CIVIL PROCEDURE
MARCUS
FALL 2014
PLEADINGS
COMPLAINT 8(a)
Must include the following three Items:
1. Grounds for Jurisdiction (SMJ)
2. Short and plain statement of the claim
a. Standard:
i. “No set of facts” to support claim – retired standard (Conley v. Gibson)
ii. Must meet “Plausibility” standard (Swierkiewicz/Twombly/Iqbal) – comes from statutory req’t and facts of case
1. Ignore legal conclusions
2. Take factual allegations as true (not too conclusory or formulaic recitations of a cause of action) (OR tracks official form)
3. Judge may use common sense/judicial experience in determining plausibility
b. Alleging Fraud/Mistake 9(b): if alleging fraud/mistake must state w/ particularity. I
i. Cogent and at least as compelling as any opposing inference (equally plausible)
ii. Why? (1) Fair notice, (2) harm to reputation/guards against abuse, (3) limiting in terrerom value of suit
c. Alternative/Inconsistent Pleadings Allowed 8(d)(2): P may plead two seemingly conflicting cause of action in same complaint (may plead in the alternative) (McCormick v. Kopmann)
i. BUT pleading must be based on reasonable evidentiary (either at filing or after reasonable) and legal grounds under 11(b) (Zuk v. EPPI)
ii. Empty head but a pure heart is no excuse for failing to do adequate rule 11 investigation (Thornton v. Wahl)
3. Demand for relief/judgment
4. ALSO: 10(b) paragraphs, separate statements (rifle shot NOT shotgun): complaint must be intelligible (and if tracks specific form in appendix of FRCP, okay)
D’S RESPONSE (motion or by answer)
TIMING: D must respond w/ in 21 days of service of process OR will be in default (P can go after default and default judgment)
1. MOTION (but could also be in ANSWER as an affirmative defense)
a. A request for the Ct to do something:
i. 12(b)(6) motion to dismiss
1. Well pled allegations of fact are considered truthful for purposes of deciding motion.
2. Does the motion challenge legal sufficiency of the complaint? If so, set aside conclusory and legal allegations and ask whether the factual allegations (assumed to be true) show plausible (non-speculative) entitlement to relief under the applicable substantive law?
a. Focus on the factual allegations, and must assume them to be true. That said, is there plausible claim for relief?
b. Claim is not plausible if there is an equally plausible and non-culpable explanation, and the facts alleged are “merely consistent” with a D’s liability –
c. Pleadings do not require the facts be pleaded with “particularity”, but…
ii. 12(c) motion for judgment on the pleadings (better than SJ b/c doesn’t open doors to discovery)
1. AFTER pleadings closed (but early enough not to cause delay) party may move for 12(c)
2. If made by D: strongly resembles 12(b)(6) except comes LATER and includes both complaint and answer
3. If made by P: points to admissions in answer and says as matter of law, P necessarily prevails based on facts
iii. 12(d): result of presenting matters outside the pleadings. (if Court’s accept item and it’s not intrinsically linked to the complaint, the courts should convert to SJ if court considers matters beyond the face of the complaint)
1. 10(c) if P attaches an exhibit to complaint, it’s part of the complaint for all purposes.
