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Civil Procedure II
University of Kentucky School of Law
Lawson, Robert G.

I.        Modern Pleading
a.       The Complaint
                                                              i.      Detail Required
1.      Modern pleadings – main purpose is to give the defendant adequate notice of the claim
a.       Facts not conclusions are the basis for effective pleadings
                                                                                                                                      i.      A complaint with only conclusions and no facts does not state a cause of action
b.      Federal rule – a short and plain statement showing that P is entitled to relief
                                                                                                                                      i.      This is just enough to give notice to the other party that they are being sued and the reason why they are being sued
                                                                                                                                    ii.      Needs to be enough to allow the opposing party to start to prepare a defense
                                                                                                                                  iii.      Needs to state the what, where, when, and how in the pleading
c.       Modern changes have been to the effect of simplifying the process and limiting the things courts have to deal with in the pleadings
2.      FRCP 12(b) How to Present Defenses.
a.       Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
                                                                                                                                      i.      (1) lack of subject-matter jurisdiction;
                                                                                                                                    ii.      (2) lack of personal jurisdiction;
                                                                                                                                  iii.      (3) improper venue;
                                                                                                                                  iv.      (4) insufficient process;
                                                                                                                                    v.      (5) insufficient service of process;
                                                                                                                                  vi.      (6) failure to state a claim upon which relief can be granted; and
                                                                                                                                vii.      (7) failure to join a party under Rule 19
1.      A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
b.      Notes:
                                                                                                                                      i.      Use of rule 12 occurs early and it should tilt in the favor of the P because we want them to have their day in court and will have plenty of time until the trial to identify and eliminate baseless claims
                                                                                                                                    ii.      Since modern pleadings are notice pleadings and no longer include the components that identify baseless claims, rule 12 links this to modern pleadings
                                                                                                                                  iii.      USSC on pleading rules – before using rule 12 to dismiss for want of claim, have to look at complaint and see if there is enough facts to give notice of the claim
3.      FRCP 8 (a) Claims for Relief.
a.       A pleading that states a claim for relief must contain:
                                                                                                                                      i.      (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
                                                                                                                                    ii.      (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
                                                                                                                                  iii.      (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
I.                   Addition of Claims & Parties
A.     Joinder of Claims: modern joinder seeks to maximize the ability of the court to meet the needs of particular controversies. Historically, there are three periods of legal development: common law, code, and modern.
1.      Common law required that all complaints fall under the same form of action, and a plaintiff could not join separate forms of action
(a)    Objective of reducing the scope of litigation to the fewest possible issues.
2.      Code occurred when the legislature enacted sets of procedure to replace common law procedure. 
(a)    Broadened the application of joinder; required the cause of action to arise out of the same transaction.
3.      Modern rules are encompassed in the Federal Rules of Civil Procedure – 1938. The purpose of Rule 18, Joinder of Claims and Remedies, is for convenience and reduction of multiplicity of litigation. There are two generalizations:
(a)    Claims from divergent areas of substantive law may be joined if they are sufficiently related so that their joint adjudication would promote judicial efficiency without sacrificing the standards of justice. 
(b)   Simple notions about the adversary system developed in the age of two-party civil litigation are no longer sufficient to meet the needs of contemporary cases. Courts are called upon to manage large-scale actions.
4.      Rule 18. Joinder of Claims and Remedies
(a)    Joinder of Claims. Once a party has made a claim against some other party, he may then make any other claim he wishes against that party
5.      Rule 42(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial for separate issues and claims.
(a)    Must preserve right to jury
(b)   Example case, Sporn v. Hudson Transit Lines, (1942, p. 585): A bus and car collided. Plaintiff brought a case against the bus lines for malicious prosecution and negligence. D moved for severance.
(1)   The court ruled that in the interest of justice, there should be a severance. If a jury were to try both types of action, there would be a likelihood of confusion as to the rules of law to be applied to the respective actions.
