Select Page

Civil Procedure II
Temple University School of Law
Greenspan, Norman E.

Civ Pro II Outline
Professor Greenspan
 
Pleading: the Complaint and Answer; Supplemental Jurisdiction; and Preliminary Injunctions.
Rule 11- puts burden on lawyer (not client) to have taken some amount of effort before you go ahead and file something in court.
Rule 8- General Rules of Pleading- (Notice Pleading is the current standard)
1)       R.8(a)(Claims for relief)The complaint should (in addition to identifying the parties) contain;
a)       1. statement of the basis for the court’s subject matter jurisdiction; (why is the case in fed. court?)
b)       2. Plaintiff’s claim must be set forth
c)       3. The relief that Plaintiff seeks must be demanded. (injunction, damages, etc.)
i)        Can include defenses to the validity of the claim
2)       R.8(b)(Defenses; Form of Denials) The Answer;
a)       State party’s defense to each claim asserted.
b)       Deny, admit or plead insufficient information, to each averment of opposing claim
c)       R.8(c)- state any applicable affirmative defenses.
i)         If not plead by a certain point, they are waived (these are in rule 12).
(1)     R.12(h)- waiver or preservation of certain defenses.
ii)       R.11- The pleadings must be signed by Defendant or Defendant’s lawyers. R.11(a) Must have a good faith basis to believe one of the affirmative defenses is valid. R.11(b)
d)       Pleading may contain a counterclaim: Counterclaim is part of the answer
3)       R.8(e)(1)- each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required.
4)       Sufficiency of the Complaint under R.8- Motion to dismiss-12b(6) failure to state a claim upon which relief can be granted.
a)       Conley v. Gibson: Complain shouldn’t be dismissed for failure to state a claim unless it appears beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief. All rules require is short and plain statement of claim that will give D fair notice of what P’s claim is and grounds upon which it rests.
i)        Notice pleading is made possible by liberal opportunity for discovery and other pretrial procedures
b)       Swierkiewicz v. Sorema: Discrimination case. Didn’t have to plead facts sufficient to demonstrate a prima facie claim. Prima facie standard is an evidentiary standard not a pleading standard. Notice pleading only requires enough to give notice of basis of the claim. Fraud is an exception that must be plead with specificity. R.9(b)
c)       Bell Atlantic Corp. v. Twombly: Antitrust claim, alleged that D’s parallel conduct was circumstantial evidence of a conspiracy. Because parallel conduct is ambiguous, there must be more facts suggesting an agreement. Evidence must be plausible that the parallel conduct was out of a contract.
i)         What is plausible? Can this case be distinguished from Swierkiwicz? It seems to set antitrust law out from other claims.
Rule 11: Sanctions
1)       R.11(a) Signature requirement: Every pleading, written motion, and other paper shall be signed by at least one attorney. 
2)       R.11(b): It certifies the information contained was formed after an inquiry reasonable under the circumstances-
a)       (1) not being presented for any improper purpose (such as to harass or to cause unnecessary delay or needless increase in the cost of litigation);
b)       (2) claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
c)       (3) allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery and;
d)       (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
3)       R.11(c): Sanctions: Motions for sanctions must be made separately R.11(c)(1)(A)
a)       Gives opposing party an opportunity to clean up its act. (21 days)
i)        If you aren’t doing what you’re supposed to do and if there is a successful motion, the lawyer is sanctioned and has to pay the other side’s legal fees.
b)       R.11(c)(1)(B): Court may make motion on its own initiative.
c)       R.11(c)(2): Nature of Sanction; limitations- There are certain goals of the sanction to determine how much it should be (whether it will deter lawyer, deter similarly situated lawyers, whether the violation was deliberate)
i)        Monetary sanctions may not be awarded on court’s initiative unless court issues its order to show cause before a voluntary dismissal or settlement o f the claims made by or against the party which is, or whose attorneys are, to be sanctioned.
d)       R.11(c)(3): When imposing sanctions, court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.
e)       R.11(d): Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of R.26-R.37.
Rule 12: Defenses and objections (when and how presented)
1)       The Motions in Rule 12 are directed solely at the pleadings
2)       Court is required to assume all the facts asserted are true for purposes of determining the sufficiency of the pleading.
a)       Affidavits sometimes accompany complaint but may not be necessary.
3)       High threshold to be thrown out (no set of facts …) Client is generally entitled to day in court.
4)       Once motion is filed, there is an opportunity (before the response) for pleader to replead without permission of the court.
R.1367: Supplemental Jurisdiction
If plaintiff asserts a non-qualifying claim in conjunction with a separate claim that does fall within the original jurisdiction of the federal courts, it’s possible that a federal court will be able to assert supplemental jurisdiction over the non-qualifying claims. Court has discretion of whether to grant supplemental jurisdiction.
1)       United Mine Workers of America v. Gibbs: state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also found in a substantial claim based on federal law; based on common nucleus of operative fact
2)       R.1367(a): provides for supplemental jurisdiction over all claims that form part of the same Article II case or controversy. (incorporates Gibbs “common nucleus operative fact” standard)
a)       If second claim is closely related to the original claim that they form part of the same constitutional case or controversy, then it would be inefficient to have P file that claim separately in state court.
3)       R.1367(b) doesn’t allow circumventing diversity jurisdiction requirement for cases premised on diversity (1332).- 3 parts.
a)       first portion: identifies the categories of cases in which its remaining provisions will be a consideration. 1367(b) only applies to civil actions in which original jurisdiction is based solely on section 1332
b)       second portion: identifies a set of claims by Ps that don’t qualify for supplemental jurisdiction in the context of a case where original jurisdiction is based solely on diversity jurisdiction.
c)       Third portion: sets forth other types of claims that will not qualify for supplemental jurisdiction in diversity-only cases.
i)         Disqualified claims are: Rule 19 P’s and Rule 24 P’s.
4)       1367(c): Court may decline to exercise supplemental jurisdiction over a claim if-
a)       claim raises a novel o r complex issue of State law.
b)       Claim substantially predominates over the claim or claims over which court has original jurisdiction.
c)       Court has dismissed all claims over which it has original jurisdiction, or
d)       In exceptional circumstances, there are other compelling reasons for declining jurisdiction.
Rule 65: Injunctions
Interim Injunctive relief: In equitable relief context, the P’s concern is preserving the status quo during the litigation so that the ultimate judgment is not rendered moot by the D’s intervening harmful conduct.
1)       R.65(b) Temporary Restraining Order (insufficient time to deal with this in court in time to prevent some serious harm to plaintiff)
a)       May be issued without notice to adversary whom TRO will bind.
b)       Issued to preserve status quo pending consideration of a preliminary injunction. 
c)       Requires party seeking TRO to demonstrate a likelihood of immediate, irreparable harm that will result if TRO is not issued, coupled with an explanation as to why prior notice to adversary should not be required.
d)       Plaintiff is required to provide security (i.e. a bond) in case party found to have been wrongfully enjoined or restrained
2)       Preliminary injunction (may only be issued after notice to Defendant). Preserves status quo pending a full trial on the merits in the underlying dispute
a)       Schrank v. Bliss: To get a preliminary injunction, requesting party must demonstrate;
i)        irreparable injury because of the unavailability of an adequate remedy at law (i.e. money damages)
(1)     substantial likelihood of the Plaintiff’s success on the merits
(2)     Threatened injury to the P outweighs any possible injury to D
(3)     Issuing a preliminary injunction will not work any disservice to the public interest.
Rule 26: General Provisions Governing Discovery; Duty of Disclosure
–          Used to narrow the issues of dispute in the case.
–          Allows for economic use of court’s time.
–          Discovery used to encourage settlements.
–          Used for developing factual predicates for claims and defenses (support legal theory).
o    Flesh out other side’s theory of the case.
–          Used to establish the factual predicate for dispositive motions.
1)       R.26(a)(1): Initial disclosures: must provide;
a)       Name and, if known, address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defense, unless solely for impeachment, identifying the subjects o

