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Civil Procedure I
University of Connecticut School of Law
Land, Molly K.

 
CIV PRO FALL 2015 OUTLINE
LAND

1.      Complaints
a.       Rule 8: Requires short and plain statement of the claim showing that the pleader is entitled to reliefà A set of circumstances that if true, would entitle pleader to relief
i.            Rule 8 is not the only checking function—need factual allegations in Complaint.  Rule 11
b.      Iqbal
i.            ID and disregard conclusory allegations
ii.            Assume truth of remaining allegations
iii.            Determine if those allegations ‘plausibly’ suggest entitlement to relief
1.      Not all of the allegations in a complaint are entitled to a presumption of truth
2.      Two Step Process:
a.       Which allegations are entitled to the presumption of truth (none that are conclusory)
i.      Conclusory: Threadbare recitals of the element, legal conclusions, naked assertions, statutory language, formulaic, legal terminology to describe conduct, fails to answer who what when where why how, recruits ultimate facts rather than predicate facts
b.      Assume the truth of the remaining, determine if they state a claim for relief
c.       Notice Pleading: Focus less on the form and more on the substance, all you have to do is describe the set of circumstances that if true π would be entitled to relief, means that fewer cases are dismissed
d.      Errors
i.            Not cognizable, Dioguardi
ii.            Not enough facts, Conley, Leatherman
e.       Plaintiff’s Burdens
i.                        Plead Correctly in Complaint
ii.                        Burden of Production: Sufficient Evid to permit a reasonable person to find that each to element of COA is true
iii.                        Burden of Persuasion: Persuading the finder each element is true

f.       Cases
i.            DioguardiàNo need for magic words
1.      At this stage, all π has to do is say what happened, if the circumstances were true, would they have a claim? Could they possibly succeed at trial? In order to do this, must assume alleged facts are true—Cognizablility. 
2.      Not an issue of proof, no finding of liability, simply did π do what they needed to do
ii.            Conleyà Have enough facts for a claim
1.      Court does not need the who what when where details, just need enough for notice and what πs are complaining of
iii.            LeathermanàIf Rule 9(b) does not require specific pleading of a certain type of claim, the court cannot interpose a higher standard of specify
iv.            Ashcroft v. Iqbal
1.      See above for Iqbal two-step
2.      Results of Iqbal
a.       Being used to make it harder on πs
b.      Invitation to the court to evaluate the plausibility of claims
3.      To Make Arguments
a.       Compare language from other sources either found to be conclusory or not
b.      Arguments about construction of rules (Rule 9)
c.       Arguments about notice
d.      Needing discovery does not justify failure to comply with Rule 8, but do not make policy arguments
2.      Responding to the Complaint

a.       ∆ can answer or file motion under Rule 12 or both
i.            Can file only 1 pre-answer Rule 12 motion (Rule 12(g))
ii.            Must raise defenses under Rule 12(b)(2)-(5) in either answer or motion, which is first, or it’s waived per Rule 12(h). 
iii.            ∆ must answer if motion is denied
b.      Rule 12 MTD
i.            Wrong court Rule 12(b)(1)-(3) **Include in pre-answer or answer or lose them under Rule 12(h)(1)
ii.            Problems with process Rule 12(b)(4)-(5) **Include in pre-answer or answer or lose them under Rule 12(h)(1)
iii.            Failure to state a claim Rule 12(b)(6)
1.      Rule 12(b)(6): Challenges sufficiency of the complaint
a.       Court looks at the complaint.  Evaluate to see if π has stated a claim that would give rise to reliefà all allegations are summed true to draw inferences favorable to the complaint, judge can dismiss after
b.      May be dismissed for failure to state a claim when circumstances alleged are not considered a wrong by the substantive law, even if everything alleged in the Complaint actually happened exactly how the π described ità challenging the sufficiency of the complaint
c.       Π alleged insufficient facts (Dioguardi, Conley, Leatherman, Iqbal)
iv.            Failure to join a necessary party for resolution of suit under Rule 19 Rule 12(b)(7)
c.       Types of Errors/ How to prevail
i.            Even if all the allegations were true, law does not provide relief for this harm
1.      Not cognizable / law does not provide you with a claim
2.      Failed to allege an element
3.      Law does not apply to you
4.      Res Judicata Bars your claim
ii.            Not enough Facts
1.      Spectrum
a.       ∆ was negligent
b.      ∆ was driving negligently
c.       ∆ was speeding
iii.            Summary of How to Prevail:
a.       No legally cognizable claim
b.      Have legally cognizable claim, but did not please one or more elements of the claim
c.       Insufficient facts for claim
d.      Rule 12(e): Motion for a More Definite Statement **Does not dispose of the lawsuit
i.            Use when complaint is vague and ambiguous and cannot be answered
ii.            Rarely used
iii.            Needs to be included in pre-answer or else waived
e.       Rule 12(f): Motion to Strike **Does not dispose of the lawsuit
i.            Used to respond to prejudicial material in the complaint
ii.            Needs to be included in pre-answer or else waived
f.       Rule 12(g): Can only file ONE pre-answer motion
g.      Rule 12(a)(4): If pre-answer motion is denied you have 14 days to file an answ

      Rule: Denying an entire paragraph without saying why is too general; if π had known, would have sued the correct party
3.      Rule 8(b) interpretationà in good faith, can admit or deny particular sections, must put π on notice of what is contested
iii.            McNary MTD
3.      Burdens
If the party with the burden fails to meet:
The opposing party can end litigation via:
And the decision maker is:
èBurden of Pleading
èMotion to dismiss, Rule 12(b)(6)
èJudge
èBurden of Production
èMotion for Summary Judgment
èJudge
èBurden of Proof
èDecision on Merits
èJudge or Jury
a.        
4.      Amending Pleadings
i.            Rule 15à Purpose—where new facts and previously unpleaded COAs and defenses emerge
b.      When:
i.            Once as a matter of right (before responsive pleading is served)
1.      Complaintàonce before the reply is served
2.      Answer/MTDàonce within 21 days after the ∆ has served it Rule 15(a)(1)
ii.            After that, with leave of courtàif you cannot amend as a matter of right you need consent and permission from the court
1.      Leave granted at court’s discretion if justice so requires Rule 15(a)(2)
2.      The burden is on the party OPPOSING the motion to show WHY the amendment should NOT be permitted by using the justice factors:
a.       Prejudice to ∆ **Most Important**
b.      Reason for delay
c.       Futile (no useful result/ pointless)
d.      Bad faith
e.       Burden on system
c.       Relation Back under Rule 15(c) à Asking Court to pretend new claim or party has been there the entire time
i.            Only relevant if statute of limitations has expired
ii.            Different standards for new claims Rule 15(c)(1)(B) and parties Rule 15(c)(1)(C)
1.      Claims—same T/O that was set out in original pleading Rule 15(c)(1)(B)
a.       Whether new claims are from the same T/O as stated in original complaint:
i.      Causal relationship
ii.      Related claims (unrelated claims completely change the scope)
iii.      Do you they make convenient/ efficient trial unit? (Yes, if there is a factual overlap)