CIVIL PROCEDURE
ELLIOT
FALL 2012
I. The Design of a Procedural System
A. Rule 1: Scope of FRCP covers all civil actions in United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
B. Rule 2: One form of action (no more law and equity distinction)
II. Determining Substantive Sufficiency of the Complaint
A. The Complaint
1. Elements: under 8(a)
a. Jurisdiction
b. “short and plain” statement of claim
i. Twiqbal
c. Demand for relief (damages, injunction, etc.)
2. Rule 3: A civil action is commenced by filing a complaint
a. (must be properly filed with court and served on Δ)
b. 12(b)(5) improper service, if not served properly
c. Default judgment (which are final judgments that can be appealed for lack of notice, etc.; can try to get set aside under rule 59(e); can say judgment is void because I was never served)
3. Rule 4 delineates the specific rules regarding the service of process
a. You have to show how you served person other than Δ
B. Rule 7(a) Pleadings that are allowed:
1. A complaint
2. Answer to complaint
3. Answer to counterclaim
4. Answer to crossclaim
5. Third-party complaint
6. Answer to third-party complaint
7. If court orders one, a reply to an answer
a. THUS, you cannot reply to an answer just because you feel like it!
C. Motions and other paper (Rule 7(b) declares requirements for motions; form of motions held to pleading form standards)
D. Rule 8(a) –
1. (1) must include a short and plain statement of jurisdiction
2. (2) must include a short and plain statement showing entitled to relief
3. (3) must include a demand for relief sought
4. Rule 8(b) – how you respond. Short and plain statements
a. 8b3 – general denials must be in good faith (like if there are specific things you should address do not give general denial—like what state you’re from for instance, you likely won’t deny)
b. 8b4 – can’t deny whole thing if only mean to deny part of it
c. 8b5 – can say don’t know, same effect as denial
d. 8b6 – anything you don’t address is deemed to be admitted
5. Rule 8(c) – affirmative defenses, burden on Δ to prove
6. Rule 8(d) – applies to all pleadings, be concise and direct
a. 8d2 – can make as many claims as have
b. 8d3 – claims can be inconsistent
7. facts agreed on in pleadings stipulated as true for trial, so can’t intro evidence on it, strategic admittances
E. Rule 9b – exceptions to general short and plain rule (fraud or mistake)
F. This exception to rule 8 does NOT apply to discrimination cases (under Swierkiewicz)
G. Rule 10-forms of pleadings
H. Rule 11—sanctions—claw marks J
III. Determining the Substantive Sufficiency of Complaint
A. Conley v. Gibson, 355 U.S. 41 (1957) “Conley conned the guys out of their jobs”
1. P.H.: District court granted Δ’s motion to dismiss claiming the court lacked subject matter jurisdiction. Court of Appeals affirmed D. Crt. (District court did not address the other two complaints: (1) that the plaintiff’s failed to join the railroad as a party and (2) that the complaint failed to state a claim upon which relief could be granted). S. Court decided it wanted to address whether the complaint failed to state a claim.
2. Facts: 45 jobs were discharged or demoted and filled by whites. Union did not protect them, despite repeated pleas
3. Issue: Whether Π failed to state a claim [12(b)(6)] upon which relief could be granted under Rule 8(a)(2)
4. Holding: Yes, Π’s complaint adequately set forth a claim upon which relief could be granted because a complaint is sufficient “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley reasserts rules’ requirement of merely a “short and plain statement of the claim,” saying no detailed facts supporting claim are necessary.
IV. Formal Sufficiency of Complaint (Specificity)
A. Swierkiewicz v Sorema, N.A.
1. Facts: Π, 53 yr. old Hungarian, worked for SOREMA. He was replaced by younger Frenchman; given two options resign or be fired. He was fired. He filed claim under Title VII
2. Issue: Whether a complaint alleging employment discrimination must include specific facts establishing complaint under FRCP 8(a)(2).
