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Civil Procedure I
University of Dayton School of Law
Cox, Jeannette

Cox- Civil Procedure- Fall 2011

University of Dayton School of Law

The Complaint


1. Courts jurisdiction

2. State claim upon which relief can be granted (substance & formal sufficiency) Twombley & Scwierciwz standard

3. Demand for relief or judgment

8 (b)

1. Defenses & Admissions or Denials in short and plain terms

8 ©

2. Affirmative Defenses must be included in the response pleading


3. Simple and concise

4. Can state alternative claim or defense

5. May state inconsistent claim or defense


1. Pleading to be construed to do justice


1. Fraud or mistake requires heightened pleading


Formally Sufficient

Swierkiewicz v International 2002: need enough facts to determine if man was terminated due to his nationality Hungarian.

1) Are there enough facts stated to determine a cause of action?


Bell Atlantic v Twombley 2002: Need plausibility need to state enough set of facts can’t just state Sherman act violation must show it.


1) Answer: deny, admit, or claim no knowledge. Skirting the issue is admission of guilty. King Vision v. dimitri. Neither admit or deny = admission of guilt.

2) File a Motion to dismiss

MOTION TO DISMISS 12 (b) (1-7)

12 (b)(1)

Lacks Subject Matter Jurisdiction

1) No diversity of citizenship

2) Not a Federal question

Can NEVER LOSE this, court will bring sua sponte.

Louiville v. Mottley: anticipating a defense on Federal law question not enough. Cause of action must arise from a federal law. Well pleaded complaint

12 (b)(2)

Lacks Personal Jurisdiction

1) General consistent & Systematic

2) Minimum contact with State

Can LOSE if not filed in motion & not amended within 21 days in answer

Multiple cases below

12 (b)(3)

Improper Venue

1) District of any defendant if all from same State

2) District where substantial action took place or land is

3) Otherwise any place with personal jurisdiction

Can LOSE if not filed in motion & not amended within 21 days in answer

Diversity option 3 says any place of jurisdiction, Federal law says anywhere defendant can be found.

12 (b)(4)

Insufficient Process Rule 4(a)

1) Did not submit complaint with summons

2) Summons didn’t contain, seal, signatures etc

Can LOSE if not filed in motion & not amended within 21 days in answer

No cases read

12 (b)(5)

Insufficient service of process

1) Did not follow state statute where district court located

2) Did not follow state statute where served

3) Did not follow constitution

Can LOSE if not filed in motion & not amended within 21 days in answer

No cases read

1. Must be delivered >18 not party

2. Must be left with acceptable age & resides at home


Failure to state claim for which relief exists

Can NEVER LOSE this even if lost in amendement, can request in summary judgment


12 (b)(7)

Failure to join party under rule 19

1) (a)(1)(A) Can’t decide relief without harm to absent person

2) a (1) (B)(i) absent party interest will be impaired

3) (a)(1)(B)(ii) Inconsistent obligations

Can NEVER LOSE this, court will bring sua sponte.

Makah Indian tribe v verity


claim or defense;

2. Reasonably calculated to lead to discovery of admissible evidence;

3. Not attorney client privileged

4. Not constituting work product (A special showing GOOD FAITH is required for discovery of work product prepared or acquired in anticipation of litigation or for trial. This is qualified however mental imprints of the attorney are not allowed)

Work Product prep for trial Limitations Rule Must show 26 (b)(3)

1. Do you have Substantial need of the materials in the preparation of his case, and

2. Unable without due hardship to obtain the equivalent of such materials by other means.

3. Qualified immunity for work product does not protect against discovery of facts which is “intangible things” contained in the work product, including the identity of fact witnesses or the existence of the protected documents and things.

4. Absolute immunity for opinion work product, defined as “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

5. Court must protect the mental impressions if it orders discovery on work product

Trial preparation Non-Testifying Experts Rule 26(b)(4)

1. Not allowed to be deposed unless can show exceptional circumstances

Attorney Client Privilege or trial preparation material Rule 26(b)(5)

1. Expressly make the claim

2. Describe the nature of the documents without revealing the privilege

3. A party after notification must promptly return or destroy any privileges information

Supplementing Disclosures & Responses Rule 26(e)(1) & (2)

1. Parties have to provide supplements to any new information provided that changes as part of discovery unless already known to other party in a timely manner and to include updates to expert witness information