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Civil Procedure II
Temple University School of Law
Sonenshein, David A.

CIVIL PROCEDURE II

SPRING 2011

SONENSHEIN

PLEADINGS

2 Complaint and Answer

4 Supplemental Jurisdiction

6 Preliminary Injunctions

DISPOSITION WITHOUT TRIAL

6 Voluntary Dismissals

7 Motions to Dismiss

7 Summary Judgment

8 Judgment as a Matter of Law

9 Renewed Motion for JMOL

9 New Trials

10 Relief from Judgment

10 Jury Instructions / Jury Verdicts

10 Appellate Review

11 Class Actions

DISCOVERY

13 Scope

13 Discovery Devices

14 Duty to Preserve

15 Privileges

17 Sanctions

18 E-Discovery

TESTIMONY

19 Depositions

21 Expert Witnesses

PLEADINGS AND MOTIONS

I. FEDERAL PLEADINGS

A. Complaint and Answer

Background

Pleading had to be fact pleading before the federal civil rules

Historical functions of pleading:

i. Notice

ii. Fact presentation

iii. Screening

iv. Issue narrowing

Gillispie v Goodyear Service Stores

i. Complaint states no facts upon which legal conclusions may be predicated

1. Doesn’t say what occurred, where it occurred, who did what, when it happened, relationships between plaintiffs and defendants

2. Fact pleading, more restrictive about what details need to be in the complaint

3. Old rule

Rule 8 – Notice pleading: under the new rules of civil procedure, there is no pleading requirement of stating facts sufficient to constitute a cause of action, but only that there be a “short and plain statement of the claim showing that the pleader is entitled to relief

What are checks on person filing frivolous lawsuit?

i. Motion to dismiss – 12(b)(6) motion –demurrer

1. Court only has the complaint at this stage, but court asks, is there enough information alleged in the complaint so that a reasonable jury could find for the plaintiff?

2. Difficult to lose a 12(b)(6) motion

ii. Motion for Summary Judgment – Rule 56

1. Enough facts for which the jury could find for the plaintiff

a. Court looks beyond the complaint

b. If the answer is yes, go to trial, if no, case is disposed of

2. What is the burden on the moving party?

a. Same burden that is at trial – preponderance or clear and convincing evidence

iii. Directed verdict motion – record before judge is same as JNOV

iv. Or JNOV

Waiver

i. Rule 12(h) – a party waives any defense listed in rule 12(b)(2)-(5) by: omitting it from a motion or failing to either make it by motion or include it in a responsive pleading

ii. Ex) if I get a complaint, and then file a motion, and then submit answer, and include other defenses that I didn’t include in my motion, I waive them bc I had the opportunity to motion them and I didn’t

Swierkierwicz v Sorema N.A.

Sues for ethnic discrimination

Prima facie case is an evidentiary standard, not a pleading requirement

Prima facie is a flexible evidentiary standard, it shouldn’t be turned into a rigid pleading standard for discrimination cases

Rule 8 – notice pleading. Do not need additional facts

Especially in times of troubling lawsuits. There is no heightened standard. General rule of pleading

Prior to Swierkowicz, the rule was that you have to touch each base somehow or another with a fact or conclusion. Question became, can you touch them with conclusions or just facts?

Court specifically rejected fact pleading in 1938

After this case, do NOT have to touch each base.

Cannot lose 12(b)(6) in negligence case if:

You say, he negligently did something. No facts alleged, but sayings its negligent is enough

Garcia:

Garcia is running prostitutes into a hotel

Defamation suit

Said they fired him bc he was running prostitutes

Defendant said complaint didn’t say anything about publication, so that wasn’t enough to make out defamation suit

Court said following liberal standard, it was enough bc he said they defamatorily said this about him

*Fed Rules – do not want to see words “cause of action”, they want to see the word “claim”

*Congress passed a higher pleading standard for securities cases – by statute

*Rule 9(b) for fraud claims requires more particularized facts

Bell Atlantic Corp v Twombly (2007)

Overturns Swierkowicz – say you have to have some facts

Pleading is not enough because they haven’t shown enough facts that there is a plausibility that a conspiracy occurred

Just saying that a bunch of people were doing the same thing at the same time is not enough to allege a conspiracy

Must provide factual support that there is a conspiracy. Touch every base. No legal conclusions permitted.

Factual allegations must be enough to raise a right of relief above a speculative level

More than bare boned allegation that conspiracy occurred

A continuum. Not a probability, but plausibility. Plausible based on what you alleged.

Policy argument?

Anti-trust litigation is very expensive, why waste the time and money on discovery in this kind of fishing expedition

This changes what kind of pleadings can be brought in certain kinds of cases

Problem: Conspiracy is something investigated through discovery, defendants are the ones who allegedly conspired – they don’t need the facts now. All they need to know is the basis of the claim – that there is a conspiracy to shut us out of the telephone market

Iqbal

Bush administration on global war on terror

Pleadings were not enough

It is unclear the breadth of Twombley’s changes in pleading standards

Pleading standard for notice pleading – is it plausibility? Must at least mention it

If Twombley and Iqbal are on the way to changing the way we think about notice pleading, then some of the Title 7 and other cases need to be overruled. But they haven’t.

