Select Page

Civil Procedure I
University of Connecticut School of Law
Bechky, Perry


A. Common Law Pleading
q “Writ system” required invoking writ for particular claim of action.
q Primary method for putting Ds on notice and factual development.
B. Code Pleading
q Pleadings simplified to give notice and facilitate decision on merits.
q Fact development shifted to liberalized discovery process.
q Emphasized pleading facts – “a statement of the facts constituting the cause of action, in ordinary and concise language.”
q Requires more detailed allegations.
C. Federal Rules (FRCP)
q Pleadings function to give notice and provide mechanism to test legal sufficiency of a claim (same as Code).
q “Claims need to be plausible, not just conceivable” – (Bell Atlantic Corp. v. Twombly).
q Do not require as much factual detail in pleading – “short and plain statement of the claim showing that the pleader is entitled to relief.” – (Dioguardi v. Durning)
q General purpose is to put D on notice.

II. Complaint – Rule 8(a)
q Most Code and FRCP provisions governing complaints are substantially similar
1. Short and plain statement asserting ground for court’s jurisdiction
q Must allege SMJ for federal courts (don’t need to assert PJ)
q Many states require showing that trial court selected was proper
q Some states require allege PJ and proper venue if D is nonresident

2. Short and plain statement of claim for relief
qMust be legally and factually sufficient to support a judgment for P
(a) Code states: “statement of facts constituting a cause of action, in ordinary and concise language, w/o repetition.” “facts” = “ultimate facts”, which courts have difficulty defining.
(i) allege facts too specifically = “pleading the evidence”
(ii) allege facts too generally = “pleading conclusions of law”
q for both, court will sustain D’s challenge (special demurrer)
(b) FRCP states: avoids term “’facts”.
(i) does not require stating “with particularity” except:
q Rule 9(b) – cases of fraud or mistake
q Rule 9(g) – claims for special damages (damages that don’t flow naturally from an event)

3. Demand for judgment
q Demand does not limit P’s recovery, P can get whatever proves at trial
q Generally pleaded as lump sum, certain kinds need plead with particularity (e.g. special damages, equitable relief)
q P can state specific dollar amount or “damages in an amount to be shown at trial”

C. Defensive Response – Rule 12

Timing (for both answer and motion):
q must be served within 20 days after being served with process – Rule 12(a)(1)(A)
* if D is United States, it has 60 days to do so * – Rule 12(a)(3)
q if service waived, must be served within 60 days from when request waiver sent – Rule 12(a)(1)(B)

PERSONAL JURISDICTION (PJ) – Answers the question of in what state can P sue? The test for personal jurisdiction is the same in federal court and state court. A federal court will only have jurisdiction if the state in which it sits has personal jurisdiction. A court can either have power over the D or the D’s property to have PJ.

q Specific jurisdiction is when the P sues for a claim that arises in the forum.
q General jurisdiction is when the P sues for a claim that arose anywhere.

I. IN PERSONAM JURISDICTION (power over the D’s person) – A judgment from a court creates a personal obligation on the D and entitles the P to full faith and credit (FFC) in all other states. The Due Process Clause tells states how far t

or personal jurisdiction. The International Shoe test says “If he be not present” then the minimum contacts test will be applied.

q Burnham was a transient jurisdiction case (obtaining jurisdiction by serving D while temporarily physically present in the state) because D was served process for a cause of action unrelated to his brief presence in the state. Here the court split 4-4 with one side suggesting that presence alone was enough (Scalia) and the other using minimum contacts as the definitive test (Brennan). (Burnham v. Superior Court of California)

q Force or Fraud exception: service of process invalid in cases where P forced or tricked D to enter state in order to serve process and therefore no PJ.

q Immunity of parties and witnesses: most states grant immunity from PJ to nonresidents who are present in the state solely to take part in a judicial proceeding or who are passing through the state on their way to a judicial proceeding elsewhere.

(b) Domicile: if D domiciled within the state then there is general jurisdiction. It is still true today.

(c) Consent:can waive Constitutional protection by consenting to PJ. Can do so in astate court by making a general appearance instead of a special appearance (only contest PJ).
q can provide express consent via contract or implied consent such as the nonresident motorist act in Hess v. Pawloski.