Civil Procedure I Outline

TABLE OF CONTENTS
 
PLEADINGS
 
 
 
 
 
THE COMPLAINT
A pleading must contain:
a.
b.
i. Pleader must state basic facts of the claim, not just the conclusory statement that pleader is entitled to relief.
ii. You must claim the elements of your cause of action (i.e. battery elements)
iii. Courts may infer missing information. See Dioguardi (136)
iv. In your claim, you can restrict yourself by being too specific. The more you plead, the more you have to prove later. (i.e. instead of saying speeding or reckless you say 32 MPH over the listed 27 MPH) pg. 520 (f)
v. However, a very detailed complaint may encourage settlement or get others on your side immediately. There are strategic advantages to being more detailed, but you also have the burden to prove more.
vi. Form 9 (pg 283) shows a complaint for negligence and what needs to be included.
vii. A
c.
i. statement of relief sought
ii.
1. Three exceptions to the general proposition of you get what you are entitled to, even if you did not ask for it:
a. Amount is absurdly too high
b. Default judgment
c. Amount has made the jury or judge prejudiced to the amount awarded or verdict
iii. You must plead for damages AND ask for them
iv. Prayer for relief serves two important functions:
1. Notice to the opposing party of the potential loss they face and urge to settle
2. Allows the court to award correct damages
v. See Bail (141).
In addition to the general requirement of a “short and plain statement of the claims” imposed by
d.
i.
ii.
1. Courts have decided you just need slightly more information with this claim
2. Form 13 sets out the requirements, specifically #4 (page 284)
iii.
iv.
v.
1. If an event occurs, time and place must be included
vi.
1. purpose is so
2. if only such damage as may reasonably be expected to follow an injury are claimed, no allegation of special damages is necessary
3. You can amend pleadings once as a matter or course
4. See Ziervogal (140).
vii.
viii. Some courts have held civil rights cases to a heightened pleading requirement as well, but now courts don’t because it is not specified in the rules.
DISTRICT OF KANSAS
Π 00-147-KV
v. (yr — docket# — judge’s initial)
Δ
COMPLAINT
For her complaint against
 
 
PLEADINGS
8(a)(1): short statement of jurisdiction8(a)(2): short and plain statement showing plaintiff is entitled to relief12(b)(6) is often used against an 8(a)(2).8(a)(3): demand for relief (prayer for relief)54(c): If the Δ defaults by failing to defend, the relief granted cannot exceed what is prayed for or differ in kind from the complaint. The court may award any relief to which a party is entitled under the pleadings and proof – even if different from or more than that prayed for in the complaint. 54(c) does not impose a strict limitation. You get what you are entitled to, even if you did not ask for it. However, you cannot recover for a cause of action if you did not plead it. 8(a)(2), certain special matters must be pleaded with particularity if they are to be raised at trial. There special matters are ones notice of which is thought be necessary in order for the opponent to be able to prepare for trial. They are typically claims which the adversary will not be expecting unless his attention specifically called to them.Rule 9: These special matters include:9(a): any denial of any party’s legal capacity to sue or be sued9(b): the circumstances giving rise to allegations of fraud or mistake9(c): any denial of the performance or occurrence of a condition precedent9(d) & 9(e): the existence of judgments or official documents and acts, on which the pleader plans to rely9(f): material facts of time and place9(g): special damagesΔ will not be surprised at trial by additional injuries and cannot prepare a defense for them9(h): certain aspects of admiralty and maritime jurisdiction
Rule 10
e. Look at any local rules
f. Generally, what it should look like as follows:
UNITED STATES DISTRICT COURT
: Form of a complaint (Form 11, page 283)Δ, π alleges follows:
Count 1: Assault
[numbered paragraphs that are single sets of circumstances]  
Count 2: Battery
[you can incorporate materials in paragraphs #1-#3.
WHEREFORE… [demand for relief] Law Firm
____________________________
Lawyer Signature, Address
 
 
 
