Levin_CIvProII_Spring_2010.docx
I. Pleadings – See Appendix A
A. Complaints
1. Complaint. The initial pleading that starts a civil action and states the basis for the ct’s jxd, the basis for the P’s claim, and the demand for relief.
2. Elements
a. A statement of the basis for the ct’s PJ and SMJ;
i. PJ
ii. SMJ
A) FQJ; or
B) Alienage Jxd; or
C) Diversity Jxd
b. The P’s claim; and
c. The relief that the P seeks
i. Damages
ii. Specific performance
iii. Injunction
iv. Declaratory judgment
v. Writ of mandamus
3. Historical Context
a. Historical Functions of Pleading
i. Notice: the pleadings served to notify the parties and the ct of the nature of the claims and defenses raised in the case.
ii. Fact Presentation: the pleadings also set forth the facts in support of the parties’ claims or defenses.
iii. Screening: the pleading helped the cts evaluate the merits of the claims and weed out those that were frivolous or unmeritorious before proceeding to trial.
iv. Issue Narrowing: the process of pleading back and forth served to narrow the range of issues that would have to be resolved by the ct.
b. The Advent of the FRCP
i. The FRCP made no pretense of achieving all of the various functions set forth above. Now, pleading was to be solely concerned with providing notice to the parties of the claims and defenses of the case.
c. Modern Pleading
i. Twombly and Iqbal. The ct has moved back to a more heightened pleading standard. This standard of pleading is seeming to achieve the first three goals again.
4. Rules
a. Rule 8. General Rules of Pleading
i. (a) Claim for Relief. A pleading that states a claim for relief must contain
A) (1) a short and plain statement of the grounds for the ct’s jxd, unless the ct already has jxd and the claim needs no new jxd support;
B) (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
C) (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
b. Rule 9. Pleading Special Matters
i. (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
5. How the Rules Are Interpreted
a. Pre-Iqbal/Twombly
i. Even before the advent of the heightened pleading standard, lower cts continuously ignored the notice pleading standard and required more. Yet, the SCOTUS continued to re-state that notice pleading was all that was required.
ii. Why do the lower cts keep requiring more?
A) Many cts want to limit their dockets. Many trial judges and appellate judges feel like they are over-worked.
B) Many judges perceive that discrimination claims are frivolous.
C) Limited judicial resources.
D) As a strategic matter, attys might want to scare opposing counsel by showing that they have a strong case.
iii. Why does the SCOTUS continue to bat down proposed amendments to the notice pleading standard?
A) The rule in Rule 8 and interpreted in Conley is a good rule bc the D has better access to information. Shouldn’t bar the claim just bc the P hasn’t had the opportunity for discovery yet.
B) Maybe the SCOTUS thinks that it is a terrible rule, but nevertheless feels obligated to follow it. Amending the rule is that only way to bring about change, not through activist judges.
C) The SCOTUS is not concerned about the effects of the rule. Maybe bc the SCOTUS doesn’t feel the effects.
b. Post-Iqbal/Twombly: Plausibility Standard
i. Ignore all legal conclusions. See if what facts remain are sufficient to be plausible.
ii. Test
A) Strip the claim of legal conclusions.
B) Consider only the facts.
C) If based on the facts, the claim seems plausible, then the complaint is sufficient.
D) It is a fact-specific inquiry based on judicial experience and common sense.
iii. Is this a good standard?
A) Yes
1) Without it, we allow people to spend a lot of time and money in discovery or extort a settlement out of Ds.
2) The D thinks it is.
B) No
1) This leaves a lot of discretion to the judge.
2) Sometimes implausible things actually happen. And the P may not be able to plead more facts bc they are denied the right of discovery.
3) Very little predictive power of what will happen. This is not a bright line rule at all.
4) Might weed out meritorious lawsuits
iv. How might the ct respond to an implausible complaint?
A) Dismiss with prejudice – P will not be able to amend
B) Dismiss without prejudice – P will be able to amend
C) Truncated discovery – will allow P to possibly discover more facts to plead in the complaint
D) Preliminary hearing (Rule 12i) – The judge in Kregler mandated a Rule 12i discovery hearing. But the rule doesn’t mention discovery at all. There would be some preliminary hearings with oral testimony and other evidentiary material. An attempt to speak to the concerns of expensive discovery, fairness to the D, docket control in light of the high number of frivolous cases. A creative solution that one judge came up with. Not all cts do this.
B. Responding to the Complaint
1. Answers
a. Rule 12. Defenses and Objections.
i. (a) Time to Serve a Responsive Pleading.
A) (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
1) (A) A defendantmust serve an answer:
a) (i) within 20 days after being served with summons and complaint; or
b) (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the US.
2) (B) A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.
3) (C) A party must serve a reply to an answer within 20 days after being served with an order to reply, unless the order specifies a different time.
B) (2) US and Its Agencies, Officers, or Employees Sued in an Official Capacity. The US, a US agency, or a US officer or employee sued in an official capacity must serve an answer to a counterclaim, or crossclaim within 60 days after service on the US atty.
C) (3) US Officers or Employees Sued in an Individual Capacity. A US officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed in the US’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer, or employee, or service on the US atty, whichever is later.
