ISSUE
CIVIL PROCEDURE, BUNDY, FALL 2012
RULES/TESTS
Right to Attorney
Matthews v. Eldridge test, which considers the following factors:
§ Private interests at stake
× Interest in welfare and child (parental interests are normally strong interests)
§ Government interests (costs of adopting procedural protection)
× Interest in welfare of child
× Fairness, accurate, and justice
× Economic efficiency (not significant enough to overcome parental interest)
§ Risk of error (this is the contestable issue generically and in the Lassiter case) (Majority opinion says not complex (i.e., not criminal, no expert witnesses) then low risk of error)
Test: Fairness Factors to consider in addition to Eldridge factors when considering appointing counsel (looking as specific case and parties):
○ Complexity/simplicity
○ Adversarial balance (does other side have attorney)
○ State activism—availability of other safeguards by requiring the state/court to do more, such as:
1. Notice of critical question
2. Form to test means of party to pay for attorney
3. Opportunity to respond (judge has to ask if defendant can pay to avoid imprisonment)
4. Express finding by the court that litigant holds keys to own prison
CASES:
Lassiter: Right to Attorney not Absolute. Parent not entitled to counsel at termination hearing if risk of error is low—case not complex and evidence strong enough that counsel would not have helped.
Turner v. Rogers
The Supreme Court held that the presumption of a right to counsel only occurs in cases involving incarceration, which does not mean one is always entitled to representation in such cases. “Only” does not equals “always”! If you hold the keys to your own prison (civil contempt) then no right to attorney.
Right to Jury Trial
You have a right to a jury trial in civil cases under the 7th Amendment. But maybe not if the issues are complex.
Historical Test (at 1791 was there a right?):
· Injunction is not an action at common law, therefore no right to jury trial.
· Damages are an action at common law with a right to jury trial.
Current preference is to try a common issue, both equity or damages, in front of jury
CASES:
In re Japanese Electronics –
Holding/Rule: the constitution does not necessitate a jury trial in an antitrust action if the issues are too complex for the jury to decide in a proper manner (Due process demand for accuracy trumps 7th amendment demand for jury trial)
Pleading
Rule 8a Requirements:
1. Short and Plain Statement of jurisdiction and the claim showing that pleader is entitled to relief
2. Demand for judgment for the relief
· Ask: Do you have enough facts to survive a Rule 12b6 (failure to state a claim)?
CASES:
Swierkiewicz v. Sorema, N.A.- Complaint should not be dismissed unless it is clear that no relief can be granted under any set of facts consistent with allegation (Access Now was a case that no set of facts consistent with allegation could support relief…websites are not public accommodation under ADA, thus they made a fatal omission)
Bell Atlantic Corp. v. Twombly
Plausibile Standard: a complaint will be dismissed unless the facts pleaded plausibly suggest an entitlement to relief (and the court can consider alternative explanations in determining if a claim seems plausible)
Ashcroft v. Iqbal
First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Legally conclusory statements are insufficient. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Plausible alternatives can be taken into account to dismiss mere legal conclusions absent facts to refute more plausible alternatives…more likely explanations can trump pleaded ones (Twombly=rationale business practices; Iqbal=rationale law enforcement practices of detaining potential terrorists). Possibility does not equal plausibility.
A careful lawyer would look at both Swierkiowicz and Iqbal and Twombly standards and show how claims meet both. When in doubt, analyze it both ways and explain why you are analyzing it both ways. [ON EXAM]
Starr v. Baca (9th Circuit case in 2011): Judge Fletcher: “First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.”
Burden of Pleading
· Ask: Do you have enough proof to meet Rule 11 (pleading certification)?
Cases:
Gomez v. Toledo
In Sec. 1983 civil rights claim against police, P does not have to anticipate D‘s defenses (like qualified immunity unless acted in bad faith) in stating statutory elements. Good faith facts are “peculiarly w/in the knowledge and control of the D”. D has burden of pleading his mental state.
Responding to the Complaint
Rule 8(b) Defenses; Form of Denials
· state in short and plain terms (meet substance of complaint) defenses to each claim asserted
· admit or deny averments
· If w/o info sufficient to admit/deny = denial.
· Pleader shall specify what part of an averment is true and deny the remainder.
· May either make specific denials or a general denial with exceptions.
Rule 12 Defenses and Objections
Rule 12(a) When Presented:
1) W/in 21 days of being served summons, unless waived
Rule 12(b) Motions: (How Presented) Following defenses may be made by motion:
1) Lack of jurisdiction over subject matter (not waivable)
2) Lack of jurisdiction over the person (waivable if not in first filing or first Rule 12 motion, but can seek Rule 15a1 amendment if within 21 days of serving AND just not in first filing)
3) Improper venue (waivable if not in first filing or first Rule 12 motion)
4) Insufficiency of Process (waivable if not in first filing or first Rule 12 motion)
5) Insufficiency of Service of Process (waivable if not in first filing or first Rule 12 motion)
6) Failure to state a claim upon which relief can be granted (based on 8(a)(2)) (not waivable)
7) Failure to join a party under Rule 19 (not waivable)
Rule 12(c) Motion for Judgment on the Pleadings – used to file a motion to dismiss after answering the complaint and pleading is closed, otherwise will be treated as Summary Judgment under Rule 56 (when there is evidence)
· = Pleading form of 12(b)(6) (for assertions, not evidence)
Rule 12(e) Motion for a More Definite Statement (rare) – when vague/ambiguous; must be filed before D files an answer
Amending the Pleadings
Rule 15 Amended and Supp. Pleadings
Rule 15(a) Amendments. A party may amend once as a matter of course, w/in 21 days of being served. Then only by written consent of adverse party or by leave of ct, which shall be freely given when justice so requires.
