LEVINE – CIVIL PROCEDURE – FALL 2009
CHAPTER I: CHOOSING A SYSTEM OF PROCEDURE
· Band’s Refuse Removal, Inc. v. Borough of Fair Lawn (NJ Superior Court, Appellate Division)
Judge is supposed to be an arbiter, not an investigator
Using power in an extreme manner leads to prejudice and a lack of impartiality
No specific rule, but Cf. Canons of Judicial Ethics, Canon 15 prohibits taking the role of an advocate
CHAPTER III: DESCRIBING AND DEFINING THE DISPUTE
1. Pleading
· General
o Too detailed: less cases, more self-solving, inability to solve cases, prevent unworthy cases – ensure more confidence in the case, potentially deny deserving cases
o Too lenient: more cases, difficult to figure out what’s going on
o Federal system uses notice pleading (Form 11)
o States can choose code pleading or notice pleading – most choose code pleading
o Goal is to narrow the dispute as far as possible
o Common law fraud: plaintiffs have to actually have suffered damages
· In Committee on Children’s Television, this wasn’t true – just had to show misrepresentation
· Gillispie v. Goodyear Service Stores (North Carolina Supreme Court) – Code Pleading
R: The complaint must state facts, not legal conclusions that support the allegations.
By using words such as “assault, trespass”, there was no factual basis for the court to apply the law
Pleading must provide enough information to adequately notify the defendant of the events or conduct at issue
· Jones v. Clinton Complaint (Supp.)
o Outlined issues of depravation of federally protected rights (sexual harassment and fear of losing job), intentional confliction or emotional distress, and for defamation
· Committee on Children’s TV, Inc. v. General Food Corp. (CA Supreme Court) – Notice Pleading
I:
How specific must a complaint be?
R:
Bradley v. Hartford Acc. & Indemnity Co says that less specificity is required when the “defendant must necessarily possess full information concerning the facts of the controversy.”
A:
The defendants already knew the details of the allegation (dates, times, places, etc. of the deception) and revealed them in discovery. It would be impractical to provide the information in written form as it would take an exorbitant amount of time and effort, but not increase knowledge. It would set a precedent where corporations could avoid lawsuits by creating a burdensome and impossible task. For the issue of fraud, it would be reasonable to require the plaintiffs to include a representative selection of the issues.
C:
Plaintiffs can amend their complaint and then try it at court.
· CCP §425.10: Standards for code pleading
· CCP §430.10: Defendant’s objections – demurrer
2. Describing and Testing the Plaintiff’s Claim
o The Problem of Specificity
· United States v. Board of Harbor Commissioners (US District Court, Delaware)
I:
How detailed must a complaint be in order to satisfy the rules?
R:
Rule 8 requires that a plaintiff provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(e) is restricted to situations where a pleading suffers from “unintelligibility rather than want of detail.”
A:
The plaintiffs gave enough information so that the defendants could understand they were being charged with ownership and responsibility for the facilities which were discharging oil into the river. Any attempt to get more information is a misuse of Rule 12 since it’s just trying to find out the opposing party’s case.
§ Under code pleading, the complaint would not be sufficient, but under notice pleading it is ok
o FRCP 7: limits the number of pleadings for any one cause of action
o FRCP 8: requires that the plaintiff provide “a short and plain statement of the claim showing that the plaintiff is entitled to relief”
o FRCP 12(e)&(f): motion for a more definite statement
o Consistency and Honesty in Pleading
· Inconsistent Allegations – FRCP 8(e) (Construing Pleadings)
§ McCormick v. Kopmann
I:
Can a plaintiff file a complaint with inconsistent arguments?
R:
FRCP 8(d) says that alternative statements of claim may be made regardless of consistency (Urnest v. Sabre Metal Products). However, alternative pleadings are not acce
302(b), Comment e says that a person has a duty to protect when his affirmative act exposes another to a high degree of risk. In this case, the defendant directed the plaintiff to an area of known danger, an affirmative conduct which created the duty to warn the plaintiff or redirect him to a safe area until the delivery could be made.
o Rule 12(b)(6) – failure to state a claim upon which relief can be granted
· Only question is whether the complaint itself states a legally sufficient claim
· Court doesn’t consider pleadings or evidence
· Assumes the facts alleged are true
· Plaintiff is usually given benefit of the doubt; complaint is liberally construed
o Heightened Requirements for Specificity
· Rule 9 usually calls for general pleadings, but 9(b) states that some cases require greater particularity (such as fraud); the details can be pleaded generally since some of the basis are within people’s minds
o The Current Application of Rule 8(a)(2) Pleading Requirements
· Swierkiewicz v. Sorema, N.A. (Supreme Court)
I:
Petitioner was demoted and replaced by a less qualified person with the same nationality as the CEO. When he requested a severance package, the CEO responded with a choice of resignation without severance or dismissal. After he refused to resign, he was terminated.
I:
Must a complaint for an employment discrimination lawsuit contain specific facts establishing a prima facie case of discrimination?
R:
McDonnell Douglas Corp. v. Green establishes that the prima facie case is required as an evidentiary standard, but it is not a pleading requirement. Rule 8(a)(2) further states that a complaint needs to contain only “a short and plain statement of the claim showing the pleader is entitled to relief.”
