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Civil Procedure I
University of Connecticut School of Law
Lindseth, Peter L.



FALL 2011

Procedure and Court Powers

Moving through a trial.

· An action is commenced by the filing of the complaint with the court (FRCP 3)

· A plaintiff serves notice upon the defendant

· The defendant answers the claim, and offers up any cross claims and defenses (FRCP 8c /13)

· All possible pre-trial motions are filed. (motion to dismiss, SJ, venue SMJ, PJ)

· After all pre-trial motions are filed and your case survives, both parties move on to “Discovery.”

· Opening Statements (Plaintiff goes first)

· Direct Examination of each witness by the P (P’s witnesses) (D can file SJ)

· Cross Examination of each witness by the D

· Direct Examination of each witness by the D (D’s witnesses) (P can file SJ)

· Cross Examination of each witness by the P s (P or D can file SJ)

· Closing Statements (DV)

· Judge will instruct the jury

· Jury will come to a verdict- later a judgment.

· Parties may file for an appeal, JNOV, or a new trial.

Collateral Bar Rule

· You must follow a court order, even if you believe it is unconstitutional. You must obey it, and the fight the constitutionality of it in court.

o This is what they should have done in Walker v. Birmingham

§ Instead of violating the injunction to stop them from demonstrating on Good Friday, they should have followed the injunction, and then brought a suit against the city contesting the constitutionality of the statute.

§ The petitioners changed the procedural posture of the court by violating the ordinance, and not the statute. If they had violated the statute, they could have said it was unconstitutional, but they couldn’t contest the constitutionality of the ordinance.

§ The court believed that there is a procedural value at stake, WE MUST ALL FOLLOW PROCEDURE!

· Take AwayàCollateral Bar Rule and Procedures Relating TRO are good examples of good procedural rules that can have real substantive consequences. Procedure can impact your rights. There is a fine line between substantive and procedural law, which can be hard to draw.


7(a) only these pleadings are allowed

1. A complaint

2. An answer to a complaint

3. An answer to a counterclaim designated as a counter complaint

4. An answer to a cross claim

5. A third-party complaint

6. An answer to a third-party complaint

7. If the court orders one, a reply to an answer

Purposes of a pleading

· They should give notice

· They give merit, filter out frivolous cases

· They give the claim structure, define issues, and discovery

· They encourage settlements

Claims must be “well-pleaded.”

· You need to know the SUBSTITIVE elements of the law to know whether it is well pleaded procedurally or not. à If a complaint isn’t “well pleaded”, you can file a 12 (e) motion or a 12(b)(6)

8(a) Claim for Relief

(1) Complaint must show that the court has a subject matter jurisdiction

(2) Short and plain statement of the claim. (Pleader is entitled to relief)

(3) Make a demand for relief

Money, injunction

Notice pleadingà Conley

Enough to give the other party notice- let them to know what was going on. Just a short and plain statement of the rule

Plausibility PleadingàTwombly and Iqbal (Iqbal extends Twombly to all civil cases)

Together these two boil down to these three things

1. The court will ignore conclusions of law- no conclusory statements

a. If the plaintiff states something that is a conclusion, the court will ignore it

2. The plaintiff must plead facts that will support a plausible (not possible) claim

a. “Plausibility” of facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement—has to be above the speculative level, you need facts that say it is plausible to claim relief.

3. The court will use its own experience and common sense to determine is a claim is plausible

a. Gives a lot of discretion to the trial judge

In Twombly, the plaintiff only showed correlated or parallel conduct, not conspiracy. The complaint didn’t allege any facts.

In Iqbal “it just happens to be that discriminatory conduct post 9/11 happened to be against Muslim men, that doesn’t mean that the defendant was discriminatory” (Defense claims)

**Results in a lot more challenges to the pleadings.

Notice pleading was a much more liberal standard, compared to the new plausibility pleading standard.

Justice Souter, who wrote the opinion in Twombly, dissented in Iqbal.

In Twombly parallel conduct was the only plausible alternative, so it was ok to dismiss, but in Iqbal, there were many possible alternatives to the discrimination. —I think?

Conley (Notice Pleading)

Twombly (Plausibility Pleading)



A complaint should not be dismissed for failure to state a claim unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief.

A plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.

Extends to all civil actions.

Test/Analytical Approach

Standard motion for failure to state a claim, assuming all facts are true, is there a basis of law, where relief can be granted?

Standard test applied only to non-conclusory allegations. You assume all the facts are true excluding conclusory statements.


Notice pleading is a liberal pleading standard.

Lawyers using large class action suits to make lots of money.

Exceptions- 9b and 9g

9b- allegations of fraud or mistake, must be made with particularity (dates, what he said, you need more detail…in your pleading)

PolicyàMakes sense here, but should they have extended to all civil cases, rather than keeping it limited to fraud or mistake? (Lower courts want to reduce their dockets.)

9g- allegations of special damage, must be given with specificity (doesn’t normally flow from an event, not an ordinary situation)


firmative response in your answer or your waive the right to file it-some circuit courts do allow it, as long as it doesn’t display and prejudice to the P.

**A plaintiff doesn’t have to respond to an answer unless the court requires it, nor does he have to reply to an affirmative defense.

iv. Counterclaims/cross claims should be included in an answer (13(a)(c))

1. These have to be filed within 14 days.

2. If the counterclaim arises out of the same transaction or occurrence, it is a compulsory counterclaim and it has to be pleaded or else it will be barred.

v. Do I want to implead a third party? Add Party? Reduce the number of parties? Do I want a Jury Trial? These should also be included in an answer.

You want to answer or file your motions early, so as not to give your opponent a chance to amend their plea.



FRCP 15 controls whether one can amend a pleading or not.

15A: Amendments before Trail.

1. A plaintiff has 21 days to amend a complaint, without asking the court, as a right.

a. You have 21 days after opposing party responds. Possible 42 days.

2. You can amend a complaint “when justice so requires” with the permission of the court or opposing council. If the court lacks SMJ over the new claims, that would be a basis for denying leave to amend.


a. Unreasonable delay

b. Prejudicial towards the preparation of the opposing party

c. Raised in bad faith, cloud the issue or make the other side look bad

d. The new claims are Futile

15B:Amenments During/After Trial

Not our focus.

15C: Relation Back to Amendments (Important)

1. “Relation Back”à If plaintiff filed a complaint within the statute of limitations, but then amended it once the statute of limitation was up, it would be considered “related back”, and would be allowed.

a. The Statute must allow relation back

b. Claims/defenses: the amended claim must pertain to the conduct, transaction or occurrence in the original pleading.

c. Parties: the amended claim must pertain to the conduct, transaction, or occurrence in the original pleading- same claim, new party, they had notice

i. The new party had notice according to the rules of 4m.

ii. Knew/should have known that the action would have been brought against them if not for the plaintiff’s mistake.

Examples of when a party knew or should have known

· Knew about it

· Shared attorney

· Identity of interestà sufficiently close to the parties involved and should have known that they would be involved.