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Civil Procedure I
University of Mississippi School of Law
Hoffheimer, Michael



Fall 2013


Complaint – F. R. Civ. P. 11

· (a) Signature

· (b) Representations to the court – by signing attorney certifies that it was formed after an inquiry reasonable under the circumstances:

o not presented for any improper purpose

o claims/defenses/legal contentions are warranted by existing law or by a nonfrivolous/”good faith” argument for extending, modifying, or reversing existing law or establishing new law

o factual contentions do or will have evidentiary support

o denials of factual contentions are warranted on evidence, or, are reasonable based on lack of information

· (c) Sanctions

o General: (1) IF, after notice of the violation from the court and a reasonable opportunity to respond, the court finds that Rule 11(b) has been violated, the court may impose appropriate sanctions

o How:

§ (2) Motion for sanctions – must be made separately and describe the specific conduct that allegedly violates Rule 11(b); motion must be served under Rule 5, but not filed or presented to the court if the challenged document (etc.) is withdrawn or appropriately corrected within 21 days of service, or another time the court sets

§ (3) On the court’s initiative – sanctions can be given and party in violation is not given the 21 days to correct

o What: (4) a sanction must be limited to what suffices to deter repetition of the conduct. Include: nonmonetary directives; order to pay penalty to the court; or fees and other expenses that result directly from the violation (this one only used if imposed on motion and warranted for effective deterrence – limits monetary sanctions, only used by motion, not when court grants sanctions, and only to the extent effective to deter)

o Bridges – goal of Rule 11 sanctions is to deter improper conduct (D’s motion for sanctions dismissed when P’s attorney acknowledged its error)

· Bell – Rule 8 says complaint requires only a short and plain statement of the claim showing that the pleader is entitled to relief


· Do nothing: default judgment

· Pre-Answer Motion: Rule 12(b) Defenses (7) that can be offered:

o Lack of SMJ

o Lack of PJ

o Improper venue

o Insufficient process

o Insufficient service of process

o Failure to state claim upon which relief can be granted, and

o Failure to join a party under Rule 19

· Answer: Get here when D files and answer or files a Rule 12 motion and looses: 2 essential variations:

o (1) D denies the truth of one or more of the allegations of the complaint

§ point-by-point affirming or denying EACH allegation (not doing so could = admission)

§ must deny without making an affirmative statement that you cannot support/prove

o (2) D asserts additional matters that will wholly/partially defeat P’s claim

o Rules of Answers: 21 days to respond to complaint

§ Answer/Response – doesn’t bring it to the court/judge’s attention

§ Pre-answer Motion– only for things in Rule 12(b)(1-6); brings the case to the court bc it asks the court to do something

· Counter-claims – Rule 13(a-b)

o (b) Permissive counterclaims – pleading may state a counterclaim against an opposing party; any claim that is not compulsory

o (a) Compulsory counterclaim – must state a claim that the pleader has at the time of service against the opposing party if the claim: (1) arises out of the same transaction/occurrence, and (2) does not require adding another party over whom the court cannot get jurisdiction – if you don’t bring a compulsory counterclaim you loose it ***what if it requires adding a party who the court can get jurisdiction over??***

· Cross-claims – between Ds – Rule 13(g)

o Pleading may state cross-claim against a co-party if the claim arises out of the same transaction/occurrence, or relates to any property that is the subject of the original action. May include a claim that the co-party is/may be liable to cross-claimant for all/part of a claim asserted against the cross-claimant

· Impleader/Rules of Joinder – 3rd party complaints – Rule 14

o (1) D, as 3rd party P, may serve summons and complaint on a non-party who is/may be liable to it for all/part of the claim against it. But, 3rd party P, must, by motion, obtain the court’s leave if it files the 3rd party complaint more than 14 days after serving its original answer

o Amended and Supplemental Pleadings – Rule 15(a)(2)

§ The court should freely give leave when justice so requires (generous standard)

§ Amended complaint – allowed/encouraged because after discovery, for a certain time, new theories of the case must be developed on both sides

o Larson – atty hired to pursue claim against insurance co; atty didn’t act, client finds new attorney and the case is removed to federal court, the client then alleges breach of fiduciary duty against the 1st attorney and wants to add him to the case – this destroys complete diversity and the case would have to return to state court

§ Was the joinder appropriate? Court says yes, Ps were not able to find out until after discovery that the second D should be added and we will encourage joinder because it lowers cost and improves the efficiency of the court system.


