CIVIL PROCEDURE
PETERS
FALL 2013
INTRODUCTION
I. Purpose of FRCP: govern procedure in all civil actions & proceedings in US District Courts; should be construed and administered to secure the just, speedy, and inexpensive determination of every action
II. Progression of a lawsuit
a. Pleadings (complaint, answer, reply) paint a broad picture of P’s claim & D’s responses
i. Claims, Defenses, Affirmative Defenses, Amendments
ii. Goal: give notice to D about P’s claim & give notice to P about D’s defenses/arguments
b. P files a complaint to start the law suit
c. D will likely begin by filing a motion to dismiss under Rule (12)(b)(6)
i. Saves D the trouble of an answer if he succeeds
ii. Gets ride of the case quickly & cheaply before discovery
d. If court denies D’s motion to dismiss, D must answer
i. D may also choose to concurrently file a motion for judgment on the pleadings under Rule 12(c)
ii. D may also choose to concurrently lob a counterclaim against P, in which case P must reply
e. P & D may JOIN other parties &/or claims that are (usually) related to original claim
i. Efficient – one lawsuit can resolve multiple or unrelated clams
ii. Class Actions are a popular way of joining several Ps together against a common D for a common claim
f. P & D must then meet to work out a schedule for discovery & methods of production
g. During discovery, both P & D will likely wish to amend their original complain or answer since new info will be available
h. At the end of the day, both P & D will likely move for summary judgment
GUIDING PRINCIPLES
I. Rule 11 – signing pleadings, motions, other docs, representation to court, sanctions
a. Attorneys MUST perform reasonable inquiries under the circumstances
b. Attorneys seeking sanctions must serve opposing counsel, who has 21 days to correct problems
i. Called the Safe Harbor Provision [11(c)(2)]
ii. If they aren’t fixed in 21 days, then you file them in Court
c. Parties or court may seek sanctions, provided proper notice is given [11(c)]
d. No sanctions for other conduct outside written pleadings & papers [Christian v. Mattel]
e. Sanctions can be imposed if 11(b) is violated [11(c)(1)] (lawyer must affirm, the best of his knowledge that all information presented/given to court is not presented for improper purpose; all claims/defenses/contentions are warranted, law suit is not frivolous; all factual contentions have or will have evidentiary support; denials are warranted on evidence or on a reasonable belief – BASICALLY FOR LYING)
i. Bottom line – Lawyers MUST do their factual & legal hw
f. Can include written apologies, remedial classes, monetary fines, charges of contempt, dismissal (w/ or w/o prejudice)
g. All sanctions must be limited to what can deter lawyer from repeating his conduct [11(4)]
II. Rule 1 – just, speedy, and inexpensive determination of ever trial
III. Fair notice to parties about claims & defenses
IV. Efficient litigation (combining parties&claims where possible) to save everyone time & $
LITIGATION
I. Background investigation (facts & law)
a. This is guided by Rule 11 (try to avoid sanctions) and Rule 12 (avoid motion to dismiss)
b. Good faith efforts to correct mistakes that can prevent sanctions but still may result in dismissal
II. P’s Complaint – Pleading
a. Complaint gives notice to D that he is being sued [Rule 4]
b. Must be served on opposing party/counsel
c. Rule 8(a): (1) complaint must include jurisdiction, (2) short & plain statement of claim showing pleader is entitled to relief, & (3) request for relief sought – SEE IF COMPLAINT SETS OUT CORE COMPONENTS
d. Facts in complaint that Courts look at:
i. Sorema à
1. Employment discrimination complaint need not include facts establishing prima facie case of discrimination
2. Must contain short plain statement of claim showing pleader is entitled to relief
3. “Prima facie” evidentiary standard for trial, not pleading
4. Allegations in complaint taken as true, even though doubtful in fact
ii. Bell Atlantic v. Tombly à P engaged in parallel conduct by not competing with current ILECs and making it harder for new communication companies to start up
1. New legal standard (also in Iqbal) à Complaint must have enough facts (taken as true) to suggest valid claim arises, but must also be plausible – Case can succeed even if savvy judge thinks actual proof is improbable
2. Facts asserted must raise a reasonable expectation that discovery will reveal evidence***
