CIV PRO II
§ 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
§ 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.
§ Commencement of Action
§ “There shall be one form of action to be known as ‘civil action’.”
§ 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)
§ 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)
§ 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.
§ 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
§ 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.
§ 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
§ 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
§ 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)