2. Ex: Where 12(d) does NOT convert: contents of insurance plan in insurance claim, contents of SEC filings based on stock fraud: all should be ‘merged’ with complaint
iv. 12(e) for more definite statement
1. D can make two arguments: (1) insufficient info to admit/deny, (2) insufficient info to prepare defense (Gillispie)
a. But if so unintelligible that can’t formulate response, probably better to use a 12(b)(6) to throw out
2. Restricted to when pleading is unintelligible, rather than lacking in detail (United States v. Board of Harbor Commissioners)
3. As long as pleading sufficient under 8(a), typically denied à but can be used to determine the “fatal fact” if then 12(b)(6)
v. 12(f) motion to strike
1. D may use as a “mini 12(b)(6)” or to strike irrelevant, redundant or scandalous matter from pleading – not LIKELY
2. P may use to strike insufficient affirmative defenses (e.g. P had blue eyes)
b. 12(b) defenses that D may raise in answer or by motion to dismiss
i. 12(b)(1): lack of SMJ
ii. 12(b)(2): lack of PJ
iii. 12(b)(3): improper venue
iv. 12(b)(4): insufficient process
v. 12(b)(5) insufficient service of process
vi. 12(b)(6) failure to state a claim
vii. 12(b)(7) failure to join an indispensable party
viii. NOTE: 12(b)(2) – (5) must be put in first response or WAIVED, 12(b)(6) and 12(b)(7) raised through trial, and 12(b)(1) never waived
2. ANSWER R 8(b) (two things must be included)
a. Must respond to complaint
i. Admit (silence is admission)
ii. Deny (general vs. specific)
iii. Lack sufficient information (treated as a denial unless could have easily gotten information) (David v. Crompton and Knowles Corp)
b. Must raise affirmative defenses listed in 8(c) and inject new fact into case
i. If not listed, does applicable substantive law define the defense as AD? Does the defense seek to controvert aspect of P’s claim or does it provide legal excuse or justification?
1. If controvert (logically flows from P’s allegations), then ordinary defense – should be in denial section
AMENDMENTS:
Pre-Trial Amendments 15(a)
· 15(a)(1): Matter of Course: 1) once w/ in 21 days after serving, 2) 21 days after responsive pleading serviced (or responsive motion under12(b), 12(e) or 12(f) 3)
· 15(a)(2): Leave of Court
o Written consent of adverse party of court order
· Should be granted IF: “leave shall be freely given when justice so requires”
· Should be denied IF:
1. Undue Delay (delay by self is insufficient)
§ Aware or should have been aware of info forming basis for amendment (David v. Crompton & Knowles)
§ Bad faith/dilatory motive (party wants tactical advantage) (Bands Refuse Removal, Inc. v. Borough of Fair Lawn)
§ Repeated failure to amend correctly
2. Harm/Prejudice Opposing Party (preparation prejudice) à makes it difficult to prepare for trial. CONSIDER: cost shifting
3. Disruption of Trial Schedule
4. OTHER
§ Futility of proposed amendments (repeated failure to correct problems in claim)
Amendments During and After Trial 15(b) (introduction of new evidence, or evidence not in pleadings)
· “Manual” Amendment (based on objection at trial) à Rule 15(b)(1)
o If evidence is not within the pleading, the court “should freely permit an amendment when doing so will aid in presenting the merits” and the objecting party fails to show that they would be prejudiced
§ No undue delay or prejudice to opposing party
§ Court may also grant a continuance to the objecting party to prevent undue prejudice
· “Automatic” Amendment (for issues tried by express or implied consent) à Rule 15(b)(2)
o When issues not raised by the pleadings are tried by express or implied consent (implied consent = no objection) of the parties, they shall be treated as if they had been raised in the pleadings.
o E.g. if new evidence is introduced supporting a claim not in the pleadings, and other party does not object, then automatic permission to amend to include the new claim
· Supplemental Pleading
o Adds to but does not modify initial pleading (Giglio v. Konold) à ex: newly manifested injuries from same incident
Relation Back 15(c)
· Statute of Limitations R15(c)(1)(a)
o Does the law providing the statute of limitations applicable to the action permit relation back under the circumstances?
· Claim or Defense 15(c)(1)(b)
o Amendments asserts claim or defense that arose out of the same conduct, transaction or occurrence set forth in the original pleadings? (If so, then relates back)
· New Party R15(c)(1)(c) (Krupski v. Costa Crociere)
o Are the requirements of 15(c)(1)(b) satisfied (same transaction test)?
o Notice: did the party to be brought into the action receive, within 120 days, notice such that it will not be prejudiced in mounting a defense on the merits?
o Awareness of Real Party Status: Did the party to be brought into the action know (or should have known) that but for a mistake concerning the identity of the proper party that the action would have been brought against that party?