3. Gets ride of Conley’s “no set of facts” – now read as any statement revealing theory of the claim will suffice unless it’s factually impossible
4. Allegation of parallel conduct & bare assertion of conspiracy not enough – Need further factual enhancement or it stops short of the line between possibility and plausibility
5. Court wanted evidence of actual agreement amongst companies to stifle competition (i.e. dates when CEO companies met)
iii. Specific facts are not necessary – statement should give D fair notice of what claim is AND grounds it rests [Erickson v. Pardus]
iv. Twombly pleading standard extends to all civil cases [Ashcroft v. Iqbal]
v. An amendment to the ad damnum clause should be allowed unless it changes the required “quantum” of proving a material fact or there is a good reason shown why it should not be amende [applies to Rule 8(a)(3) from Bail v. Cunningham Bros Inc]
e. TEST TO USE WHEN SEEING IF COMPLAINT IS SATISFACTORY: Do alleged facts show enough facts for a reasonable expectation that discovery will reveal supporting evidence to make out a claim? [Iqbal]
i. First, weed out the conclusory allegations & legal conclusions – they are not credited as true
ii. Second, does the complaint contain sufficient factual matter that, when accepted as true, allows the judge to draw a reasonable inference that D is liable for conduct alleged (basically showing that it’s plausible on its face)?
1. Should be one idea per paragraph – careful, organized pleadings lead to better answers
iii. Legal plausibility + factual plausibility – To survive a motion to dismiss, the complaint must present a story “plausible” enough to convince a judge that the plaintiff actually stands a reasonable chance of proving the claims asserted in the complaint
f. Heightened pleading – Rule 9:
spensable party – ANY TIME
ii. If party files for motion to dismiss BEFORE they answer, then they file it under 12(b); if filed AFTER the answer or IN an answer, then file it again under 12(c)
1. If court denies D’s motion to dismiss under 12(b), the D MUST answer
2. If complaint is deficient and dismissed due to lack of important facts, D could fix matters with an amendment before court applies motion
3. In the answer or after they answer they can file for motion to dismiss again under 12(c)
iii. 12(b)(6) a favorite for D’s b/c it could end some or all of the case, which saves time & money
1. Dismissal for Failure to State a claim [12(b)(6)]: Granted where even if court accepts all facts plead by P are true, there is no legally cognizable claim or not reasonably or factually plausible
2. Different types of 12(b)(6) arguments, such as (1) SOL, (2) no facts supporting key element of legal claim (showing legal claim isn’t reasonably factually plausible, (3) no such recognizable claim under applicable law (4) barred from making claim such as sovereign immunity
c. Motion for Judgment on the pleadings [Rule 56] – After pleadings are closed but w/in such a time as not to delay trial, any party may move for judgment on the pleadings. If motion matters, motion shall be treated as one for summary judgment
d. Answers [Rule 8(b) & 8(c)]– if court denies MTD (or if D never moved), D must respond to complain with an answer; Also when affirmative defenses & counterclaims are made
i. Purpose of Answers
1. Answers respond to each & every allegation of the complaint – letting P know its position
2. It sets up case for discovery
3. Sets forth affirmative defenses and defenses
4. An ineffective denial can be converted into an admission if denial is misleading in a way that prejudices P and would not D too much
ii. Denials [Rule 8b]
1. Must put admit/deny/lack of information to form opinion as to truth (operates as a denial see Rule 8(b)(1)-(5)])
2. If answered ineffectively, this could impact how answer is read and can be construed as an admission, see Rule 8(b)(6) [Zielinski – In Answer, D stated that they “denied paragraph 5.” While it was factually true, court held Ds should’ve been more specific & said they leased the forklift to another company so P would’ve known he was suing the wrong person.]
3. Ds can and probably should include a catch all denial at end of their specific answers to each & every paragraph in P’s complaints – as a way to avoid an unintended admission, which is the effect of failing to deny an admission [Rule 8(b)(6)]
4. Shall specify if party only denies a part of an averment & shall specify so much of it as is true & material
5. [(b)(6)] – Allegation is admitted if responsive pleading required
