Civil Procedure Outline 2005
I. COMPLAINT
A. Provides notice of the nature of the claim. FRCP 3 a civil action is commenced by filing a complaint.
B. The complaint is to be served on the defendant within 120 days of filing. FRCP 4(m)
C. General Requirements
1. Statement of Jurisdiction.
a. FRCP 8(a) (1) requires a short and plain statement of the grounds upon which the court’s jurisdiction depends.
2. A statement of the claim. (Short and plain statement).
a. FRCP 8(a) (2) requires the complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” The pleader must at least allege a prima facie claim.
b. π needs to plead the elements of their cause of action. ( i.e. battery)
i. No detail is required.
ii. Elements include damages.
iii. Do not include defenses.
§ π can not assert they were not contributory neg.
§ Affirmative defense
c. Special pleading rules.
i. FRCP 9(f) averments of time & place are material.
ii. FRCP 9(b) all averments of fraud and mistake shall be stated with particularity.
iii. PSLRA Private Securities litigation reform act.
§ Specify each stmt. alleged to have been misleading.
§ If made on info and belief all facts which belief is formed must be sated with particularity.
§ Facts showing strong intent to deceive “scienter” must be shown.
d. FRCP 12 (b) (6) motion to dismiss for failure to state a claim.
3. FRCP 8(a) (3) requires a demand for judgment for the relief the pleader seeks.
a. FRCP 54(c) states that a judgment by default shall not be different from or exceed the demand for the judgment. However, some courts have held that a claimant may be awarded damages in excess of those demanded in his pleadings if he is entitled to those damages under the evidence.
i. Can not be used to introduce a new cause of action.
II. RESPONSE TO THE COMPLAINT.
A. General Requirements.
1. FRCP 12(a) (1) (A) requires that most defendants respond to a complaint within twenty days.
a. FRCP 12(a)(4) making a pre answer motion extends the time to answer.
i. FRCP 12(a)(4)(A) If the court denies the motion, the responsive pleading shall be served within 10 days.
ii. FRCP 12(a)(4)(B) If the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days,
2. FRCP 12(a)(3)(A) The United States government has 60 days to respond, ten days for motions.
B. Motions against the Complaint.
1. FRCP 12(b)(6) Motion To Dismiss for Failure to State a Claim upon which relief can be granted. The motion is not granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
2. FRCP 12(e) Motion for More definite statement allows the ∆ to require the π to give a more definite statement.
3. FRCP 12(f) Motion to strike allows ∆ to have the court strike from the complaint any redundant, immaterial, impertinent, or scandalous matter. Prior to responding to a pleading, or if no responsive pleading is permitted, within 20 days after service of the pleading.
4. FRCP 12(g) and 12(h)(1) provide that the following defenses are waived unless they are asserted in a single pre-answer motion
a. FRCP 12(b) (2) lack of personal jurisdiction.
b. FRCP 12(b) (3) improper venue.
c. FRCP 12(b) (4) insufficiency of process.
d. FRCP 12(b) (5) insufficiency of service.
5. FRCP 12(b)(1) Lack of subject matter jurisdiction may be raised at any time, even after the trial. [FRCP 12(h)(3)].
6. FRCP 12(b)(7) Failure to join a necessary party under FRCP 19.
III. ANSWERING THE COMPLAINT.
A. Requirements of an answer. FRCP 8(b) requires ∆ to do one of three things to π’s paragraphs
1. ∆ may deny the allegations.
2. ∆ may admit the allegations.
3. ∆ may plead insufficient information in response to each allegation.
B. Failure To Answer
1. If defendant fails to specifically respond to an averment he is deemed to have admitted it. As a safeguard against inadvertent admission, defendants usually add an all-inclusive paragraph denying each and every averment unless otherwise admitted.
C. General Denials
1. General denials of the entire complaint are permitted under FRCP 8 and under most state rules. This is very risky. If a court rules that a general denial does not meet the substance of the denied averments, the defendant may be deemed to have admitted the plaintiff’s specific averments. Moreover, general denials do not put into issue matters that under FRCP 9 must be specifically challenged.
D. Affirmative Defenses
1. FRCP 8(c) enumerates nineteen affirmative defenses which must be specifically pleaded in the answer in order to raise them at trial.
2. AD v. 12(b)(6).
a. 12(b)(6) says no claim, AD says you have a claim but you cannot recover because….
3. AD v. Denial.
a. Denial
ng, written motion, and other paper be signed by an attorney of record, or the party, if unrepresented by counsel. Pleadings need not generally be verified or accompanied by affidavit. By signing a pleading or other judicial document, the attorney or party certifies that, “to the best of his knowledge, information, and belief formed after reasonable inquiry”:
1. the pleading is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
2. the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
3. the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
B. Violations and Sanctions:
1. FRCP 11 is violated by “signing, filing, submitting, or later advocating” a paper when the litigant knows that it is no longer well-grounded, thus imposing on litigants a continuing duty to correct or even withdraw papers in light of post-filing events.
2. Courts may impose FRCP 11 sanctions of their own initiative but generally a FRCP 11 motion is made by the pleader’s adversary. Sanctions, imposed at the discretion of the court, may include:
a. Reasonable attorneys fees; fines; striking the offending paper; admonishing, reprimanding, or censuring the offender; requiring the offender to participate in educational programs; or referring the matter to disciplinary authorities.
FRCP 11(c)(1)(A) grants a litigant 21 days between service and filing of a FRCP 11 motionto correct or withdraw the offending
