Civil Procedure Timeline
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I. Pleadings
A. Historical Functions of Pleading
1.Notice: the pleadings served to notify the parties and the court of the nature of the claims and the defenses raised in the case
2. Fact Presentation: the pleadings also set forth the facts in support of the parties’ claims or defenses
3. Screening: the pleadings helped evaluate the merits of the claims and weed out those that were frivolous or unmeritricious before proceeding to trial
4. Issue Narrowing: the process of pleading back and forth served to narrow the range of issues that would have to be resolved by the court
B. Modern Pleading and the Federal Rules of Civil Procedure: makes no pretense of achieving all of the functions above, but focuses primarily on providing notice to the parties of the claims and defenses in the case.
1. Three Types of Pleadings:
a. Complaint – π’s initial pleading
b. Answer – Δ’s response to the complaint
c. Reply – “answer to an answer.”
C.The Complaint.
1. Rule 8(a): complaint should be a short, plain statement of:
(1)Short and plaint statement of the grounds for jurisdiction.
(2)Short and plain statement of the claim itself showing pleader is entitled to relief.
(3) Demand for judgment and relief the pleader seeks.
Note: Under Rule 8, pleadings shall be simple, concise, and direct.
2. Ways to Dismiss a Complaint
a. Factual Merits:A complaint should not be dismissed unless it appears beyond doubt that the P can prove no set of facts in support of his claim which would entitle him to relief.
i. Under Rule 8(e) the court should try to construe the claim in order to do justice
b. Legal Merits:A complaint may be dismissed if it fails to say anything that would render the defendant liable for violating the law.
3. Notice Pleading (Conley v. Gibson): P need only give “fair notice” of the bare claim to the D and the court.
a. Reasoning: Lenient standard under Rule 8(a) recognizes the difficulty P’s have of gathering info before discovery – costly, information not available.
b. Heightened Pleading (Rule 9(b)): in situations enumerated in Rule 9(b)(fraud, mistake) there are heightened pleading requirements [“a party must state with particularity the circumstances constituting fraud or mistake”].
i. these cases: (1) are too easy to fabricate and (2) mere allegations can be detrimental to a defendant’s reputation.
Note: congress also has the authority to impose additional heightened pleading requirements by statute – key
c. Reality: in reality, most complaints far exceed the notice pleading requirement of Rule 8(a).
i. A Plaintiff may want to go beyond the Rule 8(a) requirements because of:
i. Leverage: Scare the other side into settlement by proving strength of their case
ii. Caution: be sure that case is not dismissed due to lack of specificity
iii. Influence:Can get a crack at the judge w/ sympathetic facts.
d. Over Pleading: it is possible to plead oneself out of court by including facts that, if true, show that the party’s legal rights have not been violated (American Nurses).
4. Plausibility Standard (Twombly): Court goes to lengths not to overrule Conley or the notice pleading standard, but nonetheless applies a different standard:
a. To allege facts that are merely consistent with unlawful conduct is not sufficient.
b. Claims are valid only if they allege facts that plausibly suggest unlawful conduct.
i. The suggestive facts need only be alleged; a suit can go forward even if the facts are unlikely to be proven by the plaintiff.
c. Interpretations/Applications of Twombly:
i. (1) Court hasn’t changed anything
ii. (2) Maybe it only applies to this (Sherman Antitrust/Conspiracy) case – probably not the correct interpretation
Note: Sherman Antitrust and Conspiracy cases are not enumerated in Rule 9 for heightened pleading standards
iii. (3) Re-interpreted Rule 8(a)and requires some statement of fact that would plausibly suggest that a legal conclusion is true – best idea.
5. Alternative and Inconsistent Allegations: the federal rules permit plaintiffs to include multiple allegations that assert alternative grounds for relief based on a single set of facts and also allow plaintiffs to plead inconsistent allegations. Rule 8(d)(2 & 3),
6. Prayer for Relief (Rule 8(a)(3)): Pleading must also contain an ad damnum clause stating what relief the P seeks.
a. Purpose: to give notice of the amount demanded
b. Rule 54(c): a party may collect more than they seek in the prayer for relief as long as the evidence supports the increased amount.
i. except for default judgments, every final judgment shall grant the relief entitled, even if the party entitled has not demanded such relief in the party’s pleadings.
ii. Default judgments are limited to the amount requested in the ad damnum clause.