Rule 16(e) Final Pretrial Conference and Orders
· Allowing amendment at trial seems to run counter to rule 16(e) pretrial order provision (held as close to trial as possible) which states that the course of action “shall be modified only to prevent manifest injustice”
Same Transaction/Occurrence Relates To:
· Compulsory counterclaims 13(a)
· Relation back of amendments 15(c)
· Permissive joinder R 20
· Supplemental jurisdiction
· Res judicata
Transaction Test Is (same nucleus of operative facts):
· Same Issue? (facts related in time, space, origin or motivation)
· Same Evidence? (convenient trial unit/treating them as unit conforms to parties’ expectations)
· Is there a logical relation?
RULE 11 (Zuk v. EPPI)
Pleading must be signed by at least one attorney of record of by the party personally if unrepresented asserting claims have:
· 11(b)(1) Proper purpose – not to harass or cause unnecessary cost and delay (Sneller v. Bainbridge)
· 11(b)(2) Legal Grounds (certifying warranted by existing law or extension of current law)
· 11(b)(3) Factual Contentions have evidentiary support (or will have support after reasonable opportunity for further investigation/discovery)
· SANCTIONS: 11(c):
o Must be made separately from any other motions
o Must serve motion 21 days before filing in court
o Safe Harbor: if other side withdraws or corrects the challenged document, can’t file motion with court
o 11(d) DOES NOT apply to discovery requests, responses, objections and motions under rules 26-37
DISCOVERY
PREPARATORY DEVICES
· 26(f)(3) Discovery Plan/Conference: parties confer and design “discovery plan” shortly after suit is filed (submit plan to Ct. in time for consideration for 16(b))
· 16(b) Mandatory Scheduling Orders: Join other parties and amend pleadings, file motions, complete discovery
· 26(d) Formal discovery can only occur after scheduling conference although initial disclosure may occur before, during or after
REQUIRED DISCLOSURES (must provide voluntary, first is big deal of three)
· 26(a)(1) Initial Disclosure: ID People, ID docs/ESI which will support case at trial, P calc damages/D prov insurance (w/in 14 days after 26(f) sched conf)
· 26(a)(2) Expert Testimony: Must ID expert witnesses and provide written reports, which includes opinions to be expressed at trial and basis and reasons for them as well as facts or data used in forming opinions. (At least 90 days before trial)
o Also must include exhibits used to support witness testimony, compensation and other cases expert has been witness at.
· 26(a)(3) Pretrial Disclosures: Must tell other side EVERYTHING, which will be relied on at trial. (At last 30 days before trial)
DISCOVERY TOOLS
· Rule 30 (oral) / 31 ( written) – Deposition: max 10, can only be deposed once (be strategic w/ leave to amend),
· Rule 33 – Interrogatories: “come and get it” if burden same for both to determine answer to interrogatories requires reviewing biz records
o Can provide a predicate for MSJ based on non-existence of evidence supporting critical part of P’s case
· Rule 34 – Requests to Produce NO 33(d)-esque feature (come and get it yourself) but 34(b)(2)(E)(i): turn over as kept in usual course of biz
o Must “describe with reasonable particularity each item or category of items to be inspected)
· Rule 35 – Medical Examination (requires court order)
· Rule 36 – Request for Admission
· ALL DEVICES: must be supplemented if incomplete/incorrect response under rule 26(e)
SCOPE OF DISCOVERY (info discoverable if):
· Relevant: 26(b)(1)
o Evidence is relevant if it makes fact of consequence more or less likely to be true (fact is of consequence in determining action) (Fed. Rule of Evid 401) (Davis v.
rmation need not be in an admissible form at the SJ stage, rather, it simply must be information that could be reduced to admissible evidence at a trial.
§ No. If the party bearing the burden of proof has not supported its claim with such factual information, the party has failed to meet its burden and SJ should be granted.
§ Yes. If so, proceed to the next question.
o Persuasive Evidence – does the factual information presented by the party bearing the burden of proof leave some elements of the claim subject to speculation in the face of more likely lawful explanations of the D’s challenged conduct? (Matsushita v. Zenith)
§ Yes. If the party’s evidence does not establish a plausible, non-speculative claim—particularly in the face of alternate lawful explanations of the D’s conduct—a court may determine that the evidence is insufficient to create a genuine issue of material fact and enter SJ.
