Shipley
CivPro 2
Spring 2011
REMEDIES
I. Substitutionary: attempt to replace what claimant has lost
A. Compensatory Damages – sum equal to value of what lost
B. Liquidated Damages – amt is agreed upon ahead of time
C. Statutory Damages – amt fixed by statute
D. Multiple Damages – proven damages augmented automatically
E. Punitive Damages – punish and deter, only in narrow cases (tort), const. limits
II. Specific: orders a D to act, or refrain from acting, in certain way
A. Equitable Remedies – (many), subj to certain limitations that don’t apply to other remedies
B. Injunction – (most common), court will balance the hardships and consider public interest – Rule 65
1. TRO (Rule 65b) – can be granted w/o notice but only if specific facts in an affidavit/verified complaint clearly show immediate/irreparable injury, loss, or damage will result to moving p before adverse p can be heard & only if moving p’s atty certifies in writing any efforts made to give notice & reasons why notice shouldn’t be req’d (rare)
a) security must be given – 65c
b) max 10 days
2. Preliminary Injunction – can only be granted if notice is given (65a1) UNLESS extraordinary sit of pub int, spec need for prompt action, OR where gov’t official is initiating seizure. should show some likelihood of success on merits. no adeq remedy at law.
a) security must be given – 65c
b) two tests:
(1) combo of probable success & possibility of irreparable injury (Abbott), OR
(2) serious questions are raised and balance of hardships tips in his favor (Inglis)
c) can be immediately appealed – 28 USC 1292a1
d) Fuentes – attachment could be granted w/o notice where seizure is directly nec to secure impt gov’t/pub interest, need for special & prompt action, and st maintains strict monopoly on legit force (IRS)
III. Provisional: before case is resolved
A. must make strong showing
B. Pretrial attachment of D’s assets present const. concerns
ATTY’S FEES
I. Default Rule: under American Rule, each side pays own regardless of outcome
II. Exceptions: private agreements, statutes, and rules shift
JUDICIAL MANAGEMENT OF LIT
I. in many systems, cts play sig role in speeding up.
II. discovery conference & pretrial conference are 2 main tools
PLEADINGS
I. Code Pleading: req plead facts in ord and concise lang
II. Federal Pleading: (in many sts), FRCP
FEDERAL PLEADING: OVERVIEW
I. Pleadings Allowed:
A. req complaint, one or more answers, and if ordered, a reply
1. all other requests made by motion rather than pleading
2. add’l pleadings occur in cases where add’l parties joined
II. Format of Pleadings:
A. FRCP – case info, sep of allegation, use of exhibits
FEDERAL PLEADING: STATING A CLAIM
I. notice pleading – stating a claim
II. Basic Standards:
A. Rule 8a reqs claimant to make “short and plain statement” of claim, long as gives notice of claim & basic events giving rise
1. as long as affords other side notice of what seek, std is satisfied.
2. legal conclusions are acceptable
3. special rules dealing w/ pleading formal matters (capacity)
4. Twombly – enough factual matter (taken as true) to state a claim to relief that is plausible on its face
5. Fed Forms are per se sufficient
6. CAN allege inconsistent theories – Rule 8d3
7. Haddle – “hard law” – depending on interpretation of the law, either did or did not state a claim for relief – NOT the “no set of facts which entitle him to relief”- allowed to go forward
III. Prayer for Relief – Rule 8a – can be alt or inconsistent —- Rule 54c – ct not ltd to demand
IV. Jurisdiction – Rule 8a1
V. Elevated Pleading Standards:
A. for some claims/issues, FRCP req more detail than basic in Rule 8a
B. fruad, mistake, special damages (Rule 9g) – Rule 9b – “with particularity”
FEDERAL PLEADING: D’s RESPONSE
I. answer: general response
II. motion: specific response
III. Pre-Answer Motions: raise both procedural and substantive challenges to complaint (Rule 7b1)
A. Rule 12b – special set of objections/challenges
1. Rule 12b6 motion – does not state claim – ct uses “notice pleadings” standard (Rule 8a)
a) maybe malicious prosecution sanctions
2. if you made a preanswer motion and failed to include 12b3, then it is gone.
