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Civil Procedure I
University of Dayton School of Law
Perna, Richard P.

Civil Procedure Outline
Pleading
A. Purpose: to give notice to all parties of the nature of the lawsuit, so they can respond—Rule 8: General Rules of Pleading—don’t have to plead facts, don’t have to have a legal theory, construed as to do substantial justice.
B. Steps
1. File a complaint—include jurisdiction, short statement of claim, and what relief is sought (a complaint is deemed “commenced” when it is filed—Rule 3).
2. Other party can either do nothing, file a motion to dismiss, or answer.
C. Dismissal (Rule 12(b)(6))—made before Δ files his answer—a complaint should not be dismissed for failure to state a claim on which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief (Conley 17).
1. Ways to dismiss
a. Not in compliance with Rule 8 (pleading sufficiency).
b. Substantive—Rule 12(b)(6)—relief cannot be granted.
2. Must stay within the 4 corners of the complaint to dismiss under a 12(b)(6).
D. Cause of Action—must establish elements; claim—don’t have to go through elements b/c Rule 8 only requires a short, plain statement.
E. In Code pleading, the facts were asserted upfront, and under the Rules, the facts are disputed during the discovery process.
F. Motions are to be made in writing (Rule 7(b)).
1. Motion for a more definite statement—if pleadings are ambiguous that a party can’t reasonably be required to frame a responsive pleading (Rule 12(e)).
2. Motion to strike—any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter (Rule 12(f)).
G. Fraud must be pled more specifically—an exception to Rule 8 (Rule 9(b).
H. Pleading in the alternative: When a complaint contains two separate allegations, you can plead alternative claims, defenses, regardless of consistency and whether based on legal, equitable, or maritime grounds (Rule 8(e)).
I. Judgment on the pleadings: After Δ files his answer, and the pleadings are complete, Δ can challenge the sufficiency of the complaint by Rule 12(c)—substance is the same as a 12(b)(6), but made after pleadings are complete instead of as soon as the complaint is served.
J. Answers: put the π on notice, admit or deny each averment
1. General denial—not an assertion that all of π’s allegations are false, but demands that π “prove it” (Rule 8(b)).
a. Why? All of the facts to sustain π’s claim are still at issue and π has to prove them to proceed.
b. Not permitted everywhere, just in some states.
2. In FRCP, you must admit what is true and deny what is not true.
3. Only the things that Δ does not know are considered “denied.”
K. Affirmative Defenses—not responsive to π’s pleading, but asserting something that π didn’t mention (Rule 8(c)).
1. A new matter or issue not embraced by the complaint should be pleaded as an affirmative defense.
2. Purpose is to give notice to the π because there are new issues.
L. Counterclaims—responsive to π, similar to rules for complaints, same options (Rule 8(a)).
M. Verification of Pleadings—an attorney or party must certify that the pleading is not for an improper purpose, is nonfrivolous, and there is evidentiary support for allegations (Rule 11(b)(1-4)).
1. Before 1983, the standard was subjective, and sanctions were not mandatory.
2. Now, the standard is objective. Attorneys are required to make a reasonable inquiry before signing the pleading. Rule 11 may be violated by later advocating (orally) statements.
3. Safe harbor provision—1993 standard—the party seeking sanctions is not allowed to file the motion with the court unless, within 21 days after service of the motion, the challenged claim, paper, or defense is not withdrawn or appropriately corrected. Sanctions are now discretionary.
4. Attorneys and law firms can now be sanctioned as well—jointly responsible for violations committed by its partners, associates, and employees.
5. The court has inherent powers even if Rule 11 does not apply—where a litigant abuses the judicial process, the court can punish them.
6. Violations of Rule 11 occur when the pleading is signed.
N. Amendments of pleadings (Rule 15(a))—A pleading may be amended once as a matter of course—π gets a freebie before Δ responds.
1. If Δ wants to amend his answer, he doesn’t get a freebie because his answer is not one to which a responsive pleading is permitted. Instead, he has to amend within 20 days of service of his answer.
2. If an answer has been served, π may amend by leave of court or written consent of the adverse party. Leave shall be freely granted when justice so requires.
3. Leave to amend should be denied only if it would cause actual prejudice to the other party—court looks for bad faith, prejudice, undue delay, ect.
4. Relation back of amendments—Where a pleading has been amended, if the claim or defenses asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading (Rule 15(c)).
a. Relation back is an exception to the statute of limitations. Notice must be given within 120 days of filing of complaint (demand letter, someone telling you, etc.
b. When the underlying facts are different from the original complaint, the “same conduct, transaction, or occurrence” standard is not met.
5. Change of party—the amendment will only relate back if within Rule 4(m) (120 days) the party to be added has received notice and will not be prejudiced AND knew or should have known that but for the mistake, the action would have been brought against that party (Rule 15(3)(c)). Notice can be given by sending potential Δ’s a copy of complaint/letter saying that they may be named.