3. Holding: No, must only meet “short and plain statement of the claim” standard
4. 4 step test for discrimination (required by Court of Appeals): this relates to the employee’s buden of presenting evidence that raises an inference of discrimination.
a. member of a group that is identified as being discriminated against
b. qualified for position in question
c. adverse employment action
d. circumstances supporting inference of discrimination
5. HOWEVER, this test for establishing a prima facie case does NOT apply to pleadings standard in order to survive a motion to dismiss because that question is NOT question plaintiff will ultimately prevail rather whether plaintiff is entitled to offer evidence to support the claims –this conflicts with FRCP 8(a)(2)
6. The issue for a complaint is not whether the P will prevail bit whether the claimant is entitled to offer evidence to support the claims
7. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations
8. But then there’s TWIQBAL
B. Bell Atlantic v Twombly
1. Issue: Whether the complaint can survive a motion to dismiss when it alleges parallel conduct without some factual context suggesting agreement, as distinct from identical, independent action
2. What is required to survive 12(b)(6) motion to dismiss for failure to state a claim
3. Facts: Allege conspiracy of all phone and internet providers to raise prices. Could be conspiracy, but more probable they are just all reacting similarly and the result is parallel conduct.
4. Held: Plausible standard, not conceivable. It’s more probable they’re all just doing the same thing, not acting in concert together.
5. Conley – held all that’s required of pleading is adequate notice to Δ, unless very clear there is no set of facts Π can prove for this claim it goes forward. Conceivable standard
6. Complaints don’t need detailed factual allegations, but must be more than conclusions and a recitation of the elements of a cause of action (because only fact presumed true)
7. The old rule what that you assume facts are true in complaint, and construe claims in light most favorable to the plaintiff. Court seems to be backing off from this some.
8. The rule about a complaint shouldn’t be dismissed unless it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations has been misinterpreted to mean its ok unless the P’s theory is factually impossible
9. Explicitly says they do not seek to apply a heightened standard, nor do they intend to expand rule 9
10. Everyone thought maybe it was an antitrust thing, but then IQBAL
C. Ashcroft v Iqbal
1. Issue: Whether defendant, Iqbal, plead factual matter that, if taken as true, states a claim that plaintiffs, Ashcroft and Mueller, deprived him of his constitutional rights.
2. Holding: Defendant’s pleadings are insufficient.
3. Facts: Plaintiff (Iqbal), a Pakistani Muslim, was arrested and held in confinement for no reason other than his race, religion, and nationality
4. P.H.: District court denied the 12 (b)(6) motion of petitioners to dismiss the respondent’s complaint for failure to state sufficient allegations demonstrating their alleged unconstitutional conduct (of arrest and imprisonment).
a. U.S. Court of Appeals for the Second Circuit decided Twomby while the appeal was pending, which addressed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss.
b. U.S. Court of Appeals held respondent’s pleading adequate based upon Twombly’s “plausibility standard,” which requires a pleading to amplify a claim with some factual allegations to render that claim plausible, ruling that respondent’s allegations, if proven true, clearly violated constitutional law
5. Rationale:
a. There must be plausible facts to support a claim. A complaint does not suffice if it makes “naked assertions devoid of further factual enhancement”:
b. Respondent must plead sufficient factual matter demonstrating that petitioners’ purpose for the adoption and implementation of detention policies was discriminatory and not neutral in nature. Why did the policies exist? To discriminate or for another purpose?
c. But couldn’t discrimination take place during the implementation of the policy, even if, it was not adopted for the express purpose of discrimination? (i.e. employment cases)
d. The only factual allegations in respondent’s claim were (and these were deemed necessary to identifying “high interest” persons):
e. The FBI arrested and detained thousands of Arab, Muslim men
f. The policy of holding post 9/11 detainees in highly restrictive conditions of confinement was approved by Ashcroft and Meller
g. Only allegations of fact and not law (conclusory claims) are presumed true in a complaint to determine its validity.
h. The conclusory claims in this case are that petitioners “‘know of, condoned, and willfully and maliciously agreed to subject him’ to harsh conditions of confinement ‘as a matter of policy solely on account of his religion, race, and/or national origin and no legitimate penological interest'” (57). These are held inadequate as they amount to nothing more than a “formulaic recitation of the elements of a constitutional discrimination claim” (57).
