Civil Procedure II Outline

Civil Procedure II – Strickland – Spring 2012
 
1/9/12
 
§ 1 Pleading
 
I.                    Historical Development of Pleading Systems
           
A.      Common Law Pleading
1.      Writs and Forms of Action
2.      Response Pleading
a.       Dilatory Pleas (technical objection, i.e. lack of PJ)
b.      Preemptory Pleas (common law – had to choose one)
1)     Demurrer – admit facts but contest legal sufficiency
2)     Traverse – admit legal sufficiency but contest facts
3)     Confession and Avoidance – admit facts and legal sufficiency – but offer affirmative defense
           
–          Pros of common law pleading – gave notice to defendant, narrowed the issue by pleading back and forth
–          Cons – gave courts little idea what the facts were, overzealous in weeding out frivolous claims (tossed out meritorious claims along with unmeritorious claims)
 
B.      Code (“Fact”) Pleading – some states still use
–          Abolished the forms of action and emphasized the pleading of facts
–          “A statement of facts constituting the cause of action, in ordinary and concise language”
–          How much detail to include? à somewhere between evidentiary facts and ultimate (conclusory) facts
             
C.      FRCP “Notice” Pleading – majority of states have adopted – pleading to provide notice to the parties of the claims and defenses in the case
 
II.                  Modern Notice Pleading
 
A.      General Substantive Rules
1.      Rule 7 – addresses pleadings more generally
2.      Rule 8(a) – Claims for Relief – addresses content of pleading
a.       Statement of SMJ – peculiar to federal courts
b.      Statement of the Claim – core of complaint
c.       Demand for Judgment
3.      Rule 8(d) – not requiring any technical forms – party may state as many separate claims or defenses as it has, regardless of consistency
           
B.      Form of the Complaint (Haddle v. Garrison sample) – see slides
 
C.      Substance of the Complaint
1.      FRCP 8(a)(2) – Claim for Relief
–          “A short and plain statement of the claim showing that the pleader is entitled to relief.”
2.      Requires a claim to:
–          Invoke a body of substantive law
–          Articulate a factual scenario that falls within that body of law
–          How much detail? Not very much – hash out details later – just put defendant on notice as to what the claim is
3.      Conley v. Gibson (US 1957)
–          Complaint need only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
–          “A complaint should not be dismissed 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.”
–          Standard by which we measure sufficiency of the complaint
4.      Swierkiewicz v. Sorema N.A. (US 2002)
–          Prima Facie Case
1.      Membership in a protected group (Hungarian)
2.      Qualification for the job (experienced)
3.      Adverse employment action (demoted, fired)
4.      Circumstances that support an inference of discrimination (court doesn’t find this)
 
            1/11/12
 
Swierkiewicz v. Sorema
 
–          Court found that the complaint need only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” (Conley)
–          In the four elements of prima facie case, the first three will almost always be true in employment discrimination suits – for the employer, it is probably cheaper going forward to just settle for a lesser amount than proceed with litigation
–          Swierkiewicz had the opportunity to amend his complaint – but didn’t have access to additional facts that would suggest discrimination
 
–          Strategy – complaint provides a roadmap for the trial, so it is useful to include all legal theories in the complaint  – also, a well-drafted and clearly written complaint may give you a leg up with the judge
–          But do you want to give the defendant all the legal theories you are going to bring up in court? à Doesn’t really matter because it’s going to come up in discovery anyway
 
Bell Atlantic Corp. v. Twombly (US 2007)
 
–          AT&T was at one time basically a nationwide monopoly in phone service
–           ILECs – regional phone companies – monopolies in their regions – Congress withdrew approval of ILEC monopolies by enacting the Telecommunications Act of 1996 – required ILEC’s to share their networks with CLEC’s and facilitate market entry
–          ILECs – Bell South/Bell Atlantic – didn’t try to compete with one another and engaged in business practices in such a way as to exclude others from entering the market – but was this an agreement or coincidence?
 
–          Elements of Sherman Act (Antitrust) Claim
·         Agreement or conspiracy
·         To restrain trade (competition)
–          Require:
·         Plausible (factual) grounds from which one might infer the elements of the claim
–          Trial court dismissed the complaint on the grounds that parallel conduct, by itself, is not sufficient evidence from which a jury could conclude that there was an agreement – Court of Appeals reversed and found the complaint to be sufficient, holding that “plus factors are not required to be pleaded to permit an antitrust claim based on parallel conduct to survive dismissal.”
–          Supreme Court – reversed Court of Appeals decision and found that complaint was insufficient because the plaintiffs have not nudged their claims across the line from conceivable to plausible – must allege a FACT from which the court could infer all elements of the claim – can’t just make a conclusory statement
–          Radically different from Swierkiewicz, but perhaps the court is just carving out a different set of rules for antitrust claims because discovery is so expensive and the elements are so hard to prove – any idiot could allege conspiracy and collect a large settlement if the defendant corporation wanted to avoid litigation costs
 
Ashcroft v. Iqbal (US 2009)
 
Elements of Cause of Action (Equal Protection)
–          Defendant detained plaintiff and subjected him to harsh conditions
–          On account of race, religion, or national origin
Require:
–          Accept all alleged facts as true (but not bare conclusions)
–          Those “facts” must render all elements of the claim “plausible”
 
–          Iqbal was detained – fact – for pleading purposes, assume this is true
–          Iqbal was detained due to his race, religion or national origin – conclusion – not assumed to be true
 
–          Fairly radical change – raises the level of specificity needed for a complaint to be sufficient – but a lot of times these facts aren’t known to the plaintiff and wouldn’t come out until discovery
–          When an attorney signs a complaint, they are certifying that there is evidence suggesting every fact alleged in the complaint
 
–          Twombly and Iqbal changed the requirements of pleading via judge-made decisions – FRCP Rule 8 hasn’t changed
–          Requirements of pleading have been swinging back and forth – no good answer to the problem because there are valid arguments and good reasons for requiring high and low levels of specificity à high level – weed out unmeritorious claims quickly à low level – get the ball rolling efficiently and allow meritorious claims in which plaintiff’s don’t have access to significant facts
 
1/17/12
 
Review: Twombly and Iqbal raised the standard for pleading (must be a factual allegation from which one could infer that the elements of the cause of action are plausible) – still isn’t completely clear on how much detail is required
 
III.               Commencing the Action
 
A.      Filing the Complaint [Rule 3] –          “A civil action is commenced by filing a complaint with the court.”
           
B.      The Summons [Rule 4(a) & (b) & Form 1] –          Issued by the court upon the filing of complaint – notifies defendant that they have been sued and must appear or a default judgment will be made against them
–          Summons and complaint