CIVIL PROCEDURE
Vetter
PLEADING
I. Basis for federal jurisdiction
A. Diversity of citizenship (INXS $75,000)
1. All parties on one side must be citizens of different states than ANY party on other side (complete diversity)
2. Corporations citizen of state in which incorporated & where its principle place of business is
B. Must be federal question (Constitution, treaties, etc)
C. Question arising under particular statutes
D. Admiralty/ maritime
II. Pleading
A. General Principles
1. Two types: Complaint and Answer
2. Can also be a reply, i.e. in response to a counterclaim
3. Not required to plead FACTS upon which claim is based
4. Not required to plead legal theory
5. A complaint should not be dismissed for 12(b)(6) “unless it appears beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief”—Conley v. Gibson
B. Mechanics
1. RULE 11 – atty. must no file frivolous pleadings
a. RULE 11(b): An attorney or unrepresented party is certifying that to the best of their knowledge, information, & belief, formed after reasonable inquiry that:
i. (1) it is not being presented for any improper purposes, like to harass or cause unnecessary delay or increased cost of litigation
ii. (2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument to extend, modify, or reverse existing law
iii. (3) the allegations and other factual contentions have evidentiary support or is specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation/ discovery
iv. (4) the denials of factual contentions are warranted on the evidence or if specifically so identified, are reasonably based on lack of info or belief
b. Applies to all papers filed in Ct; most meant to deter P’s ATT’s from asserting bad claims
c. Nature of sanctions
i. Weaker than before 1993 amendment
ii. RULE (c)(2): sanctions shall be limited to what is sufficient to deter repetition of conduct; censuring lawyer, striking offending pleading, etc
iii. Monetary sanctions: Since 1993, $$ now goes to Ct, only to party if needed for effective deterrence, deprives party of monetary incentives = ↓ Rule 11 motions
iv. Sanctions are now discretionary; Ct MAY impose sanctions instead of MUST
v. Deterrence more important than $$ sanctions
d. What is “reasonable inquiry”?
i. Atty. must make reasonable inquiry b4 signing pleading
ii. Cannot blindly accept P’s version of story, need some evidence, ask some questions
iii. If evidence is in D’s possession, can sign w/o detailed inquiry if specifically identify this in pleading (on theory that can get info in discovery)
– Don’t reaffirm bad pleadings: if u. make reasonable inquiry, then later learn bad pleading, must w/draw pleading. 11(b) certifying = signing AND “later advocating”
– Bad faith not required: if atty. honestly thinks complaint is true, but a reasonable person’s inquiry would’ve shown otherwise, can sanction
e. Procedure for invoking RULE 11
i. Normally opposing party makes a motion
ii. Ct can impose sanctions on its own initiatives
iii. Safe Harbor: If party serves motion on other party, cannot FILE IT unless other party doesn’t w/draw or fix problem w/in 21 days
f. Sanctions against party: even if party doesn’t sign, can be held liable if Ct finds party NOT atty. responsible – RULE 11(c); if pleader DOES sign, treated like an atty. for Rule 1 purposes
2. Pleading in the alternative
a. RULE 8(e)
i. A party may state as many separate claims or defenses as the party has regardless of consistency; Can plead in the alternative
ii. McKormick v. Kopmann: (husband + alcohol =accident) Widow claimed bar sold husband alcohol when they knew he had too much, also claims that her husband exercise
), usually P will have chance to amend it (dismissed w/o prejudice)
4. If this motion is granted, P has 2 options:
a. Amend
b. Appeal: can immediately appeal since it’s a final judgement
5. If this motion is dismissed, D has 2 options:
a. Answer
b. Default judgement and appeal (can’t appeal w/o default b/c not final)
6. If motion made after pleadings completed, use RULE 12(c) instead, motion for judgement on the pleadings
V. The Answer
A. Generally
1. RULE 8(b): D. must state in short plain terms his defense to each claim asserted and shall admit or deny the averments upon which P relies – applies to all answers, including these to counterclaims
2. Can also plead in the alternative
B. Denials
1. Admitted when not denied
2. General denial if deny each and every allegation, including jurisdictional grounds
3. Specific denial for specific paragraph/ averment
4. Denial of Info/ Knowledge has effect of full denial, need good faith
C. Affirmative Defenses
1. RULE 8(c) lists 19 specific defenses, including negligence, fraud, res judicata, S/L
2. Any matter not embraced by complaint should be pleaded as affirmative defense
3. If not set forth, they are WAIVED
4. Burden of proof/ pleading on D
a. Gomez v. Toledo: P sued D for damages under §1983 of Civil Rights Act. A public official’s qualified immunity was held to be an affirmative defense, and therefore up to D to plead b/c “it depends on facts peculiarly w/in the knowledge and control of the D”
Amendment: If D neglects to plead affirmative