review to determine if there was crime fraud waiver. (that’s what IRS wanted judge to do)
(1)     Rule 104a- you can have preliminary hearing in order to evaluate admissibility of something. At that hearing, rules of evidence don’t apply, but privileges do apply.
(2)     Not going to have an absolute bar. Leave discretion to court about what exactly it will consider in deciding whether to review in camera. Then review will be abuse of discretion.
(3)     There needs to be a factual showing sufficient to raise a reasonable belief that privilege is terminated. (the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person,” that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.)
iv)     In re grand jury investigation v. Corporation: Issue: whether district court was correct in refusing to view claimed privileged documents in camera? Holding: yes.
(1)     Reasoning:
(a)     To meet burden to show attorney-client privilege, a party must demonstrate that its documents adhere to the essential elements of the attorney-client privilege adopted by this court.
(b)     In essence, the party asserting the privilege must make a prima facie showing that the privilege protects the information the party intends to withhold.
(c)This can be satisfied with a privilege log.
(d)     Log should generally show: a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated
(e)In camera review is appropriate as long as the showing supports a reasonable belief “that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.”
(f)Although in camera review of documents does not destroy the attorney- client privilege, it is an intrusion which must be justified- Court can’t automatically review documents in camera.
(g)     Ziolin crime-fraud standard applies when there is a dispute as to the validity of an asserted privilege.
c)        Expert witnesses
i)        Only the testifying expert needs to be disclosed.
ii)      Don’t have to disclose crappy answers from expert who won’t testify.
7)       Protective Orders
a)       protective orders are appropriate when the court determines that discovery request seeks info that lies beyond the scope of discovery under 26(b)(1)
b)       appropriate to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
8)       Discovery from Non-Parties
a)       The mechanisms for obtaining info from non-parties are more limited under the Rules because not all of the discovery mechanisms are applicable to non-parties.
b)       i.e. rules providing for interrogatories and physical examinations may not be used to obtain info from non-parties.
c)       Rule 45 Permits non-parties to be subjected to deposition and document inspection via subpoenas.
i)        When discovery sought from non-parties, requesting parties are under an affirmative obligation not to impose “undue burden or expense” on the responding nonparty.
9)       Limits on the Scope of Discovery- Burden and proportionality limits generally
a)       26(b)(2)(C) enable court to limit discovery if the court finds that the discovery is too burdensome in relation to its utility to the litigation.
b)       Discovery of info whose cost and burden far outweigh the contribution the info can make to the case need not be permitted.
c)       APPLIED TO THIRD PARTIES (Rule 45) Gonzales v. Google, Inc. Issue: whether motion to compel against non-party should be upheld. Holding: Yes.
i)        Reasoning: Rule 45 governs discovery of nonparties by subpoena.
(1)     Scope of discovery under 45 is the same as specified in Rule 26(b)
(2)     Rule 26 specifies that all discovery is subject to limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).