CivPro
Prof. Bauer
Spring 2012
Civil Procedure Outline
Adversary system (Notes pg1)
Litigation Timeline
File Complaint (Prof. Sward Outline Provided)
Serve Process
Response
Motion to Dismiss
Answer
Counter Claims
Affirmative Defenses
Amendments to Pleadings
Discovery
Pretrial Motions
Motion for Summary Judgment (most popular)
Dismissal
Trial
Right to Jury Trial
Judgment
Post-Trial Motions
New Trial
Judgment as a matter of law (JNOV)
Motion to vacate
Appeal
Preclusion (Res judicata)
II. Service of Process
III. Responses to Complaints
Rule 12: Defenses and Objections
12(a) Time to Serve a Responsive Pleading (within 21 days)
12(a)(1)(A)(i) – D must serve an answer within 21 days of being served with summons/complaint
(ii) – if waiver of service under 4(b)
12(a)(1)(B)/(C) – within 21 days of counterclaim or crossclaim/order to reply
12(b) – 7 Defenses – can be raised 2 ways
1. Motion
a. You can move to dismiss/summary judgment
b. Can be expensive, may be cheaper to include in answer
2. Answer
a. Cheaper but does not force court to take action
12(b)(6) – Failure to State a Claim
– American Nurses Assoc. v. Illinois –
Complaint does not fail just because it makes some invalid claims, as long as there is one actionable claim the D can move for a more definite statement (12(e)) but cannot win a motion for 12(b)(6) dismissal
In considering a 12(b)(6) motion court reads complaint in light more favorable to P, bends over backwards to help P
Post Twombley this decision may not stand because allegations can be explained by a legal mechanism, “intentional discrimination” is simply the language of the law
– Hartford Accident v. Merril Lynch – ML files 12(b)(6) (No COA)– wins because ML’s failure was not proximate cause of Hartford’s loss, it was too remote (Proximate Cause as legal insufficiency)
– Garcia v. Hilton Hotels p 579 action for slander – court inferred missing element in slander complaint (publication) – affirmative defense (absolute privilege) can be raised in 12(b)(6) motion
o 3 Procedural Issues
§ Whether complaint of defamation can survive 12(b)(6) for failure to state a claim when complaint suggests possibility of conditional privilege and complaint fails to allege publication (an essential element of the claim of slander)
· HOLDS complaint alleged “slanderously” which may provide inference of publication – there is enough to allege publication even without it being specifically stated
· HOLDS (conditional privilege) complaint suggests possibility of CP – P can still prove at trial that D acted maliciously which would void CP – no defect in complaint (facts to be decided at trial)
· HOLDS 12(f) motion to strike paragraphs granted bc absolute privilege at administrative hearings since hearings’ testimony never deemed malicious (public interest to elicit honest testimony) p582
§ Whether 12(e) motion for more definite statement should be granted in slander complaint when statements were not allege to be publishes and it was not reported what was said
· HOLDS Grants 12(e) motion because statement must allege what was slanderously said
o Court denies 12(b)(6), grants 12(e) but why does D need to know what was said? They’ve already developed their Affirmative Defense (conditional privilege) and raised it, why make P say more than necessary in pleading?
