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Civil Procedure I
University of Connecticut School of Law
Lahav, Alexandra D.

Lahav – Civil Procedure Outline
Fall 2010

Introduction: Procedure and Court Powers
1.      FRCP 1
a.       Governs civil procedure in US district courts in suits of a civil nature; should have just, speedy and inexpensive determination of every action
b.      Trans-substantive rule
i.      Applies to all substantive causes of action in civil law (breach, strict liability)
2.      FRCP 65(b)
a.       Modern Rule; allows for ex parte injunction; need to show made an effort to reach other side to file for an injunction; need to try to give notice
b.      TRO can be issued without written without oral notice if
i.      Show immediate irreparable injury will result before heading opposition
ii.      Efforts to give notice and why should not be required
c.       City of Birmingham
ii.      Enforced contempt citations against individuals who violated state courts TRO
1.      City got ex parte injunction
a.       Only one party before court; make argument and granted injunction; served leaders
d.      SC enforced collateral bar rule
i.      If violate injunction; can’t challenge validity (constitutionality) of injunction in subsequent (contempt proceeding) pleading, unless jurisdictional argument
1.      Exception
a.       If meet with delays or frustrations of their constitutional claims
Getting the Lawsuit Rolling
3.      Pleadings
a.       FRCP 3, 7(a), 8, 9(b), 10, 12(e) Form 11
4.      FRCP 3
a.       Civil action is commenced by filing a complaint with the court
5.      FRCP 7(a)
a.       Only pleadings allows (complaint; answer to a complaint; answer to a counterclaim designated as a counterclaim; answer to a cross claim; third-party complaint; answer to a third-party complaint; a reply to an answer (if court orders one)
6.      Rule 8
a.       General Rules of Pleading
i.      (a); Pleading that states claim for relief; short and plain statement showing jurisdiction; entitled to relief and relief sought
1.      Short and plaint statement of facts showing entitled to relief
ii.      (b); must admit or deny allegations asserted against; in short plain terms defenses to each claim asserted; must be done in good faith
iii.      (c); affirmative defenses
7.      Rule 9(b)
a.       Alleging fraud or mistake; must state circumstances constituting fraud or mistake; malice, intent, knowledge and other conditions may be alleged generally (on reason and belief)
8.      Rule 10
a.       What needs to be written on documents
9.      Rule 12(a)
a.       21 days after being served with summons and complaint to respond
10.  Rule 12(e)
a.       Motion for more definite statement if vague and ambiguous and can’t reasonable prepare a response; motion must be made after filing a responsive pleading and must point out defects and details desired; if court issues have 14 days after notice of order; if not, court may strike pleading or issue any other appropriate order
11.  Lawsuit
a.       Complaint
i.      Frames dispute and what is precluded
ii.      Not dismissed with prejudice; can refile a new complaint
b.      Defendant can do:
i.      Nothing; court issues default judgment
ii.      Answer; submit document admitting or denying each allegation; can include counterclaims
1.      Rule 8
2.      Rule 10; each has a separate paragraph
3.      Rule 13; counterclaims
iii.      Motion to Dismiss
1.      Before answer; only looking at what is alleged by P in complaint
2.      Rule 12(b)
a.       Complaint does not state a claim
c.       Discovery
d.      Summary Judgment
e.       Trial
f.       Post-trial motions
g.      Appeal
12.  Conley v. Gibson
a.       Holding; complaint needs to state a “conceivable” set of facts to support legal claims; should not be dismissed “unless it appears beyond a doubt that P can prove no set of facts in support of his claim which would entitle him to relief”
i.      Overruled
13.  Bell Atlantic v. Twombly
a.       Notice pleading; needs to give other party adequate notice of the action for everything (Rule 8(a)); heightened pleading for alleging fraud or mistake (Rule 9)
b.      Anti-trust case; substantive doctrine of anti-trust; must show “plus factor”; something else that shows conspiracy other than parallel conduct
c.       Held; did not show sufficient information to entitle relief; claims are only valid if they allege facts that plausibly suggest a conspiracy; must be more than just conceivable
i.      Plausibility pleading; factual allegations must be enough to raise a right to relief above speculative on assumption that allegation in complaint are true
14.  Ashcroft v. Iqbal
a.       If allegations are conclusory, it is not sufficient
b.      Heightened “plausibility” standard of Twombly; allowed more cases to be screened out at 12(b)(6) stage
15.  Rule 8
a.       General Rules of Pleadings
i.      Claims for relief
ii.      Defenses; form of denials
iii.      Affirmative defenses
iv.      Pleading to be concise and direct; alternative statements; inconsistency
v.      Construing pleadings
b.      Rule 8(a)
i.      Claims for relief
1.      Short and plain statement of grounds for court’s jurisdiction
2.      Short and plain statement showing entitled to relief
3.      Demand for relief seeking
ii.      Must meet each element
16.  Complaint
a.       Gives notice to defendant of what lawsuit is about; would be unfair without notice
b.      If not mentioned in complaint; can’t bring up later in lawsuit
c.       If not dismissed with prejudice; can re-file a new complaint
17.  Conley v. Gibson
a.       Holding
i.      A complaint onl

hen their case by compelling the defendant to produce evidence during the discovery phase.
c.       The FRCP does not entirely eliminate code pleading. The FRCP still requires that certain pleadings state facts with particularity. An example is Federal Rule 9(b) which states that “in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” This is considered a special pleading rule. The purpose of this rule is to help prevent a person from abusing the judicial process to defame another without spelling out the specific circumstances surrounding the alleged fraud. Additional special pleading rules are set out in Rule 9 of the Federal Rules of Civil Procedure.
d.      The leniency of the modern notice pleading system often resulted in poorly-drafted complaints with vaguely phrased, incoherent and conclusory allegations. The Supreme Court eventually responded in 2007 with a decision in Bell Atlantic Corp. v. Twombly, and again in 2009 with a decision in Ashcroft v. Iqbal, which together imposed strict new standards for specificity and “plausibility” in pleadings.
e.       Iqbal reaffirmed and broadened Twombly's ruling that a court need not accept a “legal conclusion couched as a factual allegation” or “naked assertions devoid of further factual enhancement.” In Twombly and Iqbal, the U.S. Supreme Court sought to clarify the deceptively simple mandate of Federal Rules of Civil Procedures 8(a)(2), which states that a “pleading that states a claim for relief must contain…a short and plain statement of the claim showing that that the pleader is entitle to relief[.]”
f.       The Court interpreted Rule 8(a)(2) in Twombly to mean that a complaint must contain sufficient factual allegations to allow a district court to find that the claim is plausible. The Twombly court criticized the modern notice pleading standard derived from the landmark 1957 Conley v. Gibson decision, which had ruled that a complaint should not be dismissed at the pleading stage, “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”[6] g.      It is still not clear whether Iqbal will reduce federal court caseloads by allowing frivolous or weak lawsuits to be thrown out at the pleading stage, prior to the commencement of potentially expensive discovery. The Twombly and Iqbal decisions have the potential of denying plaintiffs with meritorious claims their day in court by raising insurmountable hurdles at the pleading stage
h.      Me
i.      Plausibility regime is more fact pleading than noticory pleading; need to be more specific
ii.      Ex.; false imprisonment