Civil Procedure I Outline

Civil Procedure Outline
Friday, November 23, 2007
9:13 AM
 
Introduction
1.              Introduction
1.                    United States v. Hall
 
Pleadings
 
1.              The Complaint
1.                    The Standard Complaint
                                     i.                                Rules
a.                                Rule 3: A civil action is commenced by filing a complaint with the court
b.                                Rule 8: 
a.                                      Claim for Relief – a pleading that states a claim for relief must contain:
1.                                            Short and plain statement of grounds for jurisdiction, unless no additional jurisdictional support is needed
2.                                            Short and plain statement of the claim showing entitlement to relief
3.                                            A demand for relief sough, may include relief in the alternative or different types of relief
d.                                      Pleading to be concise and direct; alternative statements; inconsistnecy
1.                                            Each allegation must be simple, concise, and direct, no technical form required
2.                                            Alternative statements of a claim or defense – party may set out 2 or more statements of a claim or defense alternatively or hypotheticllay, either in a single court or defense or in separate ones. If a party makes alternative statements, then pleading is sufficient if any one of them is sufficient
3.                                            Inconsistent claims or defenses – consistency doesn’t matter, party can state as many claims or defenses as it has
e.                                      Construing Pleadings – pleadings must be construed as to do justice
c.                                 Rule 10: Form of Pleadings
a.                                      Caption; Names of Parties – what a pleading must have in the caption
b.                                      Paragraphs; Separate Statements – party must state claims or defenses in numbered paragraphs, each limited to a single set of circumstances. Later pleading may refer to numbered paragraphs. The same rules apply to defenses
c.                                       Adoption by Reference; Exhibits – Statement in a pleading may be adopted by reference elsewhere in the same or any other pleading or motion. Copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes
                                   ii.                                Purpose of complaints
a.                                To notify defendant, set parameter of the suit
b.                                First opportunity to declare that party has been wronged
c.                                 Nail down what the case is precisely about
d.                                Screening fro frivolous claims
                                 iii.                                Dioguardi v. Durning
a.                                Italian guy who feels that he got screwed regarding some unclaimed merchandise, court dismissed complaint an the ground that it failed to state facts sufficient to state a cause of action, with leave to plaintiff to amend
b.                                Under new rules, no requirement of stating facts sufficient to constitute a cause of action, only require a short and plain statement, etc.
                                 iv.                                Conley v. Gibson
a.                                Union not properly representing black employees
b.                                A complaint should not be dismissed for failure to state a claim 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
c.                                 Rules do not require a claimant to set out in detail the facts upon which he bases his claims
d.                                Simplified notice pleading made possible by the liberal opportynity for discovery and the other pretrial procedures established by the rules to discloses more precisely the basis of both claim and defense
                                   v.                                Swierkiewicz
a.                                Man claims that he was fired on the basis of his national origin (Turkish man fired by French man who then hired another French man)
b.                                Pleading is sufficient because it gives respondent fair notice of petitioners claims
c.                                 An employment discrimination plaintiff need not plead a prima facie case of discrimination
2.                    Heightened Pleading Standard
                                     i.                                Rules
a.                                Rule 9(b) – Fraud or mistake; conditions of mind – in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake, malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally
                                   ii.                                Bell Atlantic Corp. v. Twombly
a.                                Plaintiffs allege that the ILECs have entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone markets and have agreed not to compete with on another
b.                                Proof of a conspiracy must include evidence tending toe exclude the possibility of independent action
c.                                 Stating a claim requires a complaint with enough factual matter to suggest than an agreement was made
d.                                To make a claim, allegations must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct
e.                                Claims in these types of cases must be sufficient to survive a motion to dismiss because discovery is so expensive
a.                                      Why should defendant be subject to discovery when all the plaintiff has is bare allegations
b.                                      Discovery as abuse
                                 iii.                                Rodi v. Southern New England School of Law
a.                                Plaintiff claims that administrators at the school made false representations as to whether the school would become ABA approved, and that based on these representations he stayed at the school, and now cannot be admitted to the bar
b.                                In ruling whether a plaintiff has stated an actionable claim, the court must consider the complaint, documents annexed to it, and other materials fairly incorporated within it
c.                                 specificity requirement extends only to the particulars of the allegedly misleading statement itself. The other elements of fraud, such as intent and knowledge, may be averred in general terms
d.                                When a claim sounding in fraud contains a hybrid of allegations, some of which satisfy the strictures of Rule 9(b) and some of which do not, an inquiring court may sustain the claim on the basis of those specific allegations that are properly pleaded
                                 iv.                                PLSRA – heightened pleading standards for securities fraud
a.                                The complaint must state with particularity the facts on which the belief was formed
                                   v.                                Three levels of pleading standards
·                                   Rule 8 standard < Rule 9(b) for fraud < PSLRA (for securities fraud) 2.              The Response to the Complaint 1.