CIVIL PROCEDURE II
Spring ’04 Prof. Pittman
PLEADING: VI
-Pre-complaint events; Post complaint events; (ex. Interview of a client), after client interview draft a complaint complies w/ rule 8.
-If all relevant facts & proper legal research not given than possible rule 11 sanctions.
-Rule 12 (b)(6): dismissal; failure to state a claim upon which relief can be granted.
-Responses: 1) does state a claim upon which relief can be granted 2) If does not state a claim than amend the complaint under rule 15
-Complaint must 1) Invoke some body of law 2) It relates a set a facts that fall under the umbrella of that body of law.
-Rule 8 (a)(2): short statement can be facts as well as legal conclusions.
-3 grounds for juris 1) supplemental 2) diversity 3) Fed Question
-Rule 12 (b)(1): dismiss for lack of jurisdiction
-Rule 15: Judge will normally allow for amendments; unless you act in bad faith or cannot amend the complaint
-Rule 8 notice pleading
If you file a waiver of service of process than you have 60 days to file an answer instead of 20 days.
-Rule 11 controls the drafting of the complaint
Zielinski v. Philadelphia Piers: A vague denial of liability constituted a bad faith pleading.
Layman v. SW Bell: An easement was an affirmative defense, listed in Rule 55.08, Rule 8, & had to be plead in the D’s answer.
Beeck v. Aquaslide: the leave to amend should be “freely granted” unless there was bad faith or a dilatory move on the part of the movant.
-Rule 55: Motion for default, all of the defenses in the complaint are true
-Rule 9: “Fraud or Mistake,” Rule 8: Heightened pleading standard, affirmative defenses to be plead.
-Rule 15: Amendment given usually, except in undue delay, bad faith, repeated failures to sure problem that you are pleading from previous amendments, undue prejudice to the other party, dilatory motive, fatality of the amendment, some evidence has been lost.
Answer & Pre-Answer motion: Lack of sbj matter jurisdiction, personal juris, improper venue, insuff of process & service process, failure to state a claim for which relief can be granted, failure to join a party.
-If you do not raise a counter claim you lose it, unless the court allows for an amendment
-Rule 19
-Rule 12(b) affirm defenses;(e) motion for a more definite statement;(f) motion to strike
Moore v. Baker: Rule 15(c) case: the SOL limits an amendment to the complaint after the initial limitation period unless it “relates back” to the original complaint.
Bonerb v. Richard J. Caron Foundation: In determining whether a claim relates back to the original complaint in violation of the statute of limitations, the court must determine whether the new claim arises from the same transaction & whether the defendant was put on notice of the claim by the plaintiff’s original complaint.
DISCOVERY: VII
Blank v. Sullivan & Cromwell: Probative value of hiring practices in relation to sex discrimination creates discoverability under Rule 26(b)(1) & is “relevant” under the meaning of that rule.
Steffan v. Cheney: P was discharged from the Navy because he was a homosexual, so questions regarding his homosexual conduct are irrelevant for discovery purposes under Rule 26(b)(1).
-Rule 26(b): mandatory disclosure; disclose the names & addresses of any witnesses you will use; the penalty would be that you cannot use these witnesses, documents, etc.
Stalnaker v. K-Mart Corp.: D filed a motion to protect no party witnesses from discovery concerning there romantic conduct. Rule 26(c) allows for protective orders due to embarrassment, etc., though even though Fed Rule of Evidence 412 bars evidence of past romantic conduct, the court will not bar it’s entry in this lawsuit as long as it is not used outside this matter.
Schlagenhauf v. Holder: Rule 35(a) petitioners must show that D’s mental &/or physical health meet the “in controversy” & “good cause” requirements. The pleadings alone are not enough to support this finding.
Hickman v. Taylor: The “work product” of the attorney is protected from discovery. All relevant & non-privileged materials prepared by the attorney “with an eye toward litigation” are free from discovery unless the party seeking discovery can show 1) a substantial need for the materials & 2) an inability to obtain equivalent material by other means.
Rule 33: Interrogatories; (b)(4) must have a timely objection or that objection to that interrog is waived.
Rule 34: Request for production of documents
Thompson v. The Haskell Co.: R. 26(b)(4) does not preclude a psycho report obtained by P’s prior counsel & sought by D in discovery. The report was highly probative, even though the expert was not going to testify because it evaluated P’s mental state just 10 days after her discharge from her job.
Chiquita International Ltd. v. M/V Bolero Reefer: A nontestifying marine surveyor hired by a party to inspect a vessel involved in litigation classifies as an “expert” for purposes of Rule 26(b)(4). Yet, D is not entitled to discovery of that report under the exceptional circumstances clause as D had a chance to find their own expert.
Chudasama v. Mazda Motor Corp: The court has the discretion to punish the failure to disclose in discovery with a default judgment under Rules 26(g)(3) & 37(b)(2). The court abuses its discretion when it mismanages a case in a way that significantly prejudices a party’s rights.
RESOLUTION WITHOUT TRIAL: VIII
Consent Decree: A court decree that all parties agree too. (or consent order).
Default Judgments: Rule 55 (when the D fails to file a timely
parties toward an agreement.
Advantages & Disadvantages: Mediator can bring in a trusted 3rd party who can bring new perspective to the problem & thereby facilitate an agreement between the parties, yet a mediator lacks the power to coerce an agreement between the parties or to rule on the rights & obligations of the parties.
Lockhart v. Patel: A trial judge has the authority to order parties & their insurers to attend settlement conferences & to impose sanctions for failure to attend.
Contracting for Adjudication: Arbitration: Arbitration is private, nonjudicial adjudication of disputes. Unlike the mediator or third-party presider in a minitrial, the 3rd party in arbitration, called the arbitrator, has authority to decide disputes, by oral or written decision, after hearing both sides. Arbitration arises from prior agreement between the parties. The Federal Arbitration Act (9 U.S.C. § 2) allows agreements to arbitrate that are not unconscionable or the product of adhesion to be enforced in federal courts. The decisions are judicially enforceable & are usually subject to usually subject to judicial review only on procedural grounds, such as: the arbitrator acted beyond her authority as specified in the governing arbitration agreement, acted irrationally, or was subject to undue influence (i.e., bribery or physical threats).
(Pitt says on exam)
Federal Arbitration Act 9 U.S.C. § 2
Validity, irrevocability, and enforcement of agreements to arbitrate
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
§ 10. Same; vacation; grounds; rehearing
(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration–
