory claim, look to statute’s text – Board of Harbor Commissioners – statute says except X, Y, Z – on D’s to say it was one of those
Gomez v. Toledo (1980): P was a ex-cop who sued the police chief for firing him w/o hearing; district court dismissed the case, finding D had qualified immunity for acts in good faith w/in scope of duties, P failed to plead that D was motivated by bad faith. Scotus said statute required two allegations: that D deprived P of a federal right and that this was done under color of law. D, therefore, must have pleaded qualified immunity because it’s a defense; whether D acted in good faith relies on facts in D’s control, there was no way for P to know – burden on D to raise the issue affirmatively