1.FRCP 8(a) COMPLAINT:

a. “short and plain statement of the claim showing you are entitled to relief”

b. state a basis for jurisdiction

c. make a demand for relief

2. must meet the Heightened Pleading Standard to survive a motion to dismiss – notice pleading means short statement of facts, but Iqbal and Twombley call for a heightened pleading – plausibility that conspiracy occurred. What is the take away? Write as many facts as possible to touch on each base just to be safe. Can’t just state a legal conclusion and hope to survive. If you don’t have a lot of facts, you’re in danger of losing.

3. FRCP 8(b) – ANSWER:

a. Admit

b. Deny

c. Insufficient knowledge (equivalent of deny)

d. Affirmative Defense

1. alibi (etc.) not saying it didn’t happen, but there is a reason (statute of limitations)

B. Supplemental Jurisdiction

1. DEFINITION: Jurisdiction federal court has over claims in a lawsuit, which are claims over which they would NOT have original jurisdiction (not federal question or diversity).

a. pendant: brought by a P as a federal claim, add a state law claim which is so related that the court can accept it

b. ancillary: third party claims, cross-claims, etc

c. Owen Equipment and Erection Co. v. Kroger (p.235): diversity statute precludes assertions of pendant jurisdiction when P’s amended complaint files a state law claim against a non-diverse third party

d. Finley v. United States (p.235): in courts of limited jurisdiction, supplemental jurisdiction must be authorized by congress in the statute you’re using before you can exercise it

2. Rule 18(a) – a party asserting a claim, counterclaim, crossclaim, or third party claim may join, as independent or alternative claims, as many claims as it has against an opposing party

a. only a pleading rule. Although the rules may allow the claims to be joined, separate determinations will have to be made for

er diversity claims failing to meet the original jurisdiction standard b/c they fail to meet the amount in controversy requirement

A) me suing on 2 claims, can add together to get to $75k requirement as long as related

B.) me and lisanne suing Mike on same case/controversy, at least one has to be over $75. Aka, me 75k, lisanne, 25k, she can piggyback . me 25, her 50, cannot piggyback to make 75k

C) me suing 2 defendants. Can’t join claims to get to $75k. Each must be over 75k on its own.

b. “contamination” is different:

i. once you cease to have complete diversity, original jurisdiction fails

ii. why the distinction? AinC is only there to make sure petty claims aren’t wasting the federal court’s time. Whereas diversity is a different issue, complete diversity goes to the whole point of diversity jurisdiction: you’re worried about home turf

c. CAFA impact: now, you only need to resort to CAFA to obtain federal jurisdiction when no claimant has a claim above $75,000

C. Preliminary Injunctions (FRCP 65)

1. cannot issue without notice

2. restrain activity until trial

3. If any of these factors are high, it is OK if the others are low (sliding scale):

a. (1)likelihood of success on the merits at trial

b. (2)likelihood of irreparable harm (Schrank v. Bliss (#1): this is the most important factor)

c. (3)other legal remedy would be inadequate

d. textbook: (4)balance of hardships weighs in favor of injunction

e. Schrank: (4) issuing an injunction would not work any disservice to the public interest

4. emergency: can get a TRO without contacting the other side to preserve the status quo *as it was before the wrong was complained of* until you can get a hearing for your preliminary injunction

i. must clearly show “irreparable injury, loss, or damage will result”

ii. must show why unable to give notice

iii. lasts as long as preliminary injunction motion takes

5. granting either one of these requires a security from the Plaintiff to compensate Defendant for harm resulting from a wrongful injunction

II. PRE-TRIAL DISPOSITION

A. Voluntary Dismissals (FRCP 41)

1. When can it be made?

a. prior to answer or motion for summary judgment – whichever comes first:

i. P may file a “notice of dismissal”

ii. P does NOT need the permission of the court or the consent of the other party

b. after the answer or motion for summary judgment:

i. P must obtain a “stipulation of dismissal” from all parties OR

ii. P must obtain the permission of the court (this is the only situation where you must explain your reasons for seeking dismissal)

2. NOT permitted to dismiss merely to escape an adverse decision or seek a more favorable forum

3. voluntary dismissals are WITHOUT PREJUDICE unless the stipulation or court says otherwise

a. if by notice of dismissal OR stipulation, may only dismiss without prejudice once

b. if by permission of court, no limit

c. if the P later brings the case again, the court may order the P to pay all or part of court costs and stay the proceedings pending compliance (attorneys fees are probably not included)

B. Motions to Dismiss (FRCP 12(b)) what you pleaded in complaint does not set out claim.