Under what circumstances may a party amend its pleading as of right?
1. Before trial…
a. 21 days after service
b. 21 days after service of a responsive pleading
c. 21 days after a motion for any of the seven defenses described in 12(b), a motion for a more definite statement 12(e), or a motion to strike 12(f)
d. When the opposing party has given permission or the court’s leave
2. During or after trial (Rule 15(b)…
a. Sometimes at trial for evidence contested to be outside the issues raised in pleadings (discovered during discovery)
b. When both parties consent (or imply consent by letting it move forward)
Prejudice – amendment (not) allowed if D can show prejudice
Rule 15(c) Relation Back. A pleading relates back to the date of the original pleading when:
1) It is permitted by the Statute of Limit.
2) The claim/defense arose out of conduct, transaction, or occurrence set forth or attempted to be set forth in original pldg (claim against same party)
3) The amendment changes parties and the newly named party A) will not be prejudiced in making a defense and B) knew or s/h known within 120 days of the original claim (Rule 4(m)) they were the proper party in the action, but for the mistake concerning the identity of the proper party
CASE:
Worthington v. Wilson: Court holds that the amendment to complaint does not relate back for statute of limitations purposes because the naming of unknown police officers was not a “mistake” as required in Rule 15c1Cii.
Ethical Limitations on Pleading
Rule 11 Sanctions
(Allegations can be made only after reasonable inquiry and with a belief that the pleading is well grounded in fact.)
Rule 11(b) Representations to Court. Submissions must be “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances that:
1) No improper purpose—can’t harass, intend to delay/increase costs
2) Warranted by existing law—or a non-frivolous argument to extend the law
3) Likely to have evidentiary support
Rule 11(c) Sanctions – If (b) is violated, ct may impose appropriate sanctions upon atty, law firm or party that has violated (b) above
1) Initiated by A) motion or on B) court’s initiative.
2) Limitations: sanctions are limited to what is sufficient to deter r
O’Conner Four: States that there was no purposeful availment, because Asahi did not do anything to specifically market their product to CA.
a. Placing item in stream of commerce, even knowing that it will end up in CA, is not enough. Must actively do something, like tailor to market, have an office there, etc.
9. J. McIntyre Machinery, Ltd. v. Nicastro: The plurality concluded that even if J. McIntyre had targeted the United States as a whole, New Jersey's courts lacked jurisdiction because the company had not “purposefully availed itself of the New Jersey market.” The court found that there must be something more to allow for jurisdiction. In discussing what the something more could consist of, the court provided examples of “special state-related design, advertising, advice, marketing, or anything else.”
i. The Plurality is not controlling law! Concurring Opinion of Justices Alito and Breyer is controlling. Justices Breyer and Alito explained, the Court “has strongly suggested that a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place.”
ii. Justice Ginsburg filed a dissenting opinion, which was joined by Justices Sotomayor and Kagan. The dissenters would have held that the New Jersey courts did have jurisdiction over J. McIntyre. In their view, the goal of the company was “simply to sell as much as it can, wherever it can” and “to avoid product liability litigation in the United States” if at all possible. Here, because McIntyre “availed itself of the market of all States in which its products were sold by its exclusive distributor,” it therefore should be subject in any of them to suits arising out of events occurring there.
10. Calder v. Jones: in intentional tort cases you can be held liable under purposeful conduct directed at a state.
i. the editor was aware that the magazine had a significant circulation in California, that the plaintiff resided in California, and that the allegations made in the article would harm her career there.
11. Shaffer v. Heitner: In referring back to Int’l Shoe, the court stated that contact is no longer thought about in terms of power but fairness. Thus, property has to relate to or arise out of action in order for state to have jurisdiction; since jurisdiction in this case was based on ‘presence’ of stock not relating to claim, there is no jurisdiction.
12. Perkins v. Benguet Consol. Mining Co: A Philippine mining corporation was sued in Ohio for failing to pay stock dividends when the CEO of the company returned to Ohio with the corp’s files during WWII, and continued to oversee the corps. limited activities. SCOTUS held this was sufficient activity to support jurisdiction over the company (early general jurisdiction).
13. Helicopteros Nacionales De Colombia, SA v. Hall Did not “constitute the kind of continuous and systematic general business contacts … found to exist in Perkins,” and were insufficient to support the exercise of jurisdiction over a claim that neither “ar[o]se out of … no[r] related to” the defendant's activities in Texas. Helicopteros concluded that “mere purchases [made in the forum State], even if occurring at regular intervals, are not enough to warrant a State's assertion of [general] jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.”. (no general jurisdiction just because substantial stream of commerce of helicopters…substantial dealings is not enough to make you at home there for purposes of general jurisdiction)
14. Goodyear Dunlop Tires Operations, S.A. v. Brown Actions in North Carolina not substantial, continuous, or systematic enough to consider them at home in a permanent and fixed way like a domicile, so not sufficient for general jurisdiction.
