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Civil Procedure II
University of Kentucky School of Law
Bauries, Scott R.

Civil Procedure II                                                                Spring 2012, Bauries
I.  Responsive Pleading
A.  Default Judgment
·         Basic rule when served with a complaint: [NOTE, not mutually exclusive, but “stages responses” to the complaint] 1.      Move under Rule 12.
a.       Dismiss.  Rule 12(b)
b.      Strike.  Rule 12(f)
c.       More definite statement.  Rule 12(e)
2.      Answer (Deny or Affirmative Defenses under Rule 8)
3.      Do nothing.
a.       Is claim valid?
b.      Is judgment enforceable?
c.       Other party able to collect? (“turnip”)
·         Rule 55—authorizes default judgments if the non-defaulting party and the court carefully follow the prescribed procedures.
Ø  Rule 55(a)
§  party has failed to plead or defend (within 21 days, Rule 12(a)). 
§  Failure shown by affidavit or otherwise.
§  Clerk must enter a default [has no consequences by itself!] Ø  IF ∆ is not responding and default is not set aside, π will seek default judgmentà Makes default legally binding.
Ø  Rule 55(b)
§  (1) Claim is for sum certain [e.g., parties have agreed on specific amount (e.g., liquidated dmgs)] ·         On π’s request/affidavit showing amountà Clerk must enter judgment for that amount and costs
·         NOTE, ∆ can’t be minor or incompetent.
§  (2) “All other cases” (not sum certain)à must “apply to the court for default judgment.”
·         File a Motion for Default Judgment.
·         IF party against whom is sought appears and contests (very low standard for “contesting”à must serve that party with notice of application at least 7 days before the hearing.
·         Court MAY hold a hearing—conduct an accounting, determine amount of damages, establish the truth of any allegation by evidence; or investigate any other manner. 
Ø  Rule 55(c)
§  Court may set aside entry of default for good cause.
§  Set aside default judgment under Rule 60(b).
§  *Defaults are set aside very liberally!
Ø  D.J. awarded—may contest by Rule 60(b).  Applied much more strictly, b/c implies error, whereas Rule 55(c) implies inadvertence or mistake. 
·         Rule 60(b)—Grounds for Relief from Final Judgement (outside the merits).
1.      Mistake, inadvertence, surprise (e.g., no proper service), or excusable neglect.
2.      Newly discovered evidence that couldn’t be discovered in time to motion for new trial [note: existed at time of trial, just not available] 3.      Fraud, misrep., misconduct by opposing party.
4.      The judgment is void [e.g., court had no power—PJ, SMJ, venue, process.]  This could also be executed through a collateral attack!
5.      Judgment has already been satisfied or discharged.
6.      Any other reason that justifies relief.
·         Virgin Records v. Lacey—copyright claim.  P suing for statutory damages + injunction for illegal music download.  COURT: “Strong policy of deciding cases on the merits, defaults viewed with disfavor.”àNeed strict compliance with legal prereq’s. 
Ø  Default judgment only for a complaint that states a claim for relief!
§  Factual inquiry—Iqbal analsysis. 
Ø  ALSO, must have legal basis for claim.
Ø  Default inquiry is functionally equivalent to a 12(b)(6) motion—claim must survive this test for D.J. to be entered. 
Ø  NOTE: Default is not accepting liability.
§  It is the same as answering with admission to factual allegations. 
Ø  REMEDIES: May need evidentiary hearing if not sum certain…MAY LEAVE establishing to other side—ex parte.  Also issue injunction—court order, not complying is punishable.
B.  Rule 12 Motion Practice
·         P served with complaintà D has 21 days to:
a)      Answer.
b)      File a pre answer motion (Rule 12). 
a.       Rule 12 motions come before responsive pleadings (would be argument against!)
b.      Must point out defects complained of/details desired.
·         P has created a misleading/negative impression in pleading:
1.      Rule 12(e)—Motion for a more definite statement.
a.       Complaint is vague or ambiguous, D can’t reasonably prepare a response. 
b.      Require P to replead.
2.      Rule 12(f)—Motion to Strike.
a.       Any redundant, immaterial, impertinent or scandalous matter.
b.      Either court sua sponte or on a motion by opposing party.
