CIVIL PROCEDURE WINSHIP SPRING 2016
INTRODUCTION
Sources of Civil Procedure
US Constitution: Art. III; due process clause of 5th & 14th amendments
Statutes (federal & state, e.g. USC & long-arm)
FRCP (not a statute)
Courts write the rules; Congress must approve or override
Local rules
Individual judge’s rules
Caselaw (not CL, much of it is interpreting other sources)
FRCP 1: Scope & Purpose of Rules
These rules govern the procedure in all civil actions and proceedings in the US district courts… “Just, speedy, and inexpensive” action
Rule 1 Committee Note: amended to emphasize that in addition to the court, the parties share the responsibility to ensure just, speedy, inexpensive action.
SOURCE OF LAW
SUMMARY
FRCP 7(a)
Pleadings allowed (e.g. complaint, answer to a complaint, reply to an answer)
FRCP 8
Minimum standard required in a pleading to avoid dismissal, answers, affirmative defenses
FRCP 9(b)
When alleging fraud or mistake, party must state consequences of fraud or mistake.
FRCP 12
Motions (e.g. motion to dismiss, motion to for more definite statement)
FRCP 11 (USC § 1927)
Sanctions
FRCP 15
Amended/supplemental pleadings, relation back
FRCP 26
Discovery (including scope)
FRCP 50
Judgment as a Matter of Law
FRCP 56
Summary Judgment
FRCP 4(k)
Service, look at state statute for jurisdiction
28 USC § 1390, 1391
Venue
US Const., Art III, 28 USC § 1331
Federal question
28 USC § 1332
Diversity jurisdiction
28 USC § 1367
Supplemental jurisdiction
28 USC § 1441, 1446, 1447
Removal
FRCP 18(a)
Joinder of claims
FRCP 13
Counterclaims & crossclaims
FRCP 17(a)
Real party in interest
FRCP 20
Permissive joinder of parties
FRCP 19
Required joinder of parties
FRCP 22
Rule interpleader
FRCP 14
Third-party practice/impleader
28 USC § 1335
Statutory interpleader
FRCP 24
Intervention
ANATOMY OF A LITIGATION
Pleadings
FRCP 7(a): Pleadings Allowed; Forms of Motions and Others
Tells what types of pleadings are allowed (e.g. complaint, answer to a complaint, answer to a counterclaim)
Typically move/countermove
7(a)(7) – “If the court orders one, a reply to an answer.”
FRCP 8: General Rules of Pleadings
(a) Claim for Relief: talks about the minimum you have to put into the pleading to go forward or else dismissed (minimum standard)
FRCP 9(b): Fraud or Mistake
When alleging fraud or mistake the party must particularly state the consequences constituting fraud or mistake. Malice, intent, knowledge may be alleged generally.
Definition & Requirements of Pleadings
: function is to describe and define dispute b/w parties. A complaint, response to a complaint, counterclaim, or response to counterclaim (FRCP 7)
Must contain (FRCP 8):
Short and plain statement of grounds for jurisdiction
Short and plain statement of the claim showing that the pleader is entitled to relief
Demand for relief sought
Can be accomplished through
Facts showing that ∆ should be settling and may induce sympathy for the client
Need to include enough info for effective discovery b/c discovery is based on the claims in the pleadings
While it needs to be short, it also needs to have enough info for the rest of the action
Line of Cases Interpreting FRCP 8(a): Is complaint sufficient to satisfy Rule 8?
Conley v. Gibson “retired” (courts don’t take this language literally, so it’s not huge…this is narrowly interpreted anyway… not overruled, but don’t want to rely on it/cite it anyway)
Swierkiewicz v. Sorema Still good law! Sufficient complaint to survive motion to dismiss
Bell Atlantic v. TwomblyInsufficient complaint to survive motion to dismiss
Ashcroft v. Iqbal Insufficient complaint to survive motion to dismiss
Conley v. Gibson
Challenge to a plead
provide the framework of a complaint, they must be supported by factual allegations
Notice pleading isn’t dead but still requires heightened pleading requirements of Iqbal
Adequate facts depend on the complexity of the case
What happens if pleading is dismissed under 12(b)(6) motion?
Accept allegations in complaint as true, see if there are enough facts to state a claim that is plausible on its face
As long as court has dismissed w/o prejudice, plaintiff can refile w/ more specific facts
If prejudice, plaintiff cannot refile in same court
Notice Pleading Concerns
Want to get to the merits of the case, so if it is avoidable the fight should not be over pleadings
Define dispute early b/c it affects substantive/procedural law used
Want to simplify pleadings to only have notice pleading to give plaintiffs a chance to prove their case through discovery
Don’t want to encourage settlement of non-meritorious claims
Discovery is long/expensive, want to ensure necessity before starting it
Other routes to “fixing” pleading: Notice Pleading Restoration Act (not heightened pleading;
Motions
PRE-ANSWER MOTIONS
Before filing an answer, a ∆ may make a motion to dismiss or another motion based on FRCP 12(b), (e), & (f)
Resolve certain issues early:
Consolidate pre-answer motions: FRCP 12(g)
Rule 12(b)(6) (only non-procedural defense in 12(b)):
Complaint has insufficient factual allegations (e.g. Twombly: agreement not sufficiently alleged)
Missing element
No cognizability or claim for which relief can be granted
Although there is now a cause of action, the facts in the complaint demonstrate that the alleged circumstances don’t support that cause of action
Filing a pre-answer motion is an alternative to answer the complaint, don’t have to answer complaint until motion is decided; it is entirely optional!