D) (4) Effect of a Motion. Unless the ct sets out a different time, serving a motion under this rule alters these periods as follows:
1) (A) if the ct denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the ct’s action; or
2) (B) if the ct grants a motion for a more definite statement, the responsive pleading must be served within 10 days after the more definite statement is served.
b. Elements of an Answer
i. Must Contain
A) Responses to P’s Allegation. Rule 8b
1) Three Basic Responses
a) Admit – Rule 8(b)(1)(B)
b) Deny – Rule 8(b)(1)(B)
c) Disclaim knowledge (I don’t know) – Rule 8(b)(5) – operates as a denial
ii. May Contain
A) Affirmative Defenses – Rule 8(c)(1). This is when the D says that maybe all of the facts you allege are true, but I am not liable to you bc of some other facts you didn’t tell.
1) Accord and satisfaction;
2) Arbitration and award;
3) Assumption of risk;
4) Contributory negligence;
5) Discharge in bankruptcy;
6) Duress;
7) Estoppel;
8) Failure of consideration;
9) Fraud;
10)Illegality
11)Injury by fellow servant;
12)Laches;
13)License;
14)Payment;
15)Release;
16)Res judicata;
17)Statute of frauds;
18)Statute of limitations; and
19)Waiver.
B) Counterclaims and Crossclaims.
1) Counterclaim. Allegation against the P.
2) Crossclaim. Allegation against another party.
3) There is nothing in the rules that says that these must be in the answer but in practice that it how it is done. If you have already filed your answer, and then have a counterclaim, then you must move to amend your answer.
4) The rules are not clear as to whether the P must answer the counterclaim, but in practice the P always answers the counterclaim. Don’t chance.
2. Defenses (Motion to Dismiss, et al)
a. Rule 12. Defenses and Objections
i. (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
A) (1) lack of SMJ;
B) (2) lack of PJ;
C) (3) improper venue;
D) (4) insufficient process;
E) (5) insufficient service of process;
F) (6) failure to state a claim upon which relief can be granted; and
G) (7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defense or objections in a responsive pleading or in a motion.
ii. (h)Waiving and Preserving Certain Defenses.
A) (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:
1) (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
2) (B) failing to either:
a) (i) make it by motion under this rule; or
b) (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
B) (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required Rule 19(b), or to state a legal defense to a claim to be raised:
1) (A) in any pleading allowed or ordered under Rule 7(a);
2) (B) by a motion under Rule 12(c); or
3) (C) at trial.
C) (3) Lack of SMJ. If the ct determines at any time that it lacks SMJ, the ct must dismiss the action.
b. Understanding Rule 12
i. Rule 12(
shall be freely given when justice so requires.
1) “Actual prejudice” usually required: Normally, a leave to amend should be denied only if it would cause actual prejudice to the other party
a) Ex: Beeck v. Aquaslide – D admits to manufacturing a waterslide, but after statute of limitations has run, realizes it didn’t manufacture it and wants to amend. Court allows it because P cannot prove D manufactured the slide.
b) Despite the rule that actual prejudice must generally be shown for an amendment to be denied, a busy court does not abuse its discretion if it protects itself from being imposed on by the presentation of theories seriatim, and may deny a belated application to amend that makes a drastic change in the case in the absence of some good reason why the amendment is offered at a late stage
2) Amendment at trial: In addition to the general principal that leave to amend shall be freely given if just requires, amendment is generally allowed at trial when the evidence is objected to as being outside the scope of the pleadings. (Rule 15(b)(1)).
e. Relation Back
i. 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) Utility: the utility of this provision is in meeting statutes of limitation that have run between the filing of the original complaint and the amendment. Without such a provision, a P whose original complaint met the statute of limitations might find himself barred by the statute, even though his amended pleading was only slightly different from the original one, and even though the D had received fair notice of the general nature of the P’s claim before the statute of limitations had run
B) An action is deemed commenced as of the date on which the complaint is filed.
ii. The “relation back” doctrine under 15(c) only applies where the pleading as amended “arose out of the same conduct, transaction or occurrence” as that set forth in the original pleading. Courts have generally taken a fairly narrow view of when the newly-pleaded material and the originally pleaded matter arose from the same “conduct, transaction, or occurrence”
A) Mere Change of Theory: When what is amended is simply the claim or theory, not the underlying facts that are asserted in support of the claim, the court will typically find that the “same conduct, transaction or occurrence” requirement is satisfied
B) Change of Facts: But where the underlying facts needed to sustain the new pleading are materially different from those needed to sustain the original complaint, the court is likely to find that the same conduct, transaction or occurrence standard is not met
C) Court often phrase the issue in terms of notice – if the D reading the original complaint would not be placed on notice of the essence of what will later be claimed in the amended complaint, then the two complaints don’t involve the same conduct, transaction or occurrence, and relation back won’t apply
iii. Change of Party (Rule 15(c)(3)) Suppose that the amendment to a pleading changes the party against whom the claim is asserted. In this situation, the amendment relates back only if in addition to the same transaction or occurrence rule, it is the case that the party to be brought in by the amendment
A) (1) has received such notice of the action that the party will not be prejudiced (i.e. within 120 days of the service of the complaint)
B) (2) knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
C) Illustration: Suppose a complaint names D1 and has filed prior to the expiration of the statute of limitations. Suppose further that after the running of the statute, P discovers that the complaint really should have named D2, amends the complaint, and serves D2 sufficiently quickly that service is timely within 120 days. Does the amendment as to D2 relate back to the original timely filing? The answer is “yes.” Rule 15(c)(3).
D. Ensuring Truthful Pleadings
1. Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
