Civil Procedure I Outline

CivPro Outline

David Oppenheimer, UC Berkeley Law, Fall 2014

1) Intro to FRCP

a) FRCP 1,2,3,7

i) FRCP rule 1: These rules should be construed and administered to secure the just speedy and inexpensive

ii) FRCP rule 2: There is one form of action – the civil action.

iii) FRCP rule 3: A civil action is commenced by filing a complaint with the court

b) FRCP Rule 7—

i) (a) Pleadings Allowed:

(a) complaint;

(b) answer to a complaint;

(c) answer to a counterclaim designated as a counterclaim;

(d) answer to a cross claim;

(e) third party complaint;

(f) answer to a third party complaint; and

(g) if the court orders one, a reply to an answer (even in special appearances)

(2) Motions:

(a) a request for court order must be made by motion in writing, which states with particularity the grounds for seeking the order and states the relief sought.

2) Pleadings- to give notice to the other party of the pendency of the action & the nature of the claims

a) Vocab

i) Complaint—statement of claim against D explaining what it is. According to P, that entitles P to recover a claim against D.

ii) Answer—D’s response to P’s claim

iii) Counterclaim—If D wishes to assert a claim against P

iv) Cross Claim—If P sued two Ds and one D wishes to complain against the other D, the Co-Defendant

v) Third Party Complaint—D may file its own complaint against a person who is not already a party to the lawsuit. Also called an impleader.

b) Notice pleading v. Code pleading

i) Notice Pleading aka Rule Pleading— a complaint merely needs to contain a short and plain statement of their cause of action showing that the pleader is entitled to relief [Rule 8(a)(2)]. The idea is that a plaintiff and their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence during the discovery phase.

ii) Code Pleading aka Fact Pleading—requires pleading the operative facts to show the claim to relief & demonstrate that the plaintiff can meet each element of the cause of action. Argument for a heightened level of pleading is that it will help protect the courts from a flood of cases with no basis.

c) FRCP 12(b)(6) –sufficiency of a complaint– failure to state a claim upon which relief can be granted (even if we assume everything P said is true, so what?) We ask if the facts pleaded, if true, are sufficient to establish a legal claim.

i) 12(b)(6) motions to dismiss are not disfavored, but they need to be brought before the end of the trial or else they’re waive

ii) If you move to dismiss on subject matter jurisdiction you don’t waive your right to dismiss under personal jurisdiction

d) FRCP Rule 8 – purpose of pleading under FRCP is notice to the opposing party:

(a): Claim for relief: a pleading that states a claim for relief must contain:

i) a short and plain statement of the grounds for the courts jurisdiction

ii) a short and plain statement of the claim showing that the pleader is entitled to relief (eg some legal right was violated): and

iii) a demand for the relief sought.

(1) When is a complaint sufficient? How much does the plaintiff have to know or tell in order to file a proper complaint?

(2) Lower standard v. higher standard

(a) Lower standard Sweirkienwicz and Conley

(i) Sweirkienwicz – Under Rule 8(a)(2) of the FRCP, a complaint does not have to allege facts that establish a prima facie case, but rather just needs a short and plain statement of the claims showing why they are entitled to relief.

(ii) Conley: a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of fact in support of his claim which would entitle him to relief.

(iii) Policy- if a complaint provided adequate notice, there was no reason to treat legal conclusions as inadequate- discovery would expose flaws in the allegations or add details

(b) Higher standard Twombly and Iqbal

(i) Twombly – complaint need not detail factual allegations, but it needs enough to raise a right to relief from speculative level to plausibility.

(ii) Iqbal- reaffirmed Twombly and raised it every case not just fraud.

(iii) Arguably, these cases require fact pleading, under which a plaintiff must not only plead that the defendant has violated her rights, but must also allege supporting evidence (eg facts) of the violations.

(iv) It is still true that after Twombly, Iqbal that the courts in passing on a rule 12b6 motion will assume the truth of the facts alleged.

(v) Policy-

1. Iqbal Majority- argues that this decision will help cut the costs of litigation by being able to dismiss groundless claims before they get to the discovery phase which is very expensive.

a. In addition, it will protect innocent D from having to settle in order to avoid the more expensive discovery.

2. Iqbal Dissent-The relaxed pleading standard of FRCP 8a2 was not to keep litigants out of court but rather to keep them in.

3. By requiring pleading of facts to demonstrate a plausible claim, has SCOTUS now created a problem where courts must now distinguish between laws and facts?

e) FRCP Rule 8 (d): Alternative/Inconsistent pleading

i) FRCP Rule 8 (d)(2)- a party may set out 2 or more statements of a claim or defense alternatively or hypothetically either in a single count or defense or separate ones. If a party makes alternative statements, the pleading is sufficient if any of them is sufficient.

ii) FRCP Rule 8 (d)(3)- a party may state as many separate claims or defenses as it has, regardless of consistency.

iii) McCormick –

(1) Alternative fact allegations made in good faith and based on genuine doubt are not admissions against interest so as to be admissible in evidence against the pleader.

iv) Policy- allows for P to just file all claims in one court making it more efficient for courts. Also gives P to recover from one or another came and prevents him from being awarded in 2+claims that may be contradictory

f) FRCP Rule 11: Ethical rules governing pleading

i) (a) every pleading, written motion and other papers must be signed by the attorney

ii) (b) Signing it makes a representation to the court that:

(1) case is not being brought for an improper purpose such as to harass, cause undue delay, or needlessly raise the costs of litigation,

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non frivolous argument so identified for the extension, modification or reversal of existing law or establishment of new law,

(a) Policy: requires that the party asserting a legal position has a rational argument for the position.

(3) Factual contentions have evidentiary support,

(a) appears to allow the P to sue w/o knowing the facts necessary to establish a claim, so long as he has reason to believe he will develop them. How can this exist in twiqbal universe?

(4) denials of factual contentions are warranted on the evidence.

iii) (c) Sanctions:

(1) If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated it may impose sanctions for violation on any attorney, law firm (held jointly responsible by any violation by an employee) or party that violated the rule, and

(2) a motion for sanctions must be made separately from other motions and describe specific conduct. Court is not forced to award sanctions, only award if warranted.

(a) Safe Harbor: Must give the accused party a 21 day safe harbor to either withdraw or correct pleading to comply with the rule before sanctions are filed, and

(3) a court may on its own initiative order a hearing for cause and ask a party to explain why it shouldn’t be sanctioned. A judge cannot sanction a party under Rule 11 without notice and a chance to be heard at a show cause hearing.

(4) Sanctions must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated, and

(5) There are limitations on monetary sanctions,

(a) When counsel makes an improper legal assertion, only counsel can be s