6. Facts: Pakistani Muslim arrested after 9/11 claims constitutional rights violated while in custody.
7. Held: Not discrimination because it’s the intent and the result, not just the result that matters. Apply the test: once you ignore the legal conclusions, not much is left, and what is is not the most plausible explanation. Plausibility standard applies to all cases not just antirust.
8. Old Test:
a. accept allegations as true
b. evaluate conceivability
9. New Test:
a. ignore legal conclusions (rule to accept all allegations doesn’t apply to legal conclusions)
b. evalua
to arise out of same event as original
e. changing name of party – have to show Δ had notice or should have known that you made a mistake within 120 days. Not that the amendment was brought in the 120 days, but that the defendant had that knowledge within that time. Doesn’t matter how long after statute of limitations ran out the amendment was filed.
f. Tran
i. Holding: Π should NOT have been able to amend his complaint to add a RICO bribery claim when the claim did not truly “relate back” to his initial claim (regarding lost wages for overtime).
ii. Standard of review: should have been abuse of discretion (only changing decisions if clearly outside the scope of reasonable results); court used de novo (looking at the case as if new)
VIII. Policing the Pleading and Motions
A. Rule 11 sanctions: Rule 11 “to the best of your knowledge and belief reasonable under the circumstances”
1. Allows for some flexibility
2. Applies to pleadings, motions, and other papers (affidavits); not discovery
B. Patsy’s Brand
1. Facts: Δ clearly presented false evidence to court regarding its use of a pizza sauce label.
2. Holding: because counsel did not have an obj. reasonable basis to believe the truth of the facts they put into affidavit, Rule 11 sanctions appropriate, and should be imposed on the firm and not individual
C. In re Penne
1. Issue: Whether rule 11 sanction requires a mental state of bad faith or only obj. unreasonableness when the lawyer has no opportunity to withdraw or correct the challenged submission.
2. Holding: Court holds that a heightened standard for sua sponte Rule 11 sanctions should be imposed because the lawyer has no opportunity to withdraw or correct the challenged submission.
3. Did they hold a different (heightened) standard should apply to Rule 11 sanctions when the lawyer has no opportunity to remedy the problem?
4. Dissent: Under plain reading of Rule 11, procedural distinctions set forth have no bearing on the state of mind requirements. Are they saying no different standard should be applied?
D. Frantz
1. Holding: complaint was sanctionable because it was frivolous and it was filed w/out a prior, reasonable inquiry into the law
2. Rule: a complaint may be sufficient in form but sanctionable because counsel failed to conduct reasonable investigation before filing; rule 11 requires each claim to have sufficient support and be research before filing
3. Rule 11 does not require counsel to plead facts but know facts after conducting a reasonable investigation—and then only enough to make it reasonable to press litigation to the point of seeking discovery (“well grounded in fact”).
Discovery
IX. Scope and limits of discovery under Rule 26(b)(1):
A. Anything non-privileged relevant to any party’s claim or defense
B. Three fundamental limits: relevance, privilege, and proportionality
C. Relevant to what?
1. Rule 26(b)(1): “any parties claim or defense” (limited by Twiqbal as fewer claims sufficient to begin with; if I make a claim that is not plausible (judge will strike under 12-b-6), no discovery regarding that claim) OR
2. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.
a. Aubuchon v. Benefirst: Πs have met burden of establishing good cause for requiring benefirst to produce relevant information though not relevant to c/d. Π narrowed their initial request (this reduction should serve to reduce time and expense of retrieval)
b. Good cause considerations (advisory committee notes on good cause):
i. Specificity of request
ii. Quantity of info available from more easily accessed sources
iii. Info likely to have existed but no longer available on more easily accessed sources
iv. Likelihood of finding info that cannot be obtained from other more easily accessed sources
v. Predictions as to importance and usefulness of other info
vi. Importance of issues at stake in litigation
a) Central to issues at the case at hand (not over the globe)
b) Seems like their saying impactful elsewhere (maybe future cases)
vii. Parties’ resources (neutral factor)
