CIVIL PROCEDURE II
Levin
Spring 2009
I. PLEADING
A. History and General Principles:
1. Three forms: pleading evolved through three major forms:
a) Common law
b) Codes
c) The Federal Rules of Civil Procedure (FRCP)
2. Three purposes: each of the three forms was/is characterized by a distinct overall purpose
a) Common law: the object of pleading at common law was to formulate the issues for trial
b) Codes: pleading under the codes was/is designed to reveal the underlying facts on which the claim rested
c) Federal Rules: the primary purpose of federal pleading is to give notice of the claim (or defense) to the adversary, so that he may make effective discovery requests and trial preparation
B. Modern Federal Pleading, Generally
1. Purpose: the principle of pleading under the FRCP is that the pleadings should give notice to all parties of the nature of the lawsuit, sufficient to allow the other parties to make pre-trial and trial preparation
2. General principles
a) No fact pleading: unlike the Codes, the FRCP do not require the pleading of “facts” upon which the claim is based. “No distinction is to be drawn between ‘evidence,’ ‘ultimate facts,’ and ‘conclusions.’”
b) No “theory of pleadings”: the FRCP do not require, as many Codes do, that the P confine himself to one particular “theory of pleadings.” If P is entitled to relief, he is not to be thrown out of court because his lawyer chose an incorrect legal theory when drafting the pleadings.
c) Substantial justice: the pleadings are to be “so construed as to do substantial justice.” Rule 8(f).
d) Dismissal: a complaint should not be dismissed for “failure to state a claim on which relief may be granted” (Rule 12(b)(6)) “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 v. Gibson
3. Types of pleadings that are permitted in the federal system:
a) Types:
(1) A complaint;
(2) an answer;
(3) a counterclaim;
(4) an answer to a counterclaim;
(5) a cross-claim;
(6) an answer to a cross-claim;
(7) a third-party complaint;
(8) an answer to a third-party complaint; and
(9) a reply to an answer.
(9)NOTE: nothing else qualifies as a pleading under the federal rules
4. Mechanics of pleadings:
a) Kinds of pleadings: generally, only two types, a complaint and an answer.
(1) Reply: a reply, which is an “answer to the answer,” is allowable in two circumstances (Rule 7(a))
(a) where the answer contains a counterclaim which is identified as such (in which case a reply is required); or
(b) by order of the court
(b)NOTE: where the answer contains a counterclaim, the reply must address itself solely to the allegations of the counterclaim, and must not discuss defensive allegations contained in the answer
b) Pleading in the alternative: the pleader, whether he is a plaintiff or defendant, may plead “in the alternative.” That is, by Rule 8(e), “A party may set forth two or more statements of a claim or defense alternately or hypothetically…” This rule also provides that “a party may… state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable, or maritime grounds.”
C. The Complaint
1. Definition of complaint: the complaint is the initial pleading in a lawsuit, and is filed by the plaintiff
a) Commencement of action: the action is deemed to have been “commenced” by the filing of the complaint with the court. Rule 3. The complaint should give the defendant fair notice of the essence of the plaintiff’s claim. Bell Atlantic Corp. v. Twombly.
2. Elements of complaint: Rule 8(a) sets out three essential elements which a complaint must contain:
a) Jurisdiction: “a short and plain statement on the grounds upon which the court’s jurisdiction depends…”; (Rule 8(a)(1))
(1) Jurisdictional allegation: the complaint must contain a short and plain statement of jurisdiction
(a) Diversity suit: in a diversity suit, the jurisdictional allegation refers to the fact that jurisdiction is founded upon diversity of citizenship and the amount in controversy, exclusive of interest and court costs, is in excess of $75,000.00
(b) Federal question: if the P asserts federal question jurisdiction, a reference is normally made to the federal statute or constitutional provision relied upon
b) Statement of claim: “ a short and plain statement of the claim showing that the pleader is entitled to relief”; (Rule 8(a)(2))
(1) Statement of Claim: Rule 8(a)’s requirement of a “short and plain statement of the claim showing that the pleader is entitled to relief” has generally been construed so as to place the fewest possible technical requirements on the pleader. The level of factual detail has not been high; gaps in the facts are usually remedied through discovery or other pre-trial procedures. The plaintiff must give the D fair notice of the nature of the claim and the grounds for it. Erickson, Twombly. To give “fair notice,” the P is only required to provide a short and plain statement of the claim showing that it is entitled to relief. Rule 8(a)(2)
(a) Legal theory not required: the P need state only the facts, not the legal theory he is relying on.
(b) Prima facie case need not be recited: similarly, the P need not recite facts that are sufficient to demonstrate a prima facie case. That is, as long as the plaintiff gives enough facts to put the D on reasonable notice about what is being alleged, it’s irrelevant that the P has failed to allege some matters that he will ultimately have to prove in order to recover.
i) Swierkiewicz v. Sorema N.A.: P alleges that D fired him from his job on account of his national origin and age. P does not assert facts in the complaint that are sufficient to demonstrate a prima facie case and the lower courts hold his complaint i
explicitly require that the complaint state a specific dollar amount of damages. the demand for judgment should give the court and the D a general indication of the type of relief sough, but it does not need to state a specific dollar amount of damages.
i) General damages: P does not need to specifically ID general damages
ii) Special damages: P must specifically identify its special damages, including attorney fees. Rule 9(g)
iii) Punitive damages: P should specifically request punitive damages if the P pleads a cause of action that allows for them. Rule 9(g).
iv) Interest: P should specifically request prejudgment and postjudgment interest.
v) Costs: P should make a general request for costs. Costs must be awarded to the prevailing party unless a federal statute, the FRCPs, or a court order provides otherwise. Rule 54(d)(1)
3. Special matters: in addition to the general requirements of a “short and plain statement” imposed by Rule 8(a), certain “special matters” must be pleaded with particularity if they are to be raised at trial. These “special matters” are ones notice of which is thought to be necessary in order for the opponent to be able to prepare for trial. They are typically claims which the adversary will not be expecting unless his attention is specifically called to them.
a) Catalogue of matters: listed in Rule 9, these special matters include:
(1) any denial of a party’s legal capacity to sue or be sued (Rule 9(a));
(2) the circumstances giving rise to any allegation of fraud or mistake (Rule 9(b));
(3) any denial of the performance or occurrence of a condition precedent (Rule 9(c));
(4) the existence of official documents and acts or judgments, on which the pleader plans to rely (Rules 9(d) and (e), respectively);
(5) material facts of time and place (Rule 9(f));
(6) special damages (Rule 9(g));
(7) certain aspects of admiralty and maritime jurisdiction (Rule 9(h))
b) Effect of failure to plead special matter: plaintiff’s failure to specially plead one of the items listed in Rule 9 may prevent him from recovering at all, or from recovering particular items of damage
c) If item not listed in Rule 9, no heightened pleading required: if a particular matter is not listed in Rule 9, its exclusion means that the court may not require the party to plead that matter with particularity.
