Civil Procedure II
Professor Percy :: Fall 2012
HISTORICAL DEVELOPMENT
1. Early CL Distinction b/t Law and Equity
a. King’s Courts – CL court
i. Had to file via a writ.
b. Chancery Courts – Court of equity
2. Types of Reform (b/c old system too complicated and had no uniformity).
a. Early Reform – Code Pleading – did away with law/equity distinction and one set of rules applied.
b. FRCP
i. 1934 Rules Enabling Act – gave SC the power to propose rules for federal courts, but the rules, “shall not abridge, enlarge, or modify any existing right.”
ii. 1938 Adoption of FRCP.
3. Principles of the Federal Rules
a. Union of law & equity, same procedure for all cases in fed court (for simplicity).
b. Jury retained actions formerly “at law.”
i. Entitled to jury for CL actions, but not equitable actions.
c. Simplicity and liberal amendment in pleadings and motion practice.
i. Meant to prevent a second case b/c as you go through discovery, you learn new things, so need to be able to amend.
d. Liberal provisions for joinder of claims and parties (efficiency).
i. Can bring unlimited unrelated claims at once against one D.
e. Comprehensive discovery procedures.
i. Rules designed to get everything out there so no one is surprised at trial.
f. Reliance on discretion of trial judge.
i. Usually about motions – pay attention if discretionary motion or legal motion b/c maybe requires de novo (no discretion) review on appeal.
g. Simple provisions for appeal.
4. Functions of Pleadings
a. Give notice (notice pleading).
i. Judge say enough to give D notice what they’re being sued for.
ii. Don’t have to establish all elements in the complaint.
b. Dispose of legally or factually inadequate claims.
c. Establish facts
d. Guide parties and court through case (issues, discovery, evidence, jury instructions).
e. Create record.
RULES 1 AND 2
1. Rule 1 – Scope and Purpose of the Rules
a. These rules govern the procedure in all civil actions and proceedings in the US District Courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
b. Potential Conflicts
i. To be “just” is not congruent with inexpensive.
ii. To be speedy is not inexpensive.
iii. “Just” discovery is not speedy and not inexpensive.
2. Rule 2 – One Form of Action
a. There is one form of action – the civil action.
b. If it’s civil and you file in fed court, you’re under these rules.
3. Why Litigate?
a. Damages (compensatory, liquidated, punitive)
b. Injunctive relief
c. Other specific relief (constructive trust, account, rescission, reformation).
d. Declaratory judgment
e. Provisional remedies (TROs/preliminary injunctions)
ANATOMY OF A LAWSUIT
1. Pre Complaint
a. Procedural Steps
i. Client Interview
1. Factual Investigation – Rule 11 – Determine what client wants.
2. Conflicts check
3. Determine Statute of Limitations
4. Fee arrangement
ii. Determine if a Claim Exists
1. Legal Research – Rule 11
iii. Determine whether to proceed
iv. Settlement negotiations
v. Deciding where and when to file
b. Filing in State vs. Federal Court – Considerations
i. Clear schedule in fed court
ii. Atty’s comfort level w/ court rules
iii. More paperwork in fed court
iv. Trial judges
1. Big Article II Judge doesn’t read unless it’s a dispositive motion.
2. Baby Magistrate Judge deals w/ pretrial stuff.
v. Jury pool
vi. Unanimous jury verdict in fed court vs. 9 out of 12 in MS court
vii. Differences in procedural law
viii. Differences in evidentiary rules
ix. Makeup of governing appellate court
x. Time considerations
xi. Settlement possibilities
xii. Availability of ADR, mediation
xiii. Perceived bias
xiv. Cost
xv. Where to File?
1. Federal District Court – Oxford Federal Courthouse
2. Lafayette County Circuit Court – Square Courthouse
3. Fifth Circuit Court of Appeals – NOLA
4. MS Court of Appeals – MS Supreme Court.
xvi. Who are the Judges?
1. Fed District Court Judges, Northern District of MS
a. Michael Mills
b. Sharion Aycock
c. Neal Briggers
d. Glen Davidson
2. Circuit Court Judges, Third Circuit, MS
a. Andrew Howorth
b. John Gregory
c. Robert Elliot
2. Complaint
3. Responding to the Complaint
4. Discovery / Defining the Scope of Litigation
5. Pretrial Settlement/Mediation Conferences
6. Summary Judgment and Daubert Motions
7. Final Pretrial Conference/Order
8. Trial/Judgment
9. Post-Judgment Motions
10. Appeal
DRAFTING A COMPLAINT
1. Rule 3 – Commencement of a Case
a. “A civil action is commenced by filing a complaint w/ the court.”
b. Significance of the Date of Commencement
i. Subject Matter Jx
ii. Personal Jx – if they moved before date filed, PJ is questionable.
iii. Statute of Limitations
1. Generally filing tolls SOL in federal question cases.
2. In diversity cases, state law controls.
3. Under MS law, filing generally tolls SOL (as opposed to filing and serving).
iv. Race to the Courthouse Issues
1. The first P to commence is the one that commences.
2. In MS, there can be only one wrongful death action. If someone dies, they can’t all bring an action (they don’t get along and file 5 different actions).
2. Rule 8(a) – Pleadings
a. Claims Must Contain
i. (1) Short and plain statement for the grounds for jx.
ii. (2) Short and plain statement showing the pleader is entitled to relief.
iii. (3) Demand for relief sought.
3. Rule 8(a)(1) – Subject Matter Jurisdiction
a. Diversity
i. Allege the citizenship of each party (for a corporation, allege the state of incorporation and principal place of business).
ii. Amount in controversy > $75k, excluding interests and costs.
iii. Form 7 on p. 1221 for language.
b. Federal Question
i. “This court has jx over this case pursuant to 1331 b/c this case involved (cite fed statute or US const. provision).”
ii. Form 7 on p. 1222.
c. Supplemental
i. Claim is part of the same case or controversy pursuant to USC § 1367.
ii. Must allege the court has jx over some other part of the case.
4. Rule 8(a)(2) – Short and Plain Statement of the Claim (showing entitled to relief).
a. Notice Pleading
i. Does the pleading provide sufficient notice of the claim and relief sought to enable D to make an adequate response?
ii. Does the complaint contain allegations from which the material elements of the claim can be discerned?
iii. Plausibility
1. Conclusory allegations along are not sufficient; the allegation must demonstrate that the claim is “plausible.”
2. Must include enough allegations to make your claim plausible.
3. Best way to do this generally is to include facts to support each element of the claim.
iv. Example
1. D Doctor Smith performed brain surgery on P Jones on June 20, 2011. Since the surgery, P has been paralyzed and can no longer care for herself.
2. This is NOT enough b/c it does not allege causation or a breach of duty.
v. If there’s a failure to plead, the judge can give you a redo. If there’s not enough facts, the judge can dismiss.
5. Rule 8(a)(3) – Demand for Relief
a. Specify the Type of Relief
i. Money damages; equitable relief; declaratory judgment
ii. For equitable relief, must state specifically what you want.
b. Any reason to specify the amount of money damages?
i. Diversity case to satisfy amount in controversy.
ii. Strategic reasons?
iii. Rule 54(c)/Default Judgment Rule will ONLY award that relief requested.
iv. Be careful, some local rules prohibit requesting an amount.
1. MS – can’t ask for an amount in med mal cases.
6. Rule 54(c) – Demand for Judgment
a. A Default Judgment Cannot
i. Exceed the amount prayed for in the demand for judgment.
ii. Award relief different in kind from that prayed for in the demand for judgment.
b. Why not? D did not have notice.
7. Rule 8(d) and (e)
a. (d)(1) – pleadings must be simple, concise, direct.
i. Rare for a judge to throw out a case b/c it fails to meet this requirement.
ii. “Dismissed w/o Prejudice” – can refile as long as it’s still w/in SOL or you can argue SOL is tolled.
b. (d)(2) and (3) – alternative and inconsistent claims/defenses permissible w/in the confines of Rule 11.
i. Alternative Claims – may sue for negligent misrepresentation and fraudulent misrepresentation – it’s going to be one or the other, you won’t win both, but you don’t know which is your best case yet (b/c no discovery until after commencement).
c. (e) – pleadings are to be construed so as to do justice.
i. Purpose of Rules – avoid technical proceedings – can complain liberally; don’t have to dot every I.
d. Boilerplate Intro Sentences – she doesn’t like these; avoid latin, thereto, etc. Don’t say “P by and through, blah blah.” Intro sentences are ok if it’s a 20 page complaint and you want them to know what the case is about immediately. Then can be used to grap their attention.
e. Rule 8 Illustration
8. Rule 9 – Pleading Special Matters
a. (b) and (g) – establish heightened pleadin
advantages.
d. The complaint did NOT allege any specific facts about an agreement (no specific meetings where the alleged agreement was made, no memos, no dates or other evidence). A close reading of the complaint made it clear that Ps had inferred an agreement from the parallel behavior.
e. The complaint did allege an agreement/conspiracy.
i. “In the absence of any meaningful competition b/t the ILECs in on another’s markets, and in light of the parallel course of conduce that each engaged in to prevent competition from CLECs w/in their respective local telephone and/or high speed internet services markets, and the other facts and market circumstances alleged above, Ps allege upon info and belief that the ILECs have entered into a contract, combination, or conspiracy to prevent competitive entry in their respect local telephone and/or high speed internet services markets and have agrees not to compete w/ one another and otherwise allocated customers and markets to one another.
f. Holding
i. Factual allegations must be sufficient to raise the right to relief above the speculative level. The alleged facts must plausibly suggest an agreement.
ii. The allegations are more consistent w/ an obvious alternative explanation.
iii. Overturned Conley.
g. How could Ps have avoided dismissal?
i. Asserting specific facts supporting a conspiracy OR
ii. Pleading facts that tend to exclude independent self-interested conduct as an explanation for Ds’ parallel behavior.
15. Ashcroft v. Iqbal (2009)
a. Iqbal filed a Bivens claim against Ashcroft and Mueller alleging they violted the constitution by subjecting him to harsh conditions while in confinement based on his race, religions, or national origin.
i. Court – “A complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’”
1. The court does not have to accept bare legal conclusions as true.
2. “Determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”
b. The complaint alleged Ds knew of, condoned, and willfully and maliciously agreed to subject him to harsh conditions of confinement as a matter of public policy, solely on account of his race, and/or national origin. The complaint also alleged Ashcroft was the primary architect of the policy and Mueller was instrumental in its adoption and execution.
i. Court – this is a bare legal conclusion – no assumption of truth.
c. The complain alleges the FBI, at the direction of Mueller, arrested and detained thousands of Arab Muslim men.
i. Court – these allegations are consistent w/ P’s allegations against D but are also consistent w/ a more “obvious alternative explanation” that a legal policy to arrest and detain people based upon suspected links to the attacks or Al Qaeda would have a disparate impact upon Arab Muslims.
d. The complaint alleged Ds approved the policy of holding post-Sept 11th detainees in highly restrictive conditions of confinement until they were cleared by FBI.
i. Court – this is a factual allegation (not a bare conclusory one) but it is NOT plausible to conclude that intentional discrimination is at work b/c there is an obvious alternative explanation.
e. Two-Pronged Approach
i. Determine if the allegation is a factual allegation or a bare legal conclusion.
ii. Examine the fact allegations to determine if P’s claim is plausible.
16. Hamilton v. Palm (2010)
a. Does complaint plausibly allege that Hamilton was employee rather than independent contractor (thus designating a duty on the employer)?
b. Form 13
c. Other facts were alleged –
i. Ds provided unsafe tools/equipment.
ii. Failed to provide safe tools/safety equipment.
iii. He performed work as directed by Ds.
d. Doesn’t have to be probable to be plausible (can be improbable).
