Civil Procedure II Outline

Civ Pro II Outline

III. Pleading [Rules 8(a), 8(e)(2), 11] A. The Complaint
A. Rule 8 (applies to all civil actions, w/few exceptions)
1. P’s complaint must contain only “a short and plain statement of the claim showing that the pleader is entitled to relief.”
a. FRCP 8(a)(2) – Give D notice of (1) claim + (2) grounds for that claim (who, what, when, where, how)
2. Notice Pleading – FRCP only requires that a complaint give notice to D exactly what P’s suit against him is: Statement must simply “give D fair notice of what P’s claim is and the grounds upon which it rests.”
a. replaced Fact Pleading in which a complaint had to plead facts, which if true, showed that his legal rights had been invaded, which was difficult for P w/o Discovery
3. sufficiency of a complaint is NOT whether a P will ultimately prevail but whether claimant is entitled to offer evidence to support the claims
a. simplicity and brevity! Then use pretrial discovery to gather facts to SHOW D’s error
b. complaint cannot be dismissed b/c it includes an invalid claim along w/a valid one
i. if D is unclear about the meaning of a particular allegation in the complaint, the proper course is to move for a more definite statement, NOT move to dismiss
B. Complaint Includes:
1. Multiple Allegations: Ps may assert multiple allegations that assert alternate grounds for relief based on a single set of facts and also allow Ps to plead inconsistent allegations
a. EX: assert that driver both intentionally hit P and negligently hit P
b. 8(e)(2), allows for inconsistent allegations
2. Prayer for Relief: a P may collect more than they seek in the prayer, so long as the evidence supports the increased amount
a. Must demand relief sought (damages) in a pleading [8(a)(3)], but can get more damages awarded by the jury than originally sought [54(c) second sentence], but default judgment generally awards the amount in the prayer if reasonable
b. Special damages – damages that are unusual for the type of claim in Q and are not the natural damages associated w/a claim à but these require heightened pleading
C. Heightened Pleading
1. Federal Rules only impose heightened pleading for allegations of fraud and mistake or when claiming special damages [9(b) and (g)] 2. Congress has the authority to impose heightened pleading req’ments for claims as it sees fit
a. EX: for private securities fraud action
b. see Twombly!
D. Inadequate Complaints and 12(b)(6)
1. 12(b)(6) Failure to State a Claim motion says either, or both:
(1) “you’ve failed to plead enough detail to satisfy your pleading burden” OR
§Formally inadequate, failing to give minimum level of detail req’d under Rule 8(a)(2) such that D is not put on notice of the claim being alleged against him
(2) “even if everything you allege in your complaint is true, no legal liability attaches to D”
§Substantive or Legal inadequacy, the allegations fail to say anything that would render D liable for a violation of the law
E. Twombly and Rule 8(a)(2)
1. Sup Ct Majority: By requiring “plausibility” on the face of the complaint, the majority was simply enforcing Rule 8(a)(2)’s requirement of a “short and plain statement” by insisting on enough “heft” in the complaint to show that “the pleader is entitled to relief.” The majority explained that, by requiring “plausibility,” it was requiring less than a “probability” yet more than mere “possibility.” Plaintiffs’ claims came up short because they lacked sufficient factual context to “nudge” the inference of conspiracy “across the line from conceivable to plausible.”
2. Dissent: the majority had erroneously imposed a heightened summary judgment standard at the pleading stage, where the operative question is not “plausibility” but rather “legal sufficiency.”
3. Twombly and Rule 8(a)(2): Lower federal courts have already begun to apply Twombly’s fact-based “plausibility” standard in a wide variety of other contexts, including civil rights, securities, fair debt collections, RICO, and arbitration cases.
a. but what is plausible? How will district judges determine whether a particular allegation is “plausible” at the outset—before discovery and without the assistance of expert testimony?
b. expands the req’ments for “grounds for the claim” that must be asserted under 8(a)(2)
c. some Circuits recommending that Ds move for a more definite statement under 12(e) when P’s complaint doesn’t contain the facts that meet the plausibility of Twombly
i. fact-pleadings on most all Federal Q claims
d. turns “may” into “must”
F. Serving the Complaint
1. P drafts complaint; files it w/the court to commence the action [FRCP 3]; serves complaint w/summons—together known as process—on all the Ds in the case
a. summons – doc that orders D to appear in court and respond to P’s allegations [4(a)] b. Service must be made w/in 120 days of the date P files complaint [f + 120] i. 4(m) diligent prosecution rule
ii. if not, dismissed “w/o prejudice” so P can then file again correctly
c. but how is service date determined when waiver method used?
i. 4(d): service takes place when P takes D’s executed waiver and files it w/the court (not when D signs it or mails it)
2. FRCP 4(e): Service of Process on Individual Ds w/in the US
a. either as per state laws OR
b. in person; at D’s dwelling (w/a suitable person) OR w/an agent
i. EX: Hess v. Pawloski, NJ law authorized Sec of St to serve as out-of-stater’s agent for service of process in driving suits
3. FRCP 4(h)(1): Service of Process on Corporations
a. 4(e)(1): means approved of by that state, OR
b. delivering a copy to an officer or agent, and, if req’d by statute, mailing a copy to D
4. FRCP 4(f): Service of Process to those Outside the US
a. by the terms of an international treat or regime
b. in the absence of int’nat’l agreement:
i. how Ds are usually served w/in that country;
ii. as directed by that country (ask via letter rogatory from ct to foreign authority)
iii. thru personal service OR any form of mail req’ing a signed receipt
c. provision that permits service “by other means not prohibited by int’nat’l agreement as may be directed by the court”
i. EX: email, as in Rio, but w/permission by the court
G. Waiver of Service
1. When Ds dodge service, there is associated delay and higher costs: FRCP amendment encourages Ds to waive formal service in order to minimize these problems
a. gives more time to respond to the complaint: 60 days instead of 20 (waiver carrot)
b. Ds may have to incur costs in effecting formal service (waiver stick)
i. unless D can convince the court that it had a good reason for not agreeing to waive formal service
2. D has no obligation to respond to a request for waiver, in which case a P should proceed to achieve service
a. however, non-waiving Ds found w/in the US then become subject to the obligation to cover the P’s cost of service
3. Waiver of service does NOT amount to waiver of objection to PJ or Venue
4. When P does NOT want to try for Waiver of Service:
a. when P is in a state (or federal ct in that state) that requires filing + service of process to “commence a civil action” and the period of limitations (SOL) is w/in 60 days.
b. b/c D could delay returning waiver form and time could expire, blocking P’s action via the SOL (Walker v Armco beat-the-clock issue)

Ensuring Truthful Allegations and Sanctions, Rule 11
A. Signature, 11(a)
1. Every pleading, written motion, and other paper must be signed at least one attorney or by the party if they are repping themselves
B. What the signed papers mean to the court, 11(b)
1. When these papers are submitted it means that to the best of the signing person’s knowledge, info, and belief that it is reasonable under the circumstances
a. (1) it is not just submitted to be a pain in the ass, an “improper purpose” like harassment, delay, or increasing costs
b. (2) the stuff in the papers are warranted by existing law or by a non-frivolous argument for making new law or changing law
c. (3) factual contentions have support in the evidence or will have support after a reasonable opportunity for further discovery and litigation and
d. (4) the denials of factual contentions “ “
e. (d) Does not apply to disclosures and discovery requests, responses, objections, and motions under rules 26-37
2. Breaks down into three things the court really wants from the pleadings
a. legit motivation
b. sound legal arguments
c. basis for factual allegations and denials
C. Sanctions, 11(c)
1. Violation of rule 11(b) results in sanctions as explained by 11(c)
a. (1) If after notice and a reasonable opportunity to respond the court things that 11(b) has been broken the court may impose a sanction on any attorney, law firm, or party that violated the rule. Law firm is always held jointly liable unless there are extenuating circumstances.
b. (2) A motion for sanctions must be made s