CIVIL PROCEDURE
LEVINE
FALL 2013
CHOOSING A SYSTEM OF PROCEDURE
FRCP RULE 1 – SCOPE AND PURPOSE
· These rules govern the procedure in all civil actions US
· Should be used to secure the just, speedy, and inexpensive determination of every action.
PLEADINGS
Gillispie v. Goodyear Service Stores NC (1963) (p.130)
· Pleads legal conclusions rather than facts
· Required: facts sufficient to state a cause of action
· a plaintiff must make out his case secundum allegata – according to the allegations.
Federal Notice Pleading Requirements
· Notice to defendant
· Notice to Court
· Deciding the merits
o Short and plain statement FRCP 8(a)(1) Form 11
Jones v. Clinton – Complaint
Code Pleading
Cmte. Children’s Television v. General Foods CA (1983) (p652L)
· Consumer protection statutes have a low pleading bar (relatively small relief), whereas fraud has a higher standard (compensatory and punitive damages).
CCP § 425.10 – COMPLAINTS
· Should contain
o 1. Statement of facts constituting cause of action
o 2. Demand for relief
CCP § 430.10 – OBJECTIONS TO COMPLAINT
· May object by demurrer or answer on following grounds
o (a) Jurisdiction
o (b) No legal capacity to sue
o (c) Another action pending, same parties, same cause of action
o (d) Defect or misjoinder of parties
o (e) not facts sufficient to state a cause of action
o (f) uncertain – ambiguous/unintelligible
o (g) contract – cannot be determined if written, oral, implied
US v. Board of Harbor Commissioners US (1977) (p.139)
· Statute makes pleading bar very low
FRCP 12(e) – MOTION FOR A MORE DEFINITE STATEMENT
· So vague/ambiguous that party cannot respond
· Must be extreme, not a way to get more detail
FRCP 12(f) – MOTION TO STRIKE
· May be motion or courts own action
· Insufficient defense, immaterial, impertinent, scandalous
FRCP 7 – PLEADINGS ALLOWED, FORM OF MOTIONS ETC.
· Complaint, answer, answer to counterclaim/crossclaim, 3rd party complaint, court ordered reply to complaint.
FRCP 8 – GENERAL RULES OF PLEADING
· (a) pleading must contain
o jurisdiction
o short and plain statement of cause of action
o demand for relief
· (b) responses to pleading
· (c) affirmative defenses
· (d) allegations simple, concise, direct, no tech form required
o Alternative pleading is allowed, unless party has knowledge of true facts.
o Claims may be inconsistent
· (e) construed to do justice
McCormick v. Kopmann IL (1959) (p.144)
· Pleading logical inconsistency of both being drunk, or not being drunk against 2 D’s
· Alternative pleading is allowed under FRCP 8(d) – pleading in the alternative due to uncertainty.
Zuk v. Eastern Pennsylvania Psychiatric Institute (1996) (p.149)
· 12(b)(6) – failure to state a claim
o no legal basis for copyright claim
o outside statute of limitations
· Copyright Act – sanctions for parties, not attorneys
· 28 USC § 1927 – not multiplicity
· Rule 11(c)(2) – applicable sanctions
o No investigation
o Statute of limitations
o No legal basis for copyright claim
FRCP 11 – SIGNING, REPRESENTATIONS TO THE COURT, SANCTIONS
· A) Signature (certifying the representations made in B)
· B) certifies that to the best of the person’s knowledge, information, and belief, following below, you have applicable legitimate claims.
o 1. Not improper
o 2. Must be lawful, or arguing for new law
o 3. Facts have support, reasonable investigation
o 4. Evidence available, or information lacking
· C) Sanctions
o 1. Court may impose sanction on attorney, firm, or party. Law firm must be held jointly responsible.
o 2. Must describe specific conduct violating 11(b)
§ If warranted, the court may award to the prevailing party the reasonable expenses, including att
P 8(b) – ADMISSIONS AND DENIALS
· (1) Must respond to each claim and admit or deny
· (2) Must respond to the substance
· (3) Can deny everything, or deny everything and lay out exceptions
· (4) Can deny part and admit part of an allegation
· (5) Can lack knowledge or information sufficient to form a belief about the truth of an allegation
FRCP 8(c) – Affirmative Defenses
· even if the allegation is proven, there is a justifiable reason for the action
· must be raised by the D or may be considered waived.
Krupski v. Costa Crociere (2010) (Supp. 65)
· P made claim against incorrect entity, and was notified by D.
· CC knew or should have known but for the mistake of P they would have been named in the suit.
FRCP 15
· Recognize that mistakes may happen.
· (a) ammendments before trial
o within 21 days after serving you may amend ONCE
o In other cases, may amend with opposing party’s consent, court should give leave as justice requires.
o There must be time to respond (prejudice)
· (b) may be given another chance during/after trial
· (c) relation back
· (d) supplemental pleadings – things that happened after the date of the pleading.
FRCP 15(c) – Relation back of Amendments
· (1) an amendment can relate back when
o (a) the law that provides SOL allows relation back
o (b) same conduct, transaction or occurrence as orig complaint
o (c) changes the party or naming of party IF
§ 15c1b same conduct, transaction or occurrence,
§ AND IF within the period provided by 4(m): 120 days or SOL, the party
