Civil Procedure I Outline
Condensed References:
I. Pleading p.2
A. Complaint
· Rule 1 – Scope of Rules
· Rule 8 – Pleading p. 2
· Rule 12 – Defenses p. 3
· Haddle
B. Responding to the Complaint
· Rule 12 – Defenses
· Rule 8(b) – Admissions & Denials
· Rule 8(d) – Inconsistent Claims and Defenses = OK
· Rule 8 (c) – Affirmative Defenses
· Zielinski, Beeckp. 4
C. Amendments
· Rule 15 – Amended & Supplemental Pleadings
· Moore, Bonerb
D. Ethical Limitations
· Rule 11 – Signing (Certifying) to Court
· Walker, Christian
II. Discovery p. 6
A. Timing
B. Relevance
· Rule 26(b) – Relevance
· Davis; Steffan
C. Procedures & Methods
· Rule 26(a),(c) Initial & pre-trial disclosures
· Rule 34 – Producing Documents
· Rule 36 – Requests for Admission
· Rule 37 – Motions to Compel
· Rule 33 – Interrogatories
· Rule 30 – Depositions
· Rule 35 – Physical & Mental Exams; Schlagenhauf
· Rule 45
D. Privacy
· Rule 26(c) – Protective Orders
· Stalnaker
E. Privilege & Work Product
· Hickman
· Rule 26(b)(3)
· Upjohn
F. Discovery Abuses
· Rule 26(b), (g)
· Rule 37
· Thompson, Poole
III. Resolution w/o Adjudication p. 16
A. Default & Dismissal
· Rule 41 – Dismissals
· Rule 55 – Default Judgment
· Rule 60(b) – Grounds for Relief
B. Summary Judgment
· Rule 56
· Celotex; Bias
IV. Trial p. 19
A. Judging Judges
· 28 U.S.C. §§ 144, 455
· In re Boston’s
B. Right to Jury Trial
· U.S. Const. amend. VII
· Rule 38
· Rule 39
· Chauffeurs; Torcomian
C. Choosing Juries
· 28 U.S.C. §§ 1861-62, 1863(b)(2), 1864-67, 1870
· Thompson
D. Controlling Juries
· Rule 50
· Reid; Chamberlain
· Rule 59
· Lind
V. Remedies p. 27
A. Damages
· State Farm
B. Specific Remedies
· Sigma
· Inglis; Fuentes
· U.S. Const. amend. XIV
· Rule 65
VI. Appeal p. 32
A. Final Judgment Rule
· Rule 54(b)
· Wetzel
· U.S.C. § 1291-92
B. Practical Finality
· Lauro Lines
· U.S.C. § 1292
I. Pleading
Answer (w/in 20 days) Reply w/in 20 days (Rule 12(a)(1)(A)(ii))
Complaint (when counterclaim)
Pre Answer Motion
(Rule 12(b)(6))
Rule 1 – Scope & Purpose – Rules govern procedure in all civil actions – should be construed and administered to secure just, speedy and inexpensive determination of every action and proceeding
Rule 8 – Pleading (p. 422)
8(a) – Claim for Relief – Pleading must contain:
1. Short and plain statement of grounds for court’s jurisdiction
2. Short and plain statement showing pleader is entitled to relief
3. Demand for relief sought
Defenses:
1. 12(b)
2. Denials 8(b)
3. Affirmative Defenses
8(b) Defenses; Admissions and Denials
8(b)(3) General & Specific Denials – Party that intends in good faith to deny all the allegations of a pleading – including jurisdictional grounds – may use general denial. A party that doesn’t intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
8(b)(4) Denying Part of Allegation – Party denying only part of an allegation must admit part that is true and deny the rest.
8(b)(5) Lacking Knowledge or Info – Party that lacks knowledge or info sufficient to form belief about trust of allegation must say so and statement has effect of a denial.
8(b)(6) Effect of Failing to Deny – An allegation is admitted if a responsive pleading is required and allegation isn’t denied.
8(c) Affirmative Defenses – (formerly confession and avoidance)
8(c)(1) Party must affirmatively state any avoidance or affirmative defense including:
· accord and satisfaction
· arbitration and award
· assumption of risk
· contrib. negligence
· discharge in bankruptcy
· duress
· estoppels
· failure of consideration
· fraud
· illegality
· injury by fellow servant
· laches
· license
· payment
· release
· res judicata
· statute of frauds
· statute of limitations
· waiver
8(c)(2) Mistaken Designation – If party mistakenly designates a defense as a counterclaim or vice versa, court must if justice requires, treat pleading as if it were correctly designated (courts liberal about pleadings to allow claims to be heard)
8(d)(3) Inconsistent Claims or Defenses – Party may state as many separate claims or defenses as it has, regardless of consistency
Rule 12 – Defenses & Objections (p. 427)
12(a)(1)(A) Timing
(i) Δ must serve an answer w/in 20 days
(ii) If Δ waived service under rule 4(d) within 60 days or 90 days if outside U.S.
(Gives benefit to parties who waive being serviced with longer time to respond.)
12(a)(1)(C) Party must serve reply to an answer w/in 20 days after being served w/ order to reply
12(b)** Defense Motions
(1) lack of subject matter jurisdiction – favored
(2) lack of personal jurisdiction
(3) improper venue
(4) insufficiency of process
(5) insufficiency of service of process
(6) demurrer – favored
(7) failure to join a party – favored
– Motion must made before pleading
– (2) – (5) are disfavored defenses, which are waived if not motioned for before pleading
12(c) Motion for Judgment on Pleadings – after pleading closed (but early enough not to delay trial) party may move for judgment on pleadings.
12(e) Motion for More Definite Statement – Rarely used because if complaint is really so vague, then really should file 12(b)(6). Advantage, if granted is you will get more information e.g. discovery.
12(f) Motion to strike – Can move to strike “redundant, immaterial, impertinent or scandalous matter.” Might strike language that is unprofessional or if jury will see it, but not often. Or can act as 12(b)(6) for specific part of claim that is not valid.
12(g) Joining Motions
(1)
rement
11 (b) – what that signature certifies to the court – to best of knowledge and belief after inquiry reasonable to circumstances that:
(1) Not an improper purpose*
(2) Legal contentions warranted
(3) Factual contentions warranted
(4) Denials warranted
11(c) Sanctions
(1) Sanctions are discretionary. Absent exceptional circumstances, law firm is held jointly responsible for violation of its attorneys and employees.
(2) Motion for Sanctions (“Safe Harbor”) Must serve motion on opposing party (but don’t file it with the court) and give them 21 days to correct it, and only then can you file with the court
· Prevents “satellite” litigation concerning Rule 11 instead of focusing on litigation itself
· Forces parties to work together more, doesn’t waste court’s time
(3) Court can order Rule 11 violation at any time w/o notice – safe harbor doesn’t apply
(4) Punishment limited to deterrence – may include nonmonetary sanctions, can be $ for court or $ to opposing party (only if nothing else will deter offending party)
(5) Limitations on monetary sanctions
(A) Can’t do $ sanctions on represented parties for legal theory [(b)(2)] violations
(6) Sanction order must describe sanctioned conduct
11(d) Not applicable to Discovery
*(b)(1) probably has to be accompanied by (b)(2) or (3) violation because hard to imagine improper purpose w/o bad factual or legal contentions
1983 Rule 11 versus 1993 Rule 11
Mandatory $$ sanctions Discretionary $$ sanctions
Sanction = atty fees Sanction = limited to deterrence
No Safe Harbor Safe Harbor (may protect some factual assertions because opposing party is one most likely to notice them)
Rule 11 Notes, p. 355
· It is limited to written motion or other pleading that is signed by lawyer or party
· Rule doesn’t apply to discovery – but covers everything else
· By submitting papers lawyer/party is certifying that to best of knowledge, information and belief that facts are true.
· If later, lawyer learns of facts that change previous beliefs, don’t have obligation to amend answer but cannot continue to advocate the previous position. p 35 (Advisory Committee Notes)
· Clients can’t be sanctioned w/monetary damages for improper legal contentions, though they can be sanctioned monetarily for improper factual contentions
Reasons to pursue Rule 11 violations
· Works to discredit opponent, especially in continuing litigation, assuming opponent doesn’t take advantage of safe harbor