§ Does it matter what D said if he is protected by an Affirmative Defense?, it isn’t really a challenge to the claim “even if claim is true it doesn’t matter bc I have this AD and there isn’t a COA- dismiss it”
12(b)(6) 3 Uses
1. improperly stated COA
2. No valid COA
3. Raise Affirmative Defense obvious on face of complaint (SOL or Absolute Privilege)
HYPOS
12(b)(6) denied you now cannot raise any other 12(b)(2-5)
You must have joined – 12(g)(1) allows joining
12(g)(2) – if you don’t join you may not join (efficiency)
12(h)(1)(B) – if you omit form original motion it is to late! You have WAIVED
Raise 12(b)(2) – denied
you CAN raise 12(b)(6) in your answer but cannot raise by motion (limited under 12(g)(2) – it was previously available and was not raised)
12(b)(6) can be put in answer 12(b)(2-5) cannot – want to decide cases on merits
12(b)(6) denied – canNOT then file 12(e) – 12(g)(2) still applies (must join)
12(b)(6) granted with leave to amend, complaint amended
you CAN file another 12(b)(6) bc this is a new complaint, you wouldn’t have had this defense available the first time, not restricted by 12(g)(2)
canNOT join a 12(b)(2) – was available the first time, you have waived it under 12(h)
No motion
Answer denies material allegations o the complaint
Can you raise 12(b)(3) – lack of venue? NO
12(b) You must include in motion if responsive pleading is allowed OR must include in answer if not it is waived under 12(h)(1)(B)(i-ii)
can you file a 12(b)(6)? NO (under 12(b))
haven’t lost the defense – cane file 12(c) motion for judgment on the pleadings
No motion
Answer denies material allegations of complaint
3 months – amend? NO – 21 days
12(b)(5) defense – go to 15(a)(1) [amendments] by way of 12(h)(2)
21 days (answer does not require an answer)
if you have to get permission from the court you cant do it “as a matter of course”
Uses of 12(b)(6)
1. Poorly stated – confusing (Dioguardi)/Element missing
a. Amendment likely to help
2. No Cause of Action
a. Amendment unlikely to help
3. Affirmative Defense obvious on face of complaint (that recovery is impossible)
a. Some courts will allow
Can NOT be used to raise a question of fact (must be a legal insufficiency)
12(c) – Motion for Judgment on the Pleadings
after pleadings, if all questions of fact are resolved and only questions of law remain
12(b)(c) look only at the pleadings, no facts need to be established
12(d) Result of Presenting Matters Outside the Pleadings
– will be treated as motion for summary judgment
12(e) Motion for More Definite Statement
12(f) Motion to strike – often used to strike pleading in jury trial
Motions to Dismiss 9/8/10 pp602-609
sought, D need not plead limitation of damages
Think about how to analyze what is/isn’t an AD
3 reasons not Affirmative Defense in Taylor (they were in Ingraham)
1. Limitation of liability, not AD, bc only limits does NOT bar recovery
2. Fed. Rules do not require P to plead extent o damages, D not required to plead limitations of damages in pleading
3. Fed. Rules do not consider limitation of damage AD, you can fail to deny damages and it is not deemed admitted
(1.) Ads bar recovery
(2.) If P need not plead D need not plead (damages)
(3.) Federal Rules do not consider limitation of damages AD, if you fail to deny it is not deemed admitted
Affirmative Defense v. Rule 12 Defense
AD – there is a claim but P cant recover because.. – it may or may not have happened but if it did he cant recover because
Rule 12 – no COA, attack on the complaint itself
AD v. Counterclaim
AD you cant recover form me and Counterclaim – Same set of facts – I can recover from you
The Reply Rule 7(a) – what pleadings are allowed
1. a complaint
2. answer to a complaint
3. answer to a counterclaim designated as a counterclaim
4. answer to a crossclaim
5. third party complaint
6. answer to a third party complaint
7. if the court orders one, a reply to an answer
Amendments – Rule 15 p623
15(a)(1) – as a matter of course – can do without the court’s permission
15(a)(1)(A) – within 21 days of serving pleading
15(a)(1)(B) – 21 days after service of responsive pleading or 21 days after service of a motion under 12(b) (e), or (f), whichever is earlier
Created to ensure claims decided on the merits – as long as the parties act in good faith
1. Maximize time for claims to be decided to merits
2. Reflects notice pleading standard, it is unimportant that initial pleadings contain all necessary information/facts
Beeck v. Aquaslide N Dive Corp p623
Whether in products liability case the court abused its discretion by allowing D to amend its answer and deny manufacturing a product that caused personal injury after SOL has run when D previously admitted manufacturing in its answer and interrogatories
No win situation – D was allowed to amend and deny because if they didn’t make the slide how could they have defended against claims?
P – prejudice – we relied on your answer (and those of your insurance companies) and thus did not/could not have sought out real manufacturer within SOL. We will NOT be able to recover if D can amend
Who was in the best position to prevent the error?
