Levin_Civil Procedure_Spring 2010. – Civil Procedure- A Contemporary Approach. 2nd Ed.
I) General Information
A) Nomenclature
1) At trial: Plaintiff/Defendant
2) First Appeal (appeal as a right): Appallant/Appallee
3) Second Appeal (certiorari required): Petitioner/Respondant
B) Idea that procedure can trump substance (ex. rule 60)
1) Rule 60 (b) – grounds from relief from a final judgment
(a) Five reasons
(i) Mistake, inadvertent surprise, excusable neglect
(ii) Newly discovered evidence
(iii) Fraud
(iv) Judgment is void
(v) Judgment has been satisfied, released, discharged, or a prior judgment has been reversed or otherwise vacated
(b) For reasons 1-3 a motion for relief must be made within a year
(i) This allows people such as the Akermanns who lost their citizenship due to faulty advise from a government authority to get screwed, but we allow this to happen sometimes in the face of judicial efficency
2) fairness and predictability weighed against each other and sometimes the small guy gets screwed
C) Actual Order of Lawsuit
1) lawsuit starts with a complaint
2) the defendant then has two options
(a) motion to dismiss
(i) granted
(1) granted without prejudice
a. refile and go back to complaint if you can
b. if you cant fix problem – case is over
(2) granted with prejudice – case is over in this court (may still be a case in another court)
(ii) denied – go to answer
(b) answer
D)
II) Complaints
A) Background
1) A complaint is a type of pleading
(a) Pleading – a formal document in which a party sets forth or responds to allegations, claims, denials, or defenses
2) Purpose of a complaint (and pleadings in general) is to give notice to the other party that you are initiating some action
3) History of pleading
(a) Old rule – bring a specific writ that very specifically said what happened
(i) No discovery
(ii) Even a slight error in the writ got the case permanently dismissed
(b) Intermediate rule – Code pleading
(i) Give very specific facts about why your case should be allowed
(ii) Pretty much had to make your case without discovery
(c) Modern Rule – Notice Pleading
(i) Purpose is to give notice of the suit to the other party
B) Filing a complaint
1) General requirements (Form 11, Rule 8)
(a) Statement of jurisdiction
(i) SMJ – Federal question, diversity, alienage
(ii) Personal jurisdiction
(b) basic explanation of why lawsuit is being brought
(c) relief sought
(i) damages
(1) you want to aim high on the dollar amount
(ii) specific performance
(iii) injunction
(iv) declaratory judgment
(v) mandamous
2) Rules of filing a complaint (pleading for relief)
(a) Rule 8 (a) – Short and plain statement of
(i) jurisdiction
(ii) why the plaintiff is entitled to relief
(iii) and a demand for the type of relief sought
(b) RULE 9 (b)
(i) When alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake
3) Doctrinal Shift in Rule 8 from notice pleading to Plausibility Standard
(a) Connelly standard (old)
(i) Notice Pleading: Complaint must put the plaintiff on notice as to what the complaint is about but does not have to be extremely in depth
(ii) Other cases based on Connelly
(1) Leatherman – Not a heightened pleading standard other than in cases of fraud
a. Courts do not have the choice to impose a higher pleading standard in individual cases
(2) Swiwekiwqicz – supreme court overrules a district court ruling that in a discimination complaint the plaintiff had to establish a prima facie case
a. Says that a complaint must only show that a case is possible
(iii) Reasons for allowing such a low standard for plaintiff given its effect on the lower courts dockets
a. Supreme court thinks this is a good rule
b. Supreme court thinks that this is a bad rule but does not have the authority to overturn an official rule of civil procedure
c. Supreme court may be apathetic to the rule because it does not effect its docket
(iv) Question of Rule 8 consistently makes it to the supreme court even after Connelly
(1) Defendants continue to raise the issue
(2) Lower courts rule against Connelly
a. in order to keep their dockets low
b. out of interest for the defendants given the high cost of discovery
(v) Note- Real complaints usually had much more than required under Connelly
(1) Ensures district court will not adversely rule on case
(2) Gives ammo for a higher settlement pre discovery
(b) Twombly/Iqbal Standard (new)
(i) Plausability Standard: Court says that the standards are now that the case must be plausible based upon facts
(1) This is in contrast to the possibility standard in Connelly
(2) ignore legal conclusions and evaluate the facts to determine plausibility
a. Strip conclusory allegations and see if what is left is plausible and not just possible
(ii) Seminal Cases
(1) Twombly – narrowly held that plausibility standard now applies to antitrust cases and this is in line with Connelly
(2) Iqbal – Twombly standard of plausibility applies to everything (not just antitrust)
(3
ufficient Service of process
(f) (b)(6) – Failure to state a claim
(g) (b)(7) – failure to join a required party
2) Rule 12 (h) – when certain rights to file motions are waived
(a) Rule 12 (b) (2-5) are waived if they are not asserted before the answer
(i) By not filing a motion to dismiss you have essentially consented to the claim allowed in the motion
(b) 12 (b)(1) can be raised any time
(c) 12 (b) (6) can pretty much be raised any time
(i) Different than 2-5 because deals with sustentative facts of case and you may not figure this out until later
(ii) However, you want to file such a motion to dismiss as soon as possible
C) Two reasons for 12 (b)(6) – Failure to state a claim
1) There is no claim under a given statute
(a) Assumes that even if all the evidence in the complaint is correct, there is no claim under law/statute
(b) Court must then interpret statute
(i) If court agrees that there is no claim under the statute case is dismissed
(ii) If court agrees that there is a claim under the statute case is allowed to go on
(iii) Note – this is the same analysis as used for jurisdictional motions to dismiss
(c) American Nurses
(i) Discrimination claim on the basis of gender; lower court through out saying that additional facts showed that the clain had no merit
(1) This is an example of overpleading; if the plaintiffs had simply followed the Connelly standard the case would have been allowed through
(ii) Court holds even if there is an invalid claim included, if there is any possible valid claim the complaint gets to continue
2) There are not enough facts to make a valid claim
(a) The complaint does not satisfy the plausibility standard put forward in Twombly/Iqbal
D) Reasons for limiting motions to dismiss
1) Cost
2) rules of civil procedure that require certain truthful or reasonable actions by the parties
3) ethical responsibilities
4) professional norms
E) dismissal with prejudice?
1) Generally a compaint is dismissed without prejudice
2) Reasons for dismissal with prejudice