6. Unless there is prejudice to the party opposing the amendment, pleadings will be conformed to proof at trial. Δ’s must object if they don’t want the amendments.
Discovery
O. Discovery is the process by which we find out information relevant to the lawsuit. Rule 26(a) requires a self-initiated disclosure (without a discovery request)
P. How do you discover?
1. Informally (Rules do not apply here).
2. Interrogatories
3. Depositions
Q. Relevance: Parties may obtain discovery regarding any matter not privileged, which is relevant to the claim or defense involved in the pending action (Rule 26(b)).
1. It is irrelevant whether the evidence is admissible. 26(b)(1) says that relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
R. Privilege: Material is privileged against discovery if it would be protected against disclosure at trial (attorney-client privilege). This material is not discoverable unless the privilege is waived. Documents which are privileged must be identified.
1. How do you know if something is privileged?
a. Rules of Evidence
b. Statutes
c. Common Law
2. Not all discussions between attorney/client are protected. Only disclosure of communications are protected, not disclosure of the underlying facts by those who communicated with the attorney.
3. Attorney/client privilege does not apply to non-parties (witnesses).
S. Trial preparation (work product)—immunity is given to the materials prepared by counsel for trial purposes and to the opinions of experts that counsel has consulted in trial prep (Rule 26(b)(3).
1. The purpose is to reconcile the conflict between the purpose of discovery (pretrial issue formulation and fact-revelation) and the adversary model.
2. This immunity governs all preparation for trial done by the lawyer or any other representative of the party.
3. Absolute immunity—subjective thoughts, mental impressions—almost impossible to discover.
4. Qualified immunity—all other documents prepared for litigation purposes by either a party or rep.—overcome by a strong showing that the discovering party has a substantial need for the materials and their equivalent is not available through other means (26(b)(3).
5. Material is not work product if it is not prepared by an attorney and not in preparation for trial.
6. Experts retained or specially employed in anticipation of litigation, b

al.
c. A party must supplement an interrogatory, request for production, or request for admission (Rule 26(e)(2).
W. Sanctions—Rule 37(b)—for parties who have behaved unreasonably during discovery.
1. Discretionary sanctions
a. Financial sanctions—lawyer’s fees, damages suffered by the party in having the litigation delayed, but NOT costs of conducting the discovery itself (Rule 37(a)).
b. Claims or defenses barred.
c. Entry of judgment.
d. Contempt.
2. Mandatory sanctions
a. Given if the party fails to comply with the automatic early disclosure provisions of 26(a) or with the duty to supplement obligations of 26(e)(1)—if the party is without substantial justification in failing to disclose this info or fails to amend under 26(e)(2), they are not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed (Rule 37(c)(1).
b. Gross negligence—severe sanctions are appropriate when the discoveree’s failure to comply was grossly negligent.
X. Pretrial Conferences
1. Think of Rule 16 in light of Rule 26(f)—conference of parties.
2. Judges are managers of the pretrial process; they simplify or formulate the issues in the case, keep the case moving, identify witnesses to be presented at trial, and possibly facilitate a settlement.
3. Scheduling—The judge issues a scheduling order within 120 days after the filing of the complaint (Rule 16(b)).
4. There is no limit on settlement conferences or pretrial conferences, but there must be at least 2.
5. If a pretrial conference is held, the judge must then enter a pretrial order reciting the actions taken in the conference. These orders can summarize admissions of fact made by the lawyers, list the witnesses to be presented, and narrow the issues to be litigated. This order is binding during the rest of the litigation unless the court modifies it; but if the order is issued following the final pretrial conference, it may be modified only to prevent manifest injustice (Rule 16(e)).
Adjudication Without Trial: Summary Judgment, Dismissal, Default, and Related Procedures
Y. Judgment on the pleadings (Rule 12(c))—focused on all the pleadings (unlike 12(b)(6) that is focused only on the complaint)—no factual dispute and π can establish all elements as a matter of law.
Z. Summary Judgment (Rule 56)—anything outside the pleadings, facts are not disputed, no issue of material fact to be resolved—judgment as a matter of law based on the facts (a reasonable jury could only reach one result).
1. A motion for SJ is generally filed late in the discovery process, but it can be earlier.
2. The movant bears the initial burden of production on this issue to establish that there is no factual dispute—if the movant meets this burden, the non-moving party must come forward and rebut.
AA. Voluntary Dismissal (Rule 41(a)(1)—a π may voluntarily dismiss his complaint without prejudice any time before Δ serves an answer or moves for SJ. The π may do this without leave of the court.
1. The court can also order dismissal (Rule 41(a)(2) if the Δ has already answered or moved for SJ, but only on the court’s terms.
BB. Default—judgment entered if there is a failure to respond
1. Rule 55(c)—set aside default for good cause shown, but