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Civil Procedure II
Temple University School of Law
Mishkin, Jeremy D.

Civil Procedure II
Temple Law
Prof. Jeremy Mishkin
Spring 2015
What is the purpose of the Federal Rules of Civil Procedure? (Rule 1) just, speedy, and inexpensive determination
Historical functions: 1) Provide notice of the nature of the claims; 2) set forth facts in support of claims; 3) allow courts to evaluate merits of a claim to weed out the frivolous, and; 4) narrow the issues before the court.
Current functions: Provide notice of the claims and defenses
Rule 1: Fed. Rules of Civ. Pro. govern all civil actions in federal courts. Their purpose is to promote justice, speedy and inexpensive determinations
Rule 2: Only one form of action – civil action
Rule 3: Start civil action by filing complaint
Rule 4: Summons
Rule 7: Pleadings Allowed; Form of Motions and Other Papers
Rule 8: General Rules of Pleadings
Rule 9: Pleading Special Matters: there are some things you can plead “generally” (Malice, intent, knowledge, and other conditions of a person’s mind) but other things you need to plead with “particularity” (fraud, mistake)
Why heightened standard for malice & fraud? Will significantly hurt an individuals reputation, shouldn’t be included in a claim without substantive evidence and thorough consideration.
Rule 9(g): special damages must be specifically stated (damages that are unusual for the type of claim, not natural). Failure to plead special damages results in P being unable to present evidence on those damages at trial and thus precludes recovery of those damages.
Rule 84: FORMS (include examples of proceedings – complaint, answer, etc)
Rule 11 Good Faith Basis for Claims: every pleading, written motion, or other paper must be signed by at least 1 attorney of record. Prohibits untruthful or baseless statements.
That attorney is responsible for content of anything they have signed (must be in good faith, etc). Applies to factual statements and legal arguments.
Rule 8(a) “General Rules of Pleading”: A pleading must contain… 1) a short and plain statement of the ground for jurisdiction; 2) a short and plain statement of the claim, showing the pleader is entitled to relief and; 3) demand for relief sought.
Rule 9(b): When pleading fraud or mistake, the Plaintiff must aver them with particularity. Malice/intent/knowledge and other conditions of the mind may still be averred generally.
too easy to allege and does substantial damage to the defendant’s reputation.
Rule 12: Defenses and objections. (a) = time to serve responsive pleadings; (b) = how to present defense; (c) = motion for judgment on pleadings; (e) = motion for more definite statement; (f) = motion to strike; (g) = joining motions; (h) = waiving/preserving certain defenses.
Rule 12(b)(6) – used to attack adequacy of the complaint.
8(a) Old Standard: Conley v. Gibson (1975): a complaint pleaded sufficient facts unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Swierkiewicz v. Sorema (2002): Swierkiewicz claimed discrimination based on age and national origin. Pleading stated his stats, that he was discriminated against due to bias against age/national origin. Discrimination complaint not required to satisfy heightened pleading standards of Rule 9(b), but standard pleading requirements of Rule 8. Must give fair notice of the basis for petitioner’s claims.
New Standard:
Bell Atlantic v. Twombly (2007): Class action antitrust suit. Bell Atlantic argued P’s didn’t adequately state claim – no law requires companies to compete with one another. Only illegal if there is a conspiracy, contract, or combination to ensure non-competition. It is a rational economic decision for each of these actors to choose not to compete. Not enough to have “conscious parallel action”, must show more than that. Parallel behavior is only circumstantial evidence and not evidence of an agreement. Conduct due to independent decisions or agreements are perfectly legal. No detailed factual allegations required, but obligation to provide “grounds” of his “entitlement to relief.” 2 prong standard:
The requirement of short and plain statement of facts requires more than labels and conclusions – a formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, do not suffice.
Complaint must state a plausible claim for relief – Factual allegations must be enough to raise a right to relief above the speculative level. Calls for enough facts to raise a reasonable expectation that discovery will reveal evidence. (Where the well-pleaded facts do not permit the court to infer “more than the mere possibility” of misconduct, the complaint has alleged – but not “shown” that the pleader is entitled to relief)
Erickson v. Pardus (2007): 2 weeks after Twombly. prisoner with Hep. C who wasn’t receiving medication filed a civil rights claim against the prison claiming deliberate withholding of medication. Pleading very simple. Specific facts not necessary, plaintiff gave defendant fair notice of what the claim is and the grounds upon which it rests. Judge must accept as true all of the factual allegations contained in the complaint. Many attorneys were thinking perhaps the Twombly standard only applied to antitrust cases
Ashcroft v. Iqbal (2009): Terror suspect Javaid Iqbal claims he was deprived of constitutional protections while in federal custody post-9/11. Classified by the FBI as a “high-interest” detainee, held under isolation 23 hrs/day in maximum security prison. Iqbal alleged Biven complaint that Ashcroft and other senior officials individually designated him as high-interest due to discrimination based on religion and nationality. Under Bivens, P must show that each government official had violated the Constitution through their own actions. Must have taken action with purpose of (not inspite of) discriminating. Iqbal’s allegations that Ashcroft was acting with bias, motivated by discrimination, etc, are merely conclusory statements of law. Allegations behind purpose of the high-interest designation (discrimination) are not plausible. There is also a clear and obvious alternative explanation for defendant’s actions.
Conclusory allegations

pleadings – pleadings are closed and based on pleadings as a whole (complaint and answer), you are entitled to relief as a matter of law. There is no factual dispute and movant is entitled to a judgment as a matter of law.
Very rare! But if D has failed to deny properly or admitted something, P can request b/c there’s no dispute.
Rule 12(e) Motion for a More Definite Statement – complaint is so vague or ambiguous that D cannot reasonably prepare a response.
Rule 12(f) Motion to Strike – if a pleading needlessly includes information that is clearly false, non-germane, or defamatory. If it includes information that is false/scandalous and unrelated to the subject matter.
Rule 12(h): If you don’t raise the response in the initial response to the complaint, they are waived and may not be raised subsequently (such as 12(b)(5) defenses). Some Rule 12 defenses are mandatorily assertable in the answer, some will be waived, and some cannot.
Note: 12(b)(1) subject matter jurisdiction never can be waived.
Process: Complaint must be filed with the court (complaint) and served to defendants (summons). Complaint + Summons = Process. (See p. 460-461 for more details on service requirements)
Rule 15(a) Leave to Amend allows a party to amend his pleading “only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires”
Rule 15(a) gives absolute right to amend without court’s permission within a certain timeframe. (typically 21 days after service or response) – see p. 496 for more
Beeck v. Aquaslide N Drive Corp (1977): Beeck was injured on a water slide. Acquaslide initially admitted to manufacturing slide – their insurer and 3 others determined it was manuractured by Acquaslide. Initial Answer filed Dec. 1973, Statute of Limitations passed Dec. 1974, President & CEO of Acquaslide inspected site and determined it was not manufactured by their company about 6 months later. Trial Court decision and standard of review is abuse of discretion – must demonstrate evidence of bad faith, prejudice and undue delay.
No bad faith on part of D: D relied on conclusions of 3 separate insurance investigators
No prejudice: D still had opportunity to prevail on a trial on the factual issue of the manufacturer of the slide
Even if this is not their product, this is not the death knell of the case because there may be other avenues P could pursue against other parties. (fraudulent manufacture of supposed aquaslide, etc)