(2)   Furthermore, there might be prejudice against the bus lines in the negligence case if the malicious prosecution case resulted in malice and a want of probable cause.
B.     Counterclaims are affirmative claims for relief asserted by a pleader in defensive pleadings against the opposing party. Opposite sides of the “v”
1.      Rule 13. Counterclaim and Cross-Claim (just counterclaim sections)
(a)    Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading, the pleader has against the opposing party if
(1)   It arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim AND
(2)   Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. 
(b)   Exceptions to compulsory counterclaims
(1)   At the time the action was commenced the claim was the subject of another pending action, OR
(2)   No personal jurisdiction over the pleader for the claim in question
(If the claim arises out of the same transaction or occurrence, it must be brought in the same case or will be lost.)
(c)    Permissive Counterclaims. A pleading may state as a counterclaim any claim against opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
(Unlimited right to bring a claim against the plaintiff, regardless of whether it came out of the same transaction.)
(d)   Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind form that sought in the pleading of the opposing party.
(e)    Counterclaim Against the United States. 
(f)    Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.
(g)    Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.
2.      Ex. U.S. v. Heyward-Robinson Co: The issue of the case was whether the counterclaim was compulsory, by which subject matter jurisdiction would be conferred by ancillary jurisdiction.
(a)    If the counterclaim was permissive, there would be no Federal jurisdiction over them unless they rest on independent jurisdictional grounds. Whereas, if it was compulsory, no independent basis of Federal jurisdiction

n Interest: the named plaintiff must possess the right sought to be enforced. This applies to intervenors, cross-claimants, or counterclaimants. 
(a)    The court must first ascertain the nature of the substantive right being asserted; then
(b)   Determine whether the party asserting the right is recognized as the real party in interest under the forum’s procedural code. 
2.      Rule 17(a) Real Parties in Interest. Every action shall be prosecuted in the name of the real party in interest. 
(a)    An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought
(b)    No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder, or substitution of, the real party in interest; after ratification, joinder, or substitution the action proceeds as if it had been originally commenced by the real party in interest.
3.      Ex. Ellis Canning Co. v. International Harvester Co: The issue raised was whether the plaintiff, after having been paid the full amount of its loss, is a real party in interest and legally entitled to maintain the action for the benefit and use of the insurer. The court held that an insurer who has been fully paid for his loss is not the real party in interest.
(a)    Rationale for Rule 17(a): it might be tied to res judicata. Since the insurance company was not in the case, it would not be bound by the judgment. Therefore, the defendant would not be protected from duplicate liability by res judicata if the insurance company when after him in a separate action.
4.      Ex. R.J. Reynolds Tobacco Co. v. Laney & Duke Storage Warehouse: The court held that a Florida rule allowing only the insured to enforce a claim against a tortfeasor, even after payment by an insurer, was procedural and not substantive. Therefore, the real party in interest is procedural.
B.     Capacity to sue or be sued: refers to an individual or corporation’s ability to represent her interests in a lawsuit without the assistance of another. 
1.      Generally, incapacity can be organized along two functional lines:
(a)    Incapacity based on physio-psychological condition; or
(b)   Incapacity due to organizational status or legal relationship
2.      Where to look:
(a)    Individual: law of domicile;
(b)   Corporation: law where it was incorporated.
3.      Rule 17(b) Capacity to sue or be sued.  
(a)    The capacity of an individual to sue or be sued shall be determined by the law of the individual’s domicile. 
(b)   The capacity of corporation to sue or be sued shall be determined by the law under which it was organized. 
(c)    In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except
(1)   A partnership or other unincorporated association, which as no such capacity and
(2)   That the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, USC § 754.
4.      Rule 17(c) Infants or Incompetent Persons: 
(a)    Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. 
(b)   An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person who is unrepresented in an action. 
C.     Whether a plaintiff has Standing: used to ensure that the parties before the court will vigorously argue the claims at issue.