Civil Procedure I Outline

University of Kansas
Civil Procedure (Spring 2010)
Prof. Hines
 
Federal Rules of Civil Procedure govern procedure in all civil actions and proceedings in the US district courts. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. (Rule 1)
 
Hines said they have four distinct features:
1)      They merged law and equity, ending the centuries-long separation of functions and procedures
2)      They established broad and flexible joinder of claims and parties
3)      They created powerful procedures for pretrial discovery; and, closest to our present inquiry
4)      They sought a way of defining pleading that de-emphasized its role in litigation and avoided both the required formulas of the writs and the “facts” of the Codes.
 
PLEADINGS (tells the parties’ initial stories; “why the court should bother with the case”)
Sufficiency:
·         No technical form required, but must be simple, concise, and direct. (Rule 8(d))
·         Parties may set out alternative or inconsistent claims/defenses. There is no limit to how many can be set out, and the pleading is sufficient so long as one claim/defense suffices. (Rule 8(d)(2)-(3))
 
Complaint – a pleading consisting of: a short and plain statement showing proper jurisdiction, a short and plain statement showing that the pleader is entitled to relief, and a demand for the relief sought. (Rule 8(a))
 
Haddle v. Garrison (U.S. 1998)
(Haddle went to federal court to testify against Garrison. Haddle did not need to testify, as time did not allow. However, Garrison fired Haddle. Haddle brought suit alleging that the firing was a punishment and USC Title 42 §1985(2) allowed for recovery. Garrison filed a 12(b)(6), which asserts that 8(a) is not met, GA district court and 11th circuit dismissed the claim, citing his employment as “at-will” and not guaranteeing any protection. Morast v. Lance (11th Cir.) ruled that an “actual injury” is needed to recover, so neither GA court really could overrule this, as no actual injury was present. Reversed and remanded.)
·         USSC unanimously overturned, saying there was a recoverable claim that the intent of the legislation was “not deprivation of property” (actual injury), “but intimidation or retaliation against witnesses in federal court proceedings.”
 
Bell Atlantic Corp. v. Twombly (U.S. 2007)
(Twombly accused local telephone and Internet service providers of not competing with each other, through a mutual understanding that they would not do so. This, effectively, gave each service provider a monopoly over its own market. The complaint failed to establish any factual support for such a claim. Because the pleading was lacking any facts, the case was thrown out. Conley was cited as the 2nd Circuit’s grounds to overturn the dismissal.)
·         The USSC said that Conley had been misconstrued for a long time and did not mean, as some took it to, that a claim could suffice only on the mere possibility that evidence could be provided later in support.
·         There needs to be some assertion of factual indication that the claim was plausible and not just conceivable.
·         I.e., a claim can’t withstand dismissal because someone claimed that someone else broke a law, it has to have “enough facts to state a claim to relief that is plausible on its face.”
 
 
Required Responsive Pleadings
Must answer to: complaint, counterclaim, crossclaim, or order to reply. (Rule 12(a)(1)(A)-(C))
 
Answer – a responsive pleading stating in short and plain terms the defenses to each claim and admitting or denying each allegation. (Rule 8(b)(1))
·         General denial denies all allegations, including jurisdictional grounds. If not asserting general denial, the answer must specifically deny designated allegations or generally deny all except those specfically admitted. (Rule 8(b)(3))
·         Denying part of an allegation means admitting what is true and denying the rest. (Rule 8(b)(4))
·         Failing to deny an allegation is the same as admitting it, if responsive pleading is required. If a responsive pleading is not required, allegations are considered denied. (Rule 8(b)(6))
o   See Zielinski below
 
Defenses and Objections
The 3 pre-answer motions are:
·         12(b) Defenses – A separate motion asserting the 12(b) defenses must be made before pleading (though the defenses can just be brought up in the answer without a separate motion).
·         12(d) Matters Outside Pleadings – If a 12(b)(6) or 12(c) motion is accompanied by matters outside the pleadings (e.g., affidavits), and the court does not exclude them, it must be treated as a Rule 56 Motion for Summary Judgment.
·         12(e) – Motion for More Definite Statement (∆ can’t reasonably respond to vague complaint)
 
All motions under Rule 12 can be joined together. (Rule 12(g)(1))
 
Waiving Certain Defenses
If a motion is submitted claiming any 12(b) defenses, then defenses 12(b)(2)-(5) are waived if available to the party at the time of the motion, but not included in the motion.
·         12(b)(6), 12(b)(7), or failure to state a legal defense to a claim: all can be raised at trial.
·         If a court determines it lacks subject-matter jurisdiction, at any time, it must dismiss the action. (Rule 12(h)(3))
 
Any motion made under 12(b) or 12(c) must be heard and decided before trial unless the court orders a deferral until trial (risky, because the trial will be bound by the ruling on these motions). (Rule 12(i))
 
Amendments and Supplemental Pleadings
A party may amend a pleading once as a matter of course, either:
o   Before being served with a responsive pleading; OR
o   Within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar. (Rule 15(a)(1))
·         Otherwise, a party may amend a pleading only with the opposing party’s written consent (rare) or the court’s leave. Court should freely give leave when justice so requires. (Rule 15(a)(2))
o   Time to Respond to Amended Pleadings – ≥10 days (Rule 15(a)(3))
o   5 Foman factors to determine whether justice requires (give leave freely when justice so requires) (Beeck)
§  Undue delay
§  Bad faith or dilatory motive on the part of the movant
§  Repeated failure to cure deficiencies by amendments previously allowed
§  Undue prejudice to the opposing party
§  Futility of the amendment.
 
 
Pleading Special Matters
Circumstances constituting fraud or mistake, must be stated with particularity. (Rule 9(b))
            Malice, intent, knowledge, and other mental conditions may be alleged generally.
 
Stradford v. Zurich Insurance Co. (S.D.N.Y. 2002)
(Stradford, a dentist, took out an insurance policy on his business in August 1999. He didn’t pay the required premiums so the policy was cancelled from October 1999 to December 1999. He then started paying the premiums again, and filed a “no claims” letter concerning the period he was uninsured, but then filed a claim less than 10 days later. The insurance paid $151,000, and after receiving these, Stradford filed a revised claim for an additional $1,234,301. Stradford sued for remaining amount. Insurance found out the incident took place during the period he was uninsured, refused to pay the rest, and counterclaimed for fraud.)
·         Stradford moved under Rule 9(b) to dismiss counterclaims, due to lack of “particularity.”
·         Court granted leave to amend; insurance amended the claim, and requested permission to file motion for summary judgment that they need not pay the damages to Stradford. Request granted.
 
Beeck v. Aquaslide ‘N’ Drive Corp. (8th Cir. 1977)
(Beeck injured while using slide at neighborhood pool. Beeck sued Aquaslide. Aquaslide answered, admitting it manufactured the slide in reliance upon the opinions of insurance investigators. District court granted Aquaslide leave to amend the answer to deny this fact and permitted separate trial on who manufactured the slide. Beeck appealed the grant of leave to amend. Affirmed.)
·         Aquaslide relied on three separate insurance companies assertions that they manufactured the slide, thus they were not negligent in admitting this, nor was the court abusing its discretion to give leave to ammend.
·         Granting leave and a separate trial were proper, because Beeck’s claim was not automatically barred by either action (though they resulted that way, it was not certain).
 
Relation Back – allowed only if applicable statute of limitations allows relation back
Adding a claim – An amendment to a pleading relate