Kirst Civil Procedure Fall & Spring 2012-2013
1) Pleading
a) Complaint
i) Must identify who will be sued and which claims will be made. At this point, the lawyer will also decide the jurisdiction.
ii) FRCP 8(a)(2)-A short and plain statement of the claim showing that the pleader is entitled to relief.
(1) There is a fine line here, you must state enough to show that there is a cause of action. Too much information can get you in a bad place or too little you can fail to state a claim.
iii) Pleading the elements
(1) Must have the elements of the claim required by substantive law.
b) Summons
i) Sent to the defendant which is a copy of the plaintiff’s pleadings and commands the defendant to appear in court.
c) Defendants response
i) Denial of facts
(1) Creates an issue about the truth of the facts
ii) Responsive Pleading
(1) Answer
(a) Have 21 days after a summons or the complaint-12(a)(1)(A)(i)
(2) Affirmative Defense
(a) Adds new facts, and, in turn, creates a new issue
(b) A bunch of affirmative defense under rule 8
iii) Procedural Objections
(1) Most of these are Jurisdictional and we are not there yet.
iv) Objections of the sufficiency of the claim
(1) Rule 12(b)(6) Failure to state a claim upon which relief can be granted
(a) Cannot contain matters outside of what is plead then it will be treated as a rule 56: Summary Judgment.
(i) A lot of times when looking at a 12(b)(6), it depends on whether the parties have a duty. If no duty by the defendant then they will dismiss.
1. Pachero v. US
a. If they in a way invited them to swim, then they have created a duty to protect.
(b) If the 12(b)(6) is denied 12(a)(4)(A) you have 14 days after that.
v) Responses
(1) Denial
(a) 8(b)
(i) A parties denials shall fairly meet the substance of the averments denied.
1. Cannot just blankly deny each allegation in a boilerplate fashion.
(ii) General vs Specific Denials
1. Denial to each claim or general denial to everything.
(iii) Shillman v US
1. A defendant cannot purposefully delay a case and enter into extensive litigation til a point when they can use a 2 part defense of: (1)You named the wrong people, so you have no claim against us; (2) The statute of limitations has run and you can’t sue the other.
(2) Can plead multiple defenses, no matter how inconsistent
(a) 8(d)(3)
(i) A party may state as many separate claims or defenses as it has, regardless of consistency
(b) Can say that the person voluntarily left and if the jury finds differently, her termination was justified by poor job performance. The court must hear evidence on both if they want plead them (Smith v. Cashland)
b) Amending Complaint
i) A party can amend under rule 15(a) of both Nebraska and Federal
(1) Nebraska
(a) As a matter of course before a responsive pleading is made
(b) If it is not a responsive pleading, then within 30 days
(i) 12(b)(6)
(c) If a responsive pleading is made, then only by leave of the court or by written consent of the adverse party
(i) Leave of the court
1. To be “freely granted”
a. Or, when justice so requires.
(2) Federal
(a) 21 days after serving it
(b) 21 days after the responsive pleading or after a 12(b), (e), or (f), which ever is earlier
(c) In all other cases, written consent or the courts leave, leave to be given freely when justice so requires.
i) Pleading Theory
(1) Although a party may not recover on multiple theories, a party may plead multiple theories, leaving the ultimate election for the court.
(a) Must be a good faith reason to plead in the alternative
(2) When pleading an alternative defense, it is not on the complaint that must prove the issue, it is up to the defense to prove by a preponderance. (Gomez v. Toledo.) In this case, they moved for a 12(b)(6) based on qualified immunity and the fact that they didn’t say bad faith, the appellate court stated that the plaintiff did not need to claim bad faith because qualified immunity is a defense and it is up to the defendant to prove it.
c) Council
i) Sanctions
(1) Rule 11-Attorneys risk sanctions for improperly filling
(a) 11(b)-A party by presenting a claim is stating that to the best of the person’s knowledge or after a reasonably inquiry, they believe:
(i) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation
(ii) The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying or reversion existing law or for establishing new law.CANNOT HAVE MONETARY DAMAGES ON THE PARTY.
(iii) The facial contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
(iv) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or lack of information.
1. Rule 11 just needs to be served to the other party, they then have 21 days to dismiss, then after 21 days they can file the motion with the court and the court can decide.
(b) Chaplin v Dupont
(i) Dupont made a new employment rule that no more Confederate Flags could be flown. An attorney brought suit trying to expand Title VII to include National Origin but they also include religion and race. The court says that the 2 other claims have no factual basis.
1. The attorney and party can then be sanctioned under 11(b)(3) because there must be evidence to show the claim or the attorney must say that if they are permitted to do discovery they will be able to present evidence.
(c) Clement v Public Service
(i) Not reading a whole statute is not a good reason to fail to file something. 11(b)(2) covers this. But it is not always necessary to fine an attorney, a reprimand in open court might be enough.
(d) Early v. Bankers Life-
(i) ambiguous language in the pleading highlights whether or not a proper investigation took place. State your claim if you have one. Don't bring one if you’re not sure
ii) When there is a difference between the pleadings and the trial evidence, there is a decision to be made.
(1) Lewis v South San Francisco Yellow Cab
(a) Complaint alleges that the cab driver made advances towards her, the testimony is that the sailor made advances and the cab driver didn’t take her home right away. She could have plead that he didn’t protect her but she did not do that and she did not try to amend.
(i) When the facts are entirely separate than those plead, so much so, that they will create a new cause of action, the trial judge should move for a nonsuit.
(ii) Probably would not have allowed to amend because it would have been for an entirely different cause of action.
(iii) Different variances
1. Immaterial Variance, small things that dont matter and dont effect the lawsuit
2. Material Variance, a variance big enough but not fatal. Usually can amend.
3. Fatal Variance, plead one thing and said something else.
(2) Sanden v Mayo Clinic
(a) Malpractice claim that was fraudulent
(i) The defendant did not state fraud as a specific defense.
1. They claim that 8(c) requires them to state it as an affirmative defense.
2. The court says that this is different than an affirmative defense, it is not a “yes, but” it is a simple “No” this is all fraud.
(3) Allianz Versicherungs, AG v. Profreight
(a) A contract has a limited liability and the case was brought to argue for the actual value
(i) The defendant did not answer with the affirmative defense of “limitation of liability” that would have needed to be plead under 8(c).
(ii) 8(c) states that fails to follow the rule usually results in a waiver, but not in this case.
1. Because it wasn’t prejudiced
2. NOT REALLY SURE WHAT TO TAKE AWAY FROM THIS CASE
d) New Pleading theory…
i) “A complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle it to relief” (Conley v Gibson)
(1) This was misinterpreted as anything