Verity Winship, Civil Procedure, Spring 2010
ANATOMY OF A LITIGATION
1. Event or transaction leading to the lawsuit
2. Decision to Sue
3. Starting the Suit
– Filing complaint
– Service of Process
8. Judgment Entered
COMMENCEMENT OF THE ACTION
– FRCP 3 says that an action is commenced by filing a complaint. Filing a complaint before the statute of limitations has run will satisfy the statute of limitations in federal cases and in diversity cases where the state rule in similar. However, the Supreme Court has held that a state rule that an action is commenced for purposes of the statute of limitations only upon service of process must be applied in diversity cases (Walker v. Armco Steel Corp.).
SERVICE OF PROCESS
– Who May Serve
FRCP 4 authorizes anyone who is at least 18 years old and not a party to the action to serve.
– How Service is Made
FRCP 4 provides that: (1) personal service, (2) service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or (3) service upon an authorized agent of the defendant is valid. Alternatively, service made me made under state rules of by mail under the waiver of service provision of Rule 4(d)
Pleadings serve the function of giving notice to the opposing parties
§ Rule 7. Pleadings Allowed; Form of Motions and Other Papers
· (a) Pleadings. Only these pleadings are allowed:
o (1) A complaint;
o (2) An answer to a complaint;
o (3) An answer to a counterclaim designated as a counter claim;
o (4) An answer to a crossclaim;
o (5) A third-party complaint;
o (6) An answer to a third-party complaint; and
o (7) if the court orders one, a reply to an answer.
§ Rule 8. General Rules of Pleading
· (a) Claim for Relief: A pleading that states a claim for relief must contain:
o (1) A short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
o (2) A short and plain statement of the claim showing that the pleader is entitled to relief; and
§ Rule 84.
The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.
o (3) A demand for the relief sought, which may include relief in the alternative or different types of relief.
§ Notice Pleading Restoration Act: (NOT PASSESD) … a federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the FRCP except under the standards set forth by the Supreme Court in Conley v. Gibson
· Conley v. Gibson:
§ “A complaint should not be dismissed for failure to state a claim 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.”
§ “Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.”
· Swierkiewicz v. Sorema:
§ An employment discrimination complaint need not include specific facts establishing a prima facie case of discrimination
§ Instead, it must only contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” FRCP 8(a)(2)
§ The statement must simply “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
· Bell Atlantic v. Twombly:
§ We require “enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”
· Erickson v. Pardus:
§ FRCP 8(a)(2) requires only a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’
§ Specific facts are not nec
i. 11(c) Sanctions.
(1) In General.
If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served… but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion. **Safe Harbour**
(3) On the Court’s Initiative.
On its own, the Court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b)
(4) Nature of Sanction.
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by other similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.