§ No. If the party’s evidence supports each element of its claim, leaving nothing to speculation, then summary judgment should be denied, provided that the claim is established to the degree required by the applicable standard of proof.
o Standard of Proof – does the party’s evidence prove its case to the degree required under the relevant evidentiary standard that would be applicable at trial? (Anderson v. Liberty Lobby, Inc.)
§ No. If not, SJ should be entered against the party.
§ Yes. If so, SJ should NOT be entered against the party.
12(b)(6) vs. SJ:
· 12(B)(6): assumes the truth of everything stated in the complaint.
· SJ: looks at evidence and says party does not have enough for a reasonable person to believe their story. Does not determine factual disputes. Says that evidence, even if true, would not support a jury finding.
· 12(b)(6) / 12(c) do NOT look at evidence, whereas SJ DOES look at evidence
o JMOL: same thing, but only after evidence presented at trial
SUMMARY JUDGEMENT RULE 56 (D WANTS)
TIMING: Any time up to 30 after close of discovery (as long as sufficient rule 11 investigation has occurred)
STANDARD: Any party can win at trial by showing there is no genuine dispute as to any material fact and movant is entitled to judgment as a matter of law
· Evidence viewed in light most favorable to nonmovant (Addickes) à Judge CANNOT WEIGH THE EVIDENCE
BURDEN OF PRODUCTION: Movant needs SOME kind of showing in discovery or pleadings to prompt a response from the nonmovant (Celotex)
· If nonmovant would bear burden of proof at trial, that party also bears burden of offering proof to support its claims in the face of a SJ motion (Celotex)
o Movant may simply point to the record and show that it fails to support nonmovant’s claim and in response, nonmovant must show “specific facts” showing that there is a genuine issue for trial.
o Judge must be guided by substantive evidentiary standard the jury will have at trial, whether prepond of evid of clear and convincing evid (Anderson v. Liberty Lobby, Inc.)
· Nonmovant must then provide evidence beyond a “slightest doubt” in order to survive the SJ. (Matsushita lack of motive, implausibility used to dismiss plaintiff’s case via SJ) à gives courts some license to consider persuasiveness of proffered evidence when making SJ determinations
· Disbelief evidence does not satisfy burden of production (Dyer)
o If your only evidence is a witness for the other side that a jury might think is lying, isn’t enough
§ If we allowed this, SJ could never be granted, and it would make trial judge’s decisions unreviewable
· Demeanor evidence IS ALLOWED to satisfy burden when the critical issue is a defendant’s state of mind (because the jury should have chance to observe the defendant on the stand). (Poller).
TYPE OF EVIDENCE ALLOWED:
· Affidavits are allowed
· Sham affidavits (attempts to create an issue by submitting an affidavit that contradicts prior discovery) DO NOT satisfy the burden of production (Burns)
· Scott (court can judge probative impact of video evidence during SJ – video evidence can’t be disbelieved.)
Some discovery needed before an SJ Motion
· Otherwise you couldn’t certify via Rule 11 if you believe in your motion
Rule 37(c)(1) = can be used to claim nonmovant and cannot use non-disclosed evidence to support an SJ defense
· Must show that withholding the evidence prejudiced the movant somehow or wasn't substantially justified
· Many courts now view loss of ability to resolve case at summary judgment as a harm itself
RESPONSES TO A SJ MOTION (likely that the P will have to do all three or risk loss during SJ – inherently puts P in defensive position and forces them to “show their cards” before they may have wanted)
· Say movant didn't meet burden of production (didn’t meet initial showing)
· Add additional information in response [possibly flaunting 37(c)(1)] OR say current evidence sufficient (E.g. What P in Celotex did when she gave three pieces of evidence)]
· 56(d) – ask for more time to get info
THINGS THE P WANTS
· 12(d) à 56(SJ) (opens doors to)
· 55 Default
· 12(f) motion to strike affirmative defense à 12(c) motion for jdgmt on the pleadings
THINGS THE D WANTS
· 12(b)(6) motion to dismiss for failure to state a claim
· 12(f) if P seeks legal relief which simply isn’t legally available (e.g. punitive damages in a K case)
· Involuntary Dismissal 41(b)
· SJ (BUT discovery)
· 50(a)
· 50(b)