NOTE, these motions create new deadline.  Historically used to delay, so court requires them before answer (so, must be within 21 days).  Policy that “threshold motions” should come first.
·         Matos v. Nextran—Truck rolled over, P sued manufacturer and seller.  D’s motions:
                           (1)            12(b)(6) failure to state a claim.
a.       D wins.  No allegations that suggest there was a warranty…
b.      Almost always granted with leave to amend.  Cost/benefit analysis.
c.       H/E, loses on negligence b/c reasonable inference for that there was a duty from other elements.
d.      Punitive damages—Don’t plead—“not a right, but a remedy”.  NOTE, some courts view punitive as special damages, and require that they be pled.
                           (2)            12(e) motion for a more definite statement.
a.       Standard: so vague and ambiguous that opposing party can’t frame a response. 
                                                                                      i.      Movant must point out:
1.      Defects complained of.
2.      Details desired. 
b.      May incorporate by reference—Rule 10(c).
c.       “Doesn’t have to be ‘literary gem’”. 
d.      Don’t have to match claims/defendants. 
                           (3)            12(f) motion to strike.
a.       Standard: Must show that no evidence in support of the allegation would be admissible.  Must show prejudice: movant unfairly losing some sort of status that he previously had. 
                                                                                      i.      Look prospectively at trial: Would evidence ever actually come out?
b.      Not necessarily Rule 11 violation if can make good faith argument that relevant.
c.       “All damages”—silly argument but not prejudicial, will have to prove.
d.      “other illegal acts”—conceivable that P will have to show illegality to prove other claims, so not stricken either. 
e.       High standard, disfavored motions. 
·         Rule 12(g)—Joining motions.
                                       (1)            Right to join—any Rule 12 motions may be joined.

Rule 11(b)(4).
·         IF responsive pleading required + allegation not deniedà effect of admission. 
·         Affirmative defenses (“avoidance”) Rule 8(c)
Ø  “Even if all true, defense still supersedes case stated against ∆.”
Ø  Rule lists, “including:” = not exhaustive!
·         Reis Robotics v. Concept—Reis seeking damages for breach of K.  D answered with counterclaims and 6 affirmative defenses.
Ø  P challenged aff. defenses and counterclaims as legally insufficient.
Ø  How to challenge affirmative defenses?
§  Rule 12(f)—Motion to Strike.  Defense is “insufficient.”  [P’s version of 12(b)(6)].
§  3 steps:
1.      Appropriately pled as aff. defense?
2.      Adequately pled under Rules 8 and 9? (e.g., heightened—fraud)
3.      Sufficiency pursuant to 12(b)(6) motion.  Iqbal standard.
a.       Prof. note—“showing” vs. “stating”—there is an argument here that this standard is not inevitable. 
Ø  Need factual content to color the affirmative defenses (Iqbal).  Must plead factual predicates.
§  To put P on notice of bases for defenses. 
Ø  No qualifying language in denials! (e.g. putting in quotation marks, confusing, etc.).
·         NOTE: Courts divided on standard for evaluating aff. defenses:
1.      Iqbal—fair to hold Ds to same standard as P.
2.      Conley—Ds have less time to develop (21 days), and Rule 8 says nothing about facts and “showing” in affirmative defenses. 
·         Ingraham v. United States—P suing doctors.  Damage cap on medical liability.  D failed to raise as defense, but tried to invoke on appeal.  Court held that statutory cap was waived b/c it was an affirmative defense that was not raised timely.
Ø  How to determine if it is in fact an affirmative defense?
§  Alternate definition—changes ordinary legal effect of the claim. 
Ø  Central to analysis—would allowing raising defense on appeal cause prejudice?  Court reasons that raising this defense would’ve changed the way P argued case (for actual damages!).  This is enough to cause prejudice/unfair surprise. 
Ø  ALSO consider: logical relationship between defense and cause of action.
§  Extrinsic to COA?  Which party has access to evidence?  Policy?
Ø  NOTE: can be raised in trial court, if not deemed to cause prejudice. 
Improper forms of denial:
1.      D lacks knowledge—this is conceding Rule 11 violation…that did not investigate.
2.      Negative pregnant denials—denial is “pregnant” with an admission.
a.       Literal denial—deny that I owe x amount of dollars.
b.      Conjunctive denial—e.g., “owned, operated and controlled”—treating as one thing.