 
RESPONDING TO A COMPLAINT
TIME PERMITTED
MOTIONS TO DISMISS
MOTION FOR JUDGMENT ON THE PLEADINGS
PRELIMINARY HEARINGS
MOTION FOR A MORE DEFINITE STATEMENT
MOTION TO STRIKE
CONSOLIDATION OF DEFENSES IN MOTION
WAIVER OR PRESERVATION OF CERTAIN DEFENSES
Q: A
A: YES. You cannot raise it as another motion, but you can put it in your answer
Q: A
A: NO.
Q: A
A: NO.
Q: A
A: NO. You can make a
Q: After the answer, can the
A: NO
ANSWERS
AFFIRMATIVE DEFENSES
AMENDMENTS
iv. Federal Rules do not allow for John Doe claims.
12(a)
g. answer is within 20 days of service, not the filing date
h. if service is waived under
i. if a motion is filed before the answer, the time for the answer is extended to 10 days after the court’s response to the motion
j. time is counted by
: time permitted for a responseRule 4(d), then within 60 days after date request was sentRule 6(a)
k. extensions—
7(b) are usually granted
12(b)
l.
i. can never be lost according to 12(h)(3)
m.
n.
o.
p.
q.
i. no cause of action in a claim
ii. the claim must be an actionable one, not merely an illustrative one
iii. a motion cannot be dismissed unless there is absolutely no set of facts
iv. Two grounds for this motion
1. element of the cause of action is not stated
a. element of the cause of action is not stated
i. used if you cannot really tell from the complaint if there is a claim or not
ii. can sloe be used because a complaint is unclear – there is a problem in wording or an element of the cause of action is missing
iii. This CAN be amended
b. No legal basis for recovery
i. Question of law
ii. This CANNOT be amended
v. Can also be used if there is an affirmative defense on the face of the complaint.
1. this does not technically fall under
2. used if it is obvious with nor more facts that the law applied makes it easy
3. if the court won’t let you raise an affirmative defense in a
vi. Always viewed in a light
r.
: These 7 defenses may be included in the answer, or they may be filed as a separate motion. If a motion, they must be presented by the right Δ immediately aft her complaint is filed. Whether or not an answer is still is still necessary is determined by a ruling motions. (A-E are issues of fact and F is an issue law)12(b)(1): lace of jurisdiction over the subject matter12(b)(2): lack of jurisdiction over the person12(b)(3): improper venue12(b)(4): insufficiency of process12(b)(5): insufficiency of service of process12(b)(6): failure to state a claim upon which relief can be granted12(b)(6), but some courts allow it only the affirmative defense is obvious on the face of the complaint12(b)(6), just put it in your answer and you can file a motion for judgment on the pleadings or a motion for summary judgment.most favorable to the π
vii. If it’s not a strong
viii. Basically, you never lose a
12(b)(6) motion, put it in your answer12(b)(6) motion12(b)(7): failure to join a party under Rule 19.
12(c)
s. After the answer is there is no dispute of the facts, but only the law, then the party can file this motion.
t. Both parties agree to the facts, but they disagree as to what law is applied.
u. The substance is the same as in a
12(b)(6), but a 12(b)(6) can be made right after the complaint and the 12(c) can be made after the pleadings are complete.
12(d)
v. The defenses in
12(b)(1) – (7) and 12(c) shall be determined before trial, unless there is a court order
12(e)
w. Used if you have a complaint that you can’t understand
i. must be unfathomable
x. Should only be used when you cannot figure out what the pleading is stating because you use discovery to get more details. As a result, this not usually granted.
y. Can only be filed before you give an answer because it claims you cannot answer the complaint because it is too vague
z. If motion is granted,
π must replead within 10 days or the original pleading is stricken. If motion is not granted, it cannot be appealed and Δ must file his responsive pleading.
aa. Most courts do not grant this because it comes out in discovery
12(f)
bb. Used most often to strike the motion for a jury trial.
cc. Used also for redundant, immaterial, impertinent, or scandalous material
dd. Can be used on any kind of pleading.
ee. Courts are reluctant to grant it.
12(g)
ff. You cannot make two motions. However, you can include another defense in your answer. You must make all your defenses raised by motion at one time.
gg. Refers to all
 
Rule 12 motions, not just 12(b) motions
12(h)
Rule 12 Hypotheticals
hh. 12(h)(1): These defenses should go in your motion or they are waived. They are technical motions the court want to get out of the way. If you do not include these defenses in whatever you file first, they are waived. These defenses deal with the technicalities.
i. Lack of jurisdiction over the person:
12(b)(2)
ii. Improper venue:
12(b)(3)
iii. Insufficiency of process:
12(b)(4)
iv. Insufficiency of service of process:
12(b)(5)
ii. You can keep these if you amend you motion before it is ruled on.
jj.
kk.
i. You do not even lose this defense if the attorneys do not even make a motion. A judge alone can dismiss it.
12(h)(2): These defenses can be included I you answer even if you do not bring them in your defense. These defenses deal with the merits:
i.
failure to state a claim upon which relief is granted: 12(b)(6)
ii. failure to join a party indispensable under
Rule 19: 12(b)(7)
iii. failure to state a legal defense to a claim
12(h)(3): You can never lose the 12(b)(1) defense of lack of jurisdiction over the subject matter. This defense deals with constitutionality. 12(b)(2) motion is denied. Can you put a 12(b)(6) in your answer?12(b)(6) motion is denied. Can you make a 12(b)(2)?12(g) says you have to file all your motions at once. Under 12(h)(1), a 12(b)(2) defense is waived if you omit from a motion, so now you cannot even put it in your answer.12(b)(6) motion is denied. Can you put a 12(e) in your answer?12(g) includes motions made in all of Rule 12, not just 12(b)(1)-(7).12(b)(6) motion is denied. Can you pat a 12(e) in your answer?12(e) motion before you answer. If you can answer, there is no reason for a 12(e). You must make it before you answer because 12(h)(2) does not list it as an exception.Δ file a 12(b)(3) motion?. 12(b)(3) is waived if a motion is not made because of Rule 12(h)(1)
Q: After the answer, can the
A: NO. You cannot file it as a motion, but you could use it as a defense in your answer. In
Q: You answer, then three months later can you amend your answer to raise a
A: NO. You cannot amend because of
Q: You answer, then a year later, can you file a
A: YES. In
Q: You answer, there is a trial, and the
A: YES. There does not even need to be a motion by attorneys for this defense.
Δ file a 12(b)(6) motion?12(h)(2), you do not waive that defense. You can amend your answer, then move for judgment on the pleadings or a summary judgment.12(b)(5)?12(h)(1) and 12(a). The defense is waived under 12(h)(1). Under 15(a), you can still amend within 20 days