On the other hand, if you file your answer and omit 12b3 as a defense, then you can include it in an amendment to your answer made as a matter of course – within 20 day
B. Rule 12 – motion for more definite statement & to strike – redundant, immaterial, impertinent, scandalous, improper counts
C. Rule 12g & 12h set out certain restrictions on timing of pre-answer motions
1. Defenses relating to PJ, Service, & Venue can easily be waived by omission from answer or failure to include in PAM
2. Remaining Rule 12 defenses may be asserted later
IV. Answer: D’s general response to complaint
A. must be filed w/in 20 days (Rule 12a1Ai), subject to certain exceptions (often extended) – waive service = 60 d, if file PAM = w/in 10 d ruling
B. D must admit or deny all allegations in complaint
1. failure to deny deemed admission
2. ineffective denial deemed admission
3. if D doesn’t have suff info, can plead insufficient information (treated as denial) – Rule 8b5
V. Defenses: reasons why P is not entitled to relief
A. 2 Basic Types:
1. Ordinary Defense – considers only complaint and argues a procedural, legal or pleading defect
2. Affirmative Defense – introduces add’l facts that prevent P from recovering
a) Rule 8c
B. Burden of Pleading – Rule 8c and Rule 12b (D’s burden for certain issues)
AMENDMENT TO PLEADINGS
I. as a matter of course – 15a1A – before answer rcv’d (w/in 20 days) – Not motion
II. When permission is required: Rule 15 provides fairly short period in which party may amend w/o permission & only once. After that, perm req. (D’s or court’s)
A. Rule 15a2 – freely given when justice so requires (judge discretion, not likely changed)
1. denied only if other party can show prejudice or result of inexcusable neglect/carelessness
2. consider: relied on/changed conduct, essent’lly same proof, no prejudice, was on notice, no disc needed, early, failed b4
B. sanctions? – pay the cost at least
III. If answer w/ cc, cross-claim OR 3p complaint = Must also be before responsive pleading served (actual serv) – NOT motion
IV. All other pleadings = w/in 20 days after pleading served (no resp pleading req)
V. Relation back (Rule 15c): relation back to orig pleading impt when filed/served after SOL expired
A. relates back IF arises from same trans/occur as original pleading or mistake concerning identity of proper party
B. add’l reqs must be satisfied if amendment changes party agst whom claim asserted – 15c1C
1. same conduct/trans/occur
2. notice w/in period for delivery of orig complaint (120 days – 4m)
3. knew/should’ve known that but for mistake, orig action would’ve been agst him
VI. Other Changes: Rule 15 also allows amendments to conform to the evid and supplemental pleadings (Rule 15d – after complaint filed, always ct perm)
MOTION FOR JUDGMENT ON PLEADINGS
I. if pleadings, taken as whole, show that one party should prevail as matter of law, ct may grant motion for judgment on pleadings
II. Rule 12c
III. timing: only after all pleading complete, but early enough not to delay trial
IV. std: accepts all alleged as true
V. usually used when party failed to defend – Rule 12h2 (but could amend…)
ETHICAL LIMITATIONS ON PLEADINGS/MOTIONS
I. detailed stds to ensure honesty/candor set out in Rule 11 – ct MAY not must
II. Signing Req
III. Representation – signing constitutes cert that signer has conducted background research, supported by law and fact, not filed for improper pu
may notify of “inadvertent disclosure” – other must destroy, return, or hold
F. Rule 37e – sanctions may NOT be imposed for destruction of e-info through routine g.f. operation of e-info system
1. BUT, once clear litigation is imminent, duty to preserve relevant evid – “litigation hold”
2. dismissal permitted sanction, but permitted only where b.f. or evid highly prejudicial so as to deny other ability to defend
3. adverse inference instruction – where party w/ control and duty destroyed w/ culpable state of mind (neg suff – Zubulake) & evid was relevant to claim/defense such that reas trier of fact could find that it would support that claim/def
4. default judgment – Rule 37b2A
POLICY LIMITS ON DISCOVERY
I. Protective Orders: ct issues to protect from overly burdensome, embarrassing, or otherwise objectionable discovery – Rule 26c
A. before going to ct, parties must attempt to resolve disagreement themselves – confer – Rule 26c1
B. 2 common reasons: protect privacy & business trade secrets
C. must make expressly and describe what’s withheld – Rule 26b5A
II. Work Product:
A. Rule 26b3
B. doc or tangible thing prepared by party/rep in anticipation of litigation & relevant – nontangible work prod can’t be discovered
C. discoverable ONLY IF can show need
1. need evaluation considers importance of info and whether avail from other sources
D. exception – can obtain own statement – Rule 26b3C
E. protect agst disclosure of opinion, mental impressions, conclusions, or legal theories (even if need!!) – Rule 26b3B
III. Expert Info:
A. Rule 26b4
B. facts known by and opinions of non-testifying experts discoverable ONLY by showing need – 26b4B
1. ask first whether info w/in broad presumptive scope of discovery under Rule 26b1, then whether one of exceptions to discovery of relevant info applies
SUPPLEMENTATION OF DISCOVERY
I. Rule 26e
II. some cases, req to supplement or correct response to earlier discovery request – only parties
III. when incomplete or incorrect in material way and not otherwise been made known through discovery or in writing
IV. answers to interrogatories, mand disclosures, response to req for prod of docs, answer to req for admission (NOT deposition)
CONTROLLING DISCOVERY ABUSE
I. Signing of Discovery: Rule 26g (NOT Rule 11)
II. Compelling Discovery:
A. if person refuses to respond, may ask ct to intervene
1. sanctions – no safe harbor, motion not req’d, expenses & atty’s fees – 37c1
2. order compelling response – Rule 37a – must attempt to neg (37a1) – NOT for req for admission & exams
a) if wrongfully asked to compel – sanctions after notice and chance to be heard – Rule 37a5B
3. violation of order may result in add’l sanctions (37d), including contempt (37b2Avii)-unless sub justified/other circ-37a5A
4. specific sanctions for particular discovery issues
a) failing to attend own deposition & failing to supplement discovery (30g1 & 2, 37b1, 37c, 37c2, 37f)
b) barred from introducing evid on that matter at trial
c) Sanctions available listed in Rule 37d – based on good faith or willfully, rule was clear, affected case-judge discretion
