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Civil Procedure I
University of Connecticut School of Law
Rutherford, Alanna

Civil Procedure – UCONN Law – Prof. Rutherford Fall 2011


Complaint – Short and plain statement for relief and entitlement for such relief

– Concise and put as many facts as possible to avoid dismissal (esp fraud or anti-trust)

– Sets out what entire remainder of case can entail

– Per R.15(a) – can amend before an answer is filed

– R.18 Joinder of claims 0 same trans or occurrence

Answer – Bring up EVERYTHING or you lose the chance to use it later on (narrow issue at dispute):

– Defenses (12)(b), counter/cross claims (13), admissions/denials (8)(a), affirmative defenses (8)(c)

Joinder – P must join all claims arising out of the same transaction or occurrence at once

– Applies even when there are state and federal claims (possible jurisdictional issues)

Morality of Lawyers and adversarial system

– Zealously represent client…. 9/30 notes

– R. 11 – Lawyers must conduct factual and legal investigations before filing suit

o Sign to show certified knowledge

§ Not harassing, valid claims, facts are reasonable, actual belief in suit

o (b) representation to the court: by signing pleading, lawyer shows:

§ Not presented for improper purpose, warranted by law, facts have support, and denials of fact are based on reason.

Rule 1 – Scope and Purpose

Just, speedy, and inexpensive determination of every action and proceeding

R.3 – File a Complaint commences action: Provide notice to crt and D of issues and claims against them

R.8 – Rules of PLEADING:

A) Claim for relief

Short & plain stmnt of claim Ground for Jurisdiction

Short & plain stmnt of claim showing entitlement to relief

Relief sought

B) Defenses

Response includes defenses to each claim and admit/deny

Respond to the substance

C) Affirmative Defenses

– Bring up all in answer or lose the right to them in the future

– Do NOT have to be consistent; can defend on multiple grounds

D) Concise and Direct; Alternative Stmnts; OK to be inconsistent (PUT DOWN ANYTHING TO DEFEND)

R.9 – Pleading Special Matters (like fraud)

A) Authority to SUE, legal existence – burden on party denying

B) Fraud or mistake STATE WITH PARTICULARITY because of difficulty of proof in fraud

C) Conditions Precedent – show precedent applies

D) Official document or act that shows legality

R.10 – Form of Pleadings

A) Caption with name, title, file #, etc and all pleadings and motions under R.7

B) Numbered Paragraphs

R.12 – Defenses and Objections


A) 1. D must serve answer w/in 21 days unless waived under R.4d; then 60 days

2. Answer counter-claim w/in 21 days

3. US officials – w/in 60 days

4. EFFECT OF A MOTION: 14 days in most cases

B) How to present defenses (Req’d for Motion to DISMISS):

Assert each defense to a claim in response

6. Failure to state a claim upon which relief can be granted (Conley)

E) Motion for more definitive statement (Bower)

R.13 Counter/Cross Claims


A) One can amend a pleading before answer is received

R.17 – Real Parties in Interest

Requires name of party (or partnership) who has the right sought to be enforced

R.18 – Party may join a original claim with any other claim against the same party

DOES NOT REQUIRE THE SAME transaction or occurrence

28 USC §2072 – Rules of Procedure and Evidence; Power to prescribe

a) Supreme Court has power to prescribe rules

b) Rules shall not modify any substantial right

c) Define finality of dis crt ruling for appeal purposes

28 USC §2073 – Method of prescribing

a) Judicial conference prescribes & may authorize committees to recommend rules

Get rule with explanatory note and written report to explain action

US Constitution

Amend. V: DUE PROCESS, double jeopardy, right to one’s property

Entitled to release unless criminal charges are brought… can’t hold without charging

Amend. VIII: Excessive fines shall not be imposed

– Look to: (1) Reasonableness of D’s conduct (2) Ratio of award to actual/potential harm (3) Compare to civil/criminal penalties of comparable conduct

– Carey v Piphus (9/27 p.123)

o 14th amend due process issues; found to be in violation

o However, NO PROOF OF HARM DONE; damages of $1 awarded… can’t say violation of rights has monetary value

Amend. XIV: Due process; right to be heard for the protection of life, liberty, and property

Equal protection of the laws, representation,


– Injunctive – Forces an action to be stopped or keep going (Goldberg v Kelly (8/28))

