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Civil Procedure II
University of Mississippi School of Law
Percy, E. Farish

Percy
CIV PRO II
2011


BACKGROUND

§  Our civil procedure derives from England from the King’s Court
§  At King’s Court, a writ was filed, and a certain type of response had to be chosen:
o   Dilatory Plea:  challenge to jurisdiction; challenge to P’s ability to bring the action, e.g. not ripe; challenge claiming defective pleading; etc.
o   Peremptory Plea:  went to merits; demurrer-challenge legal sufficiency of writ; traverse- deny factual allegations; confession and avoidance- affirmative defenses.
§  1930s:  Congress passed Rules Enabling Act- statutory authority giving USSC authority to propose rules governing fed’l courts.
§  1938:  Adoption of Rules of Fed’l Procedure.

Principles of the Fed’l Rules:
§  No longer a distinction b/t law and equity (in fed’l ct)
§  Simple and allow liberal amendments in pleadings/motions
§  Allow for liberal joinder of claims and parties
§  Comprehensive discovery procedures
§  Discretion given to trial judge

Functions of Pleading:
§  Give notice to other side
§  Dispose of legally/factually inadequate claims.


FEDERAL RULES OF CIVIL PROCEDURE

Rule 1
§  Scope and Purpose of Rules
§  Govern all U.S. district courts. 
§  Doesn’t distinguish b/t law and equity.
§  Rules construed and administered to secure the just, speedy, and inexpensive determination of every action.

Rule 2
§  Commencement of Action
§  “There shall be one form of action to be known as ‘civil action’.”

Rule 3
§  Commencement of Action
§  “A civil action is commenced by filing a complaint with the court.”
§  Date impt. For SMJ, PJ and SOL
§  Fed’l Q Cases:  Filing complaint tolls SOL.
§  Diversity Cases:  State law applied (MS allows tolling)

Rule 8
§  General Rules of Pleading (applies to ANY claim: cross/counter/3rd party etc)
§  R.8(a) A pleading must contain:
o   8(a)(1) A short and plain statement of the grounds upon which the court’s jurisdiction depends
§  Diversity Cases:  Must state citizenship of each party.  For corporations, must state state of incorporation and PPB.  This is to demonstrate diversity.  Must state you meet amount in controversy. >75K. Don’t forget supplemental jurisdiction.
§  Federal Question:  State: “This ct has jurisd. over this case pursuant to 1331 b/c this case involves [fed’l statute or US Const.].
o   8(a)(2) A short and plain statement of the claim showing that the pleader is entitled to relief (Notice Pleading) Need sufficient notice of claim/relief sought for D to respond. Can material elements be discerned from allegations? Can you infer D, B, C and D?
o   8(a)(3) A demand for judgment for the relief
§  Not required that you demand specific dollar amount, so long as you allege you are entitled to more than 75K (for diversity jurisd)
§  Must specify money, equitable relief or declaratory judgment.
§  Default judgment rule will only award that relief requested.
§  R.8(e)(1):  Pleading must be concise and simple.
§  R.8(e)(2):  Alternative and inconsistent claims are allowed within confines of Rule 11.  E.g. Sue drug manufacturer for failure to warn and defective design.
§  R.8(f):  “All pleadings shall be so construed as to do substantial justice” (liberally)

Rule 54(c):
§     Demand for judgment
Default judgment cannot:
o   Exceed the amount prayed for in the demand for judgment
o   Award relief different in kind from that prayed for in the demand for judgment.

Rule 9
§  Pleading Special Matters
§  Lists certain claims that have special requirements:
o   Capacity:  Unless necessary for a cts SMJ over the dispute, a pleading need not aver capacity.  A challenge to P’s capacity must be done so by specific negative averment in a responsive pleading.
o   Fraud, Mistake, Condition of Mind:  The circumstances constituting fraud or mistake shall be pled with particularity.
o   Conditions Precedent: Generally that all conditions precedent have occurred/performance.  However, a reply alleging that a requisite condition precedent has not occurred must be set forth specifically and with particularity.
o   Official Document or Act:  Only parties opposing an official document need specifically assert the defect in the official document. 
o   Judgment:  Specifically identify the judicial body, date of judgment, parties participating, and character or effect of judgment
o   Time and Place:  NOT required to be specifically averred, but if they are, can be considered in testing sufficiency of pleading. 
o   Special Damages:  must be pled with particularity.  Emotional distress, attorney’s fees, punitive damages, defamation damages, etc.
o   Admiralty and Maritime Claims

Rule 10
§  Form of Pleadings
§  R.10(a):  Every pleading must have:  name of court, title of action (all parties named in the complaint), and the file number. (Rule 7(a) designation)
§  R.10(b):  Averments shall be made in numbered paragraphs.  Separate defenses and claims founded upon separate transactions/different set of circumstances during transaction.
§  R.10(c):  Earlier paragraphs can later be adopted by reference.  Anything attached to complaint (exhibit) is deemed part of pleadings.

Rule 38
§  Jury Trial of Right
§  Any party may demand a jury trial by:
o   Serving demand on other parties in writing not later than 10 days after the service of the last pleading directed at such issue; and
o   Filing the demand as required by Rule 5(d) (certificate of service rule)
§  Percy:  Best pra

someone of suitable age and discretion
o   Mailing:
§  To last known address. 
§  Service is complete upon mailing.
§  If no address can leave with the court.
o   Electronic Mailing:
§  Keep transmission receipt; must have been consented to beforehand.
§  Must file certificate of service for all papers.
§  5(e): File complaint and summons in clerk’s office in person, mail (upon receipt) or electronically (local rules), fax (local rule)
§  Local Rules: may require certain # of copies and civil cover sheet.
§  Filing Fee:  $350

Rule 12
§  Defenses and Objections-When and How Presented-By Pleading or Motion-Motion for Judgment on the Pleadings
§  R.12(a):  Answer must be filed within 20 days after being served w/ summons and complaint.  If service of summons is waived, 60 days from date waiver sent. 
§  R.12(a)(4):  If D files a R.12 motion to dismiss, D’s obligation to answer is tolled to 10 days after courts denial of motion. 
§  R.12(b):  Motions
1) Lack of SMJ
2) Lack of PJ
3) Improper venue
4) Insufficiency of Process
5) Insufficiency of service of process
6) Failure to state a claim
-can be dismissed b/c it asserts a claim not cognizable as a matter of law OR b/t it fails to allege sufficient facts to support a legally cognizable claim
-Ct. must accept all allegations as true, resolve doubts in favor of claimant, and view in light most favorable to non-moving party.
– legal motion reviewed de novo
– court cannot consider evidence outside of the pleadings
7) Failure to join a party required by Rule 19.
§  R.12(h):  Waiveable Defenses!!!  These must be included in the answer (or else!)
1.      Lack of PJ
2.      Improper Venue
3.      Insufficiency of Process
4.      Insufficiency of Service of Process
àNOTE:  If left out of answer, may file amended answer (see R.15 below)
§  R.12(c):  You cannot file a second R.12(b)6 motion to dismiss, BUT, if omitted it can later be filed as a 12(c) Motion on the Pleadings
§  R.12(e):  Motion for a more definite statement
§  R.12(f):  Motion to Strike (redundant, immaterial, scandalous matter)
§  Note:   Rule 12 motions are subject to R.5 Serving requirements (can mail)