Civil Procedure II Outline Spring 2014
FRCP 7. PLEADINGS ALLOWED; FORM OF MOTIONS AND OTHER PAPERS – you have to respond to a counterclaim.
Haddle v. Garrison (FACTS: Haddle alleges conspiracy and injury to his person or property, the text of the statute requires injury
to person or property, at-will employment is not constitutionally protected. SCOTUS says even though it’s not constitutionally protected property, it is protected under tort law, and therefore this property is protected under 42 USC 1985. Congress didn’t mean
constitutionally protected, just protected in general. Therefore, it overcomes the 12(b)(6) ).
FRCP 8. GENERAL RULES OF PLEADING
OLD STANDARD – notice pleading – Conley v. Gibson – “no set of facts” in support of the claim results in dismissal, you had to put the D on notice as to what the case was about.
POLICY BEHIND CHANGE – complaints were rarely dismissed for failure to state a claim, so cases would proceed into Discovery which is very costly. Then many cases did not find support in the facts from discovery so there were a lot of wasted resources.
CURRENT PLAUSIBILITY STANDARD – HINT: legal/conclusory can be suggested if the language of the claim tracks the language of the statute
Twombley Case – retires Conley interpretation and formulates new standard – must state a claim that is plausible on its face.
Ashcroft v. Iqbal (FACTS: Iqbal claimed he was being discriminated against in the wake of 9/11. Court held there was no evidence of any discriminatory conduct on the part of the attorney general contained in the pleading that would allow the claim to go forward)
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” – you must do more than state the elements of the claim; you must allege enough facts
The court expanded on the Twombly ruling by developing a two-pronged test:
1. The court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions; and
a. Ex. Dodge Hypo – at 4pm on that date a car owned and operated by the defendant negligently collided
b. Be careful w/ something like this b/c you need to argue whether or not it is a legal conclusion
2. Only a complaint that states a plausible claim for relief survives a motion to dismiss.
Note: Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.
The “no set of facts” rule has earned its retirement. Now the claim must state a claim that is plausible on its face. “The plausibility standard”
POLICY: when you’re arguing for the side trying to get the complaint through; we want to allow parties to get to discovery so we can see what the complaint shows and then if there’s no facts, the proper mechanism is 12(b)(6). The other side will say you have to do some kind of minimal research before you bring a lawsuit
Special Cases: Requiring and Forbidding Specificity in Pleading
Stradford v. Zurich Insurance Co. (FACTS: dentist’s insurance claim. Insurance company in counter-claim said dentist lied, but failed to identify the lie; therefore the court ruled that the insurance company’s claim is insufficient under FRCP 9(b)
· Some kinds of claims are subject to a higher standard of pleading than the plausibility standard. Stradford is a good example.
· Primary purpose of FRCP 9(b) is to afford the litigant accused of fraud “fair notice” of the claim and the factual ground upon which it is based.
o The rule makers singled out fraud, mistake, etc. in Rule 9 because punitive damages are a remedy for those specific causes of action and they expose the person to excess based on malicious intent.
o Malice, Intent, knowledge, and other conditions of a person’s mind may be alleged generally.
FRCP 9. PLEADING SPECIAL MATTERS
Allocating the Elements of a Claim – FRCP 8(c) – P: claim; elements, facts. D:Denials, affirmative defenses (statute of limitations is an affirmative defense under R.8(c) that the D must plead.
Jones v. Bock (FACTS: fight over who was going to have the burden of proof in the event that case came to trial; who has to plead exhaustion of administrative remedies? The court decided that D should as an affirmative defense).
· Whoever is pleading the affirmative defense has the burden of proof at trial
· This case illustrates that it is always defendant’s job to raise affirmative defenses—exhaustion in this case—and it is not the plaintiff’s job to anticipate what defendant’s defenses will be.
· Regardless of policy concerns, there is a usual practice established by FRCP. Any changes should be made through the legislature and not on a case-by-case basis. In other words, specific pleading requirements are mandated by FRCP, and not, as a general rule, through case-by-case determinations of the federal courts.
· Difference between Twiqbal and this case is that in Twiqbal, the court was interpreting rule 8(a)(2). In Jones v. Bock, the court would have to make an actual change to FRCP.
· FRCP 8(c) lists affirmative defenses
ETHICAL LIMITATIONS IN PLEADING – AND IN LITIGATION GENERALLY
Ethical Limits: Sanctions à Rule 11 embodies ethical standards.
Rule 11(b) – standards required to avoid sanctions (if it doesn’t meet the standards, then you can file for sanctions under c)
Rule 11(c) – when you can file for sanctions
· Procedure – FRCP 11(c)(2)
· Violation – FRCP 11(b)(1)-(4) à the lawyer, not the plaintiff, bears the responsibility for making these allegations
o 2-Pronged Test 11(b)(3):
§ (1) Did party make a factual contention that did not have evidentiary support; and
§ (2) Did he nevertheless make a reasonable inquiry?
o Note: the client can be responsible for factual allegations that the attorney puts in the complaint.
· Who may be sanctioned? Any written motion that any attorney, law firm, or party violates the rule can be sanctioned. FRCP 11(c)(1)
· Nature of Sanction – what form should the sanction take? FRCP 11(c)(4)
Walker v. Norwest Corp.
This case deals primarily with ignorance of well-established law.
Plaintiff’s attorney filed a complaint in federal court against Defendants. The complaint stated that jurisdiction was based on partial diversity (note: this is a legal contention that is unwarranted, there is no such thing as partial diversity. See FRCP 11(b)(2), which this attorney violated); however, statements in the complaint itself pleaded facts tending to show a lack of complete diversity.
An award of monetary sanctions pursuant to FRCP 11 is proper where an attorney has filed a defective complaint without subsequently amending or dismissing the complaint.
Plaintiff’s attorney violated FRCP 11(b)(2) and the sanctions were proper.
Christian v. Mattell, Inc.
This case deals with probably the most common Rule 11 violation which involves the failure to conduct adequate factual inve
int, exhibits attached to the complaint, and any matters subject to judicial notice.
o Rule 12(c) – Motion for Judgment on the Pleadings
o After pleadings are closed – party can move for judgment on pleadings. Allows the court to dispose of a case when the material facts are not in dispute and a judgment on the merits can be achieved based on the content of the pleadings.
o Made after the answer is filed.
o Rule 12(e) – Motion for a More Definite Statement
o If a claim for relief is so vague or ambiguous that a party cannot reasonably draft a responsive pleading, they can move for a more definite statement.
o Motion must specify the defects in the pleading, and the details sought by the party making motion.
o Standard
§ Courts are generally reluctant to grant them b/c discovery is available to get more info.
§ Whether the pleading provides enough info from which the responding party can draft a responsive pleading and commence discovery.
§ It may be appropriate when pleader fails to allege facts required to be specifically pleaded, such as allegations of fraud or mistake under Rule 9(b)
o Must be made before filing a responsive pleading. The court may strike a failure to respond to such a motion w/in 14 days.
o Rule 12(f) – Motion to Strike
o If pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, the court (upon motion or its own initiative) may order that such a defense or material be stricken.
o Responding party must move to strike prior to responding to such a pleading. When no responsive pleading is permitted, the party must make a motion to strike w/in 21 days after service.
Amendments to Pleadings
FRCP 15. AMENDED AND SUPPLEMENTAL PLEADINGS
(a)(1) – 21 days (after filing, or after receiving answer)
(a)(2) – written consent or leave of court
A. The Basic Problem: Prejudice
· Beeck v. Aquaslide ‘N’ Dive Corp. (FACTS: auaslide relied on 3 insurance investigators to decide that it was an Aquaslide product when it admitted it manufactured it, but then it was determined that it was NOT an aquaslide b/c it was a pirated design. Court allowed Aquaslide to amend even though SoL had run on P’s personal injury claim. Court said no prejudice b/c they could still proceed against other parties involved in the chain of distribution of the slide).
o FRCP 15(a)(2) a party may amend its pleadings in civil actions only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. (or w/in 21 days – FRCP 15(a)(1))
§ Courts have read this phrase to mean:
· 1. That the would-be amender should have a good reason for not getting the pleading right the first time; and
· 2. That allowing the change now should not hurt the other side too much. This latter requirement is often captured in the not very eliminating word, “prejudice.”
