Civil Procedure
Professor Bagley
Winter 2011
Outline
Service of Process-Rule 4
· Waiver rules are established to encourage waiver Rule 4(d)
Pleadings- complaint commences action. (Rule 4 spells out contents) (Rule 8 requires jurisdictional allegation)
· P files against D, put D on notice, court issues summons, D files answer, motion, or demur. Notice standard very low Diogaurdi (1944)
· Rule 8 requires jurisdiction be alleged (e) construed in D’s favor
· Rule 12(e) allows a request for clearer statement if complaint is “unreasonably vague” (disfavored in practice) Rule 12(f) allows striking unnecessary portions (courts can also strike su esponte)
· Rule 18-Joinder
· All Rule 12 motions (except 12(h)(2, 3)) be brought together
Motion to Dismiss-12(b)(6)
· Rule 12(a) governs answers.
· All 12(b) motions must be brought together. 12(g)(2)
o Jurisdiction (1) subject matter (2) personal (3) venue
o Defects (5) process (7) necessary party
o These are waived (except subject matter) if you fail to raise them
· Motion to dismiss Rule 12(b) (6) “failure to state a claim upon which relief can be granted” Challenges limited.
· Diogaurdi (1944) notice pleading standards very low. (no need to state a claim as long as the court sees one). Leatherman (1993) (court may not rise standards) Swierkiewz (2002) (prima facie case is not a pleading standard) Nurses (1986) (if there is anyway to read in favor of P, 12(b)(6) not granted) Conley Rule (1957) (not dismissed unless “beyond doubt”) Garcia (1951) (brought 12(b)(6) and motion to strike, court holds that language can be read to favor P, so strike under 12(e))
· After motion to dismiss granted Foman requires liberal standard in granting amendment.
· Rule 9(b)-higher standard for fraud
· Rule 12(h)(2)(A) expressly allows a 12(b)(6) in any 7(a) motion
Twombly and Iqbal
· Twombly (2007) Court says that in order to survive 12(b)(6) complaint must have enough facts to be “facially viable” (dumps Conley)(distinguish factual from legal assertions, factual must be construed in favor of P, but not D)
· Erickson (2007) sends a contrary message (even where there was a more probable explanation, the court accepted P’s version)
· Iqbal (2009) Twombly shouldn’t be limited to expensive cases. Extends Twombly. Requires “plausible factual evidence”
· Factual or legal
o 1) (Legal) allegations track legal elements
o 2) Generality (if general more likely Legal)
o 3) Plausibility
o 4) Consequences (high legal cost makes court more likely to grant 12(b)(6))
Answer
· Denials Rule 8 1) admit 2) deny 3) insufficient knowledge. General denial denies everything (disfavored by courts) (only made where good faith denial is intended)
· Everything not denied is admitted Rule 8(b)(4)
· In Zielinski (1956) D was not allowed to amend because amendment would lead to injustice against P. Court used equitable estoppel.
o But if they had looked to Rule 8(b)(6) they wouldn’t have had to.
· Affirmative defenses must be pleaded in the answer. Rule 8(
sponte. (Non-disclosure not grounds for sanctions)
· Main goal of Rule 11 sanctions is deterrence.
Discovery Rule 26 duty to disclose. 27-32) depositions. 33) interrogatories. 34) documents and e-info. 35) physical and mental exams. 36) admissions. 37) discovery sanctions. 45) subpoenas to non-parties.
· Rule 26(b)(1) ) May obtain “any non-privileged” document “relevant to any party’s claim or defense.” Relevant “need not be admissible” if it “appears reasonably calculated to lead to the discovery of admissible evidence.”
· Rule 26 duty to disclose requires disclosure of existence of witnesses, some docs, insurance info. Rule 26(a)(1)(B) exempts 8 kinds of cases from mandatory disclosure.
· Rule 26(f) meeting to plan discovery.
· Proportionality Rule 26(b)(2)(C) (avoid abuse). Relevance limited to proportional. Post 2000 only relevant material may be discovered.
· Rule 26(b)(1) need not be admissible, so long as it is likely to lead to admissible evidence.
· Rule 26(b)(2)(C) limits are an inducement to negotiate.
· Rule 26(c)(3) costs may be shifted when necessary
· Rule 26 duty to disclose only applies to materials you plan to use, not info that might be useful to your opponent. Cummings (2004).