· Where the facts of the case are developed.

· Kinds of discovery:

o Disclosures – parties must voluntarily provide specific info, even if not requested (know the list):

§ (1) names, addresses, etc. for any people who may have discoverable information.

§ (2) copies of the physical documents that will potentially be evidence

§ (3) computation of damages; with theories and info to support

§ (4) insurance policy that may apply to compensate damages

o Interrogatories

o Depositions – hearings conducted by lawyers and reported by a court reporter

o Request for Admission – requests for the other party to admit whether something is true or not; requires a response, no response = admission; works to streamline cases (authenticate documents, etc.)

· Butler – Ds trying to get info from doc who treated P about other patients, the info is not directly related but D is trying to prove a possible bias/expose possible conspiracy; raises question of what is discoverable. Info discoverable but expensive to discover so court says D has to pay ½.

o Anything that is not privileged and is relevant is discoverable.

Motions for Summary Judgment and J.N.O.V.

Rule 56 Summary Judgment

· After pleading; and after discovery has been developed on the issues (Must be filed pretty early on.)

Ways of short-circuiting the trial process. Raises common issues:

· 7th Amendment (doesn’t apply in state court) – when it is a common law suit and the value in controversy exceeds $20, the right of trial by jury must be preserved (doesn’t create new right, must be already recognized right to jury trial) – no fact tried by jury shall be otherwise re-examined

· Rule 56 doesn’t let some cases get to a jury trial; is it a violation of the 7th Amendment?

These rules all deal with places where there is an already recognized right to a trial by jury; this right does not exist in:

· Preliminary motions, or

· Many proceedings in common law (equity, habeas corpus)

Limits the right to trial by jury

(a) if movant shows that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law (can be on the entire case OR a single issue);

(b) motion for it may be filed at anytime until 30 days after the close of all discovery, or the court can rule otherwise – can avoid summary judgment motion by creating a fact

s are final and not on review by the S.C., EXCEPT, by writ of certiorari; SC grants cert review by affirmative vote of 4 members


· There has to be some connection btw either the person (D), or the subject matter – basic fairness issue


· Pennoyer v. Neff

o Rule: there is a due process violation in certain methods of service – in this case the state’s stature requirements of service were followed, but then ruled inaccurate/unconstitutional

o Due process clause: “nor shall any state take prohibition of life, liberty, or property without due process”

o Due process is violated and makes void any action in personam, when served against a non-resident, when service is given constructively, and when he does not appear.

o States have exclusive power over persons and property that are within the state, AND states can’t exercise jurisdiction outside their territory on persons or property. (principles of sovereignty)

o What it means for jurisdiction generally:

§ In rem – seizing property in the state at the outset of an action is good

§ In personam – person served with process in the state is good

o What is allowed under due process:

§ Personal jurisdiction when a person has engaged in certain actions within the state. If a citizen/domiciliary leaves the state he is still subject to personal jurisdiction bc he still has a relationship with the state.

o Constructive notice is unconstitutional bc it is constructive – outside of the exclusive rights of the state.

o Judgment against Neff is invalid bc: the constructive service is unconstitutional, so the land couldn’t be added after bc the judgment was already void

o Holding: (1) an action in personam against a non-resident based on constructive service where the party didn’t consent or didn’t appear is void; (2) an action in rem is allowed; (3) an action in personam is allowed when service is in state (or out of state of a resident).

o Underlying philosophy: court’s theory of power based on rules of public law:

§ (1) state has exclusive power over things in the state (land/people)

§ (2) states can’t reach outside the state

o Consequences – what is allowed:

§ Actions in rem

§ Actions against a citizen (in or out of the state)

§ Actions against non-citizens done by personal service in the state

§ Actions in which there is consent to PJ

· Consent:

o If you don’t object properly

o How to oppose:

§ Special appearance

§ Don’t do anything & get default judgment. If there is no PJ the judgment will be void. (risk)

§ Pre-answer motion to dismiss for lack of PJ (Rule 12)

§ Object to personal jurisdiction as a part of your answer.

o Rule 12(g) – if you file a motion on any ground you may join together any other motions under Rule 12(b)

o Rule 12(h) – if you don’t make any motion under rule 12 and don’t include any of the specific motions under 12(b), you loose the right to object; must consolidate your lack of PJ motion or you waive it