– Declaratory Judgment – judge makes decision as to what is right/wrong (Goldberg v Kelly (8/28))

Due Process (8/28) – P.12

– Amend 14 – State application -Right to be heard to protect Life, liberty, and property

– Amend 5 – Federal application – Appropriate charges and right to be heard

o What constitutes property (14th)? Goldberg v Kelly – Welfare is property

o 3 factors of D.Process (5th)– Mathews v Eldridge (private interests, risk of error, govt intrst)

o Right to be heard before held without charges (5th) – Hamdi v Rumsfield

§ OK to initially detain enemy combatant, but to hold must find new law; dissent says 5th amendment applies and must bring charges

Failure to State a Claim (9/11) – P.13

– R.8(a): 3 requirements; short and plain (1) stmnt of entitlement to relief (2) relief sought (3) jurisdiction

– Fails to state law, fails to state facts, or facts as shown don’t show cause

– R.12(b)(6) – Failure to State Claim upon which relief can be granted

o Fraud R.9(b) – Must state with particularity (heightened standard)

§ Conley Majority opinion, must be beyond doubt that P can prove “no set of facts” that would show entitlement to relief… doesn’t matter if there is a lack of facts in the initial complaint

§ Elliott says heightened standard per R.9(b)

§ Bell Atlantic decisive case, but dissent taken more seriously; cant dimiss because they didn’t prove it in claim, parallel conduct could be fraud.

– R.12(e) – motion for more definitive stmnt

o Bower

– Principal architect not good enough for claim against one individual – Ashcroft; focus on discovery

Real Parties in Interest (9/13) – p.14

– R.10(a) – Failure to identify Plaintiff – Doe v US Life Insurance – no disadvantage to D here

– R.17(a) Requirement to name party against whom relief is being sought


nce – intentional or negligent withholding or destroying of relevant evidence

o -Teague v Target Corp (9/30 p.390) Destorys computer after suit had started

– Shifting costs of discovery – tough to do


o Quinby v WestLB AG (9/30 p. 392) Didn’t shift all costs b/c they had the ability to control the costs, but there were easier ways to obtain it so some costs were shifted

Right to Jury Trial and Judicial Control of Results (10/2) p.19

7th Amend. – Right to trial by jury for cases of common law (>$75 by way of USC 2832)

o Local no. 391 v Terry (10/2 p.442 Jury trial award with partial law and equitable issues

R.56 – Summary Judgment

– No genuine issue to any material fact and no reasonable jury could find otherwise

R.50 – Judgment as a matter of law

(b) Renew motion after trial – judgment notwithstanding the verdict (judge goes over jury)

(c) Grant NEW trial – verdict was against weight of all evidence

Judge answers what jury usually might because no reasonable jury could find otherwise

– Adickes v SH Kress Co (10/2 p. 466) Summary judgment denied

o There was a possibility that a conspiracy did exist BURDEN OF PROOF IS ON D

– Celotex Corp v Catrett (10/2 p. 476) Summary judgment granted

o P did not meet burden of proof in claim; DIFFERENT and conflicting with ADICKES

o Burden of production v burden of persuasion

– Scott v Harris (10/2 p. 489) Grants summary judgment

o Crt says no genuine dispute b/c of video

o Dissent says they took this too far and should not have granted sum judgment

R.41 – Dismissal of Actions

R.59 – Motions for a New trial – extreme prejudice

R.60 – Motions to vacate judgment (b) mistake or neglect, evidence issue, fraud, any other reason…

Galloway v US (10/2 p. 510) 8 yr gap shows lack of evidence to prove disability…

Brandon v Chicago Board of Education (10/2) lawyer was negligent in NOT acting, cant vacate

Jurisdiction (10/10) – p.20

3 constitutional requirements: (can be challenged at any time during proceeding)

1 – Subject matter – issue at stake; all STATE unless CONSTITUTIONAL OR FEDERAL STATUTE

2- Personal Jurisdiction – a person TERRITORIAL restrictions mainly

3 – Venue (10/16) – Proper court within the correct subject matter and territory

VENUE 28 USC §1391 –

a)Diversity Citizenship – Reside – Substantial part of events – subject to personal if nothing else

b) Where D may be found… NOT subject to personal

§ 1404 – Change of Venue: For convenience, may transfer

§1406 – Cure or Waiver of Defects: Shall dismiss is wrong venue