Select Page

Civil Procedure I
University of Iowa School of Law
Bauer, Patrick B.


Prof. Bauer

Spring 2012

Civil Procedure Outline

Adversary system (Notes pg1)

Litigation Timeline

File Complaint (Prof. Sward Outline Provided)

Serve Process


Motion to Dismiss


Counter Claims

Affirmative Defenses

Amendments to Pleadings


Pretrial Motions

Motion for Summary Judgment (most popular)



Right to Jury Trial


Post-Trial Motions

New Trial

Judgment as a matter of law (JNOV)

Motion to vacate


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)


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?