c. Special Damages (Rule 9(g)): special damages (damages not naturally associated with a claim) must be specifically stated
D. Serving the Complaint (Rule 4): the complaint along with the summons must be served on the defendant pursuant to the requirements of Rule 4. [“any person over 18 & not a party/ P is responsible for service”]
1. Rule 4(d) service of process may be waived by the defendant, which gives the defendant more time to respond.
2. Rule 4(c)(3) – court can order service be made by marshal or deputy marshal
E. Responding to the Complaint: After P has filed a complaint, D may (1) file a responsive pleading (answer), in which they can assert any defense in law or fact, or (2) assert a defense by motion prior to filing the answer rather than by filing a responsive pleading.
1. The Time Permitted for a Response
a. Rule 12(a)(1)(A): 20 days after service: Δ has 20 days to answer from date process was served
b. Rule 12(a)(1)(B): 60 days after waiver: If Δ waives service, Δ has 60 days to answer after the date when the request for waiver was sent – encourages Δ to waive service (90 days if Δ’s lives outside the US)
c. Rule 12(a)(4): 10 days after denied Rule 12 motions: If Δ does not file an answer, but makes a Rule 12 motion instead, this extends the time period. Δ can wait to file an answer until 10 days of the court’s ruling. Policy: D can use this to his advantage b/c it allows him extra time to consider his position.
2. Defenses Raised by Motion(Motion to Dismiss)
a. Rule 12(b)(1): lack of subject-matter jurisdiction, SMJ
b. Rule 12(b)(2): lack of personal jurisdiction, PJ
c. Rule 12(b)(3): improper venue
d. Rule 12(b)(4):insufficient process
i.there is a defect in the summons
ii. does not comply
uch as those listed in Rule 8(c)
1. FRCP 8(c): Affirmative Defenses
x. When: Must be stated in the answer / responsive pleading, or it is WAIVED & cannot be proved at trial [accord & satisfaction, arbitration & award, assumption of risk, contributory negligence, bankruptcy, duress, etc]
y. BUT court may give Δ leave to amend the answer & add them under FRCP 15(a) as long as the late assertion does not prejudice the plaintiff.
z. Successful affirmative defenses are a complete bar to recovery.
2. Rule 8(c) sets out 19 affirmative defenses + says that “any other matter constituting an avoidance or affirmative defense must be pleaded” → the list is not exhaustive (ex: sovereign immunity).
3. Test: affirmative defenses are things that do not flow naturally from the case (in a negligence action “I’m not negligent” is not an affirmative defense – you would expect them to say this.)
iii. Claims: if the defendant has counterclaims against the plaintiff or other parties that she wishes to assert she may do so in the answer.
1. entitles the plaintiff to submit a further responsive pleading called a Reply under Rule 7(a).
5. The Reply(Rule 7(a)):only mandatory for counter-claims (replying to an affirmative defense is optional – if you don’t reply, it’s treated as a denial), but states may do differently.
a. If P doesn’t make a reply, FRCP 8(b) says the allegations in counterclaim are deemed admitted.
b. Where a reply contains a new CoA against the defendant, this is usually construed as a request to amend the complaint
c. any allegations or affirmative defenses raised in the reply are automatically deemed to be denied by the defendant under Rule 8(d)???.
F. Amending the Pleadings: arises when there is a need to remedy an inadvertent admission or mistake, or there is a desire to add, alter, or remove claims or defenses in light of new information.
1.Rule 15(a): Amending a Pleading – a party may amend once by right any time before the responsive pleading. If no response required, you can amend w/in 20 days. Also, you can amend with the court’s permission or consent of the other side “as justice requires.” If P amends, D has to respond w/in time remaining for response to original pleading or w/in 10 days after service of amended pleading (whichever is longer).
a. Amendment policy extremely liberal – usually allowed unless it would result in “actual prejudice” to the other side or bad faith by the party seeking the amendment.
Note: a motion is not a responsive pleading, so P can still amend by right after, ex: a 12(b)(5) motion.
2. Rule 15(b): Conforming to Evidence – parties may amend their pleadings, with permission, to conform to issues raised by evidence introduced at trial by express or implied consent (failure to object) of the other party, as long as it does not prejudice the other side.
3. Rule 15(c): Relation Back of Amendments – an amendment of a pleading relates back to the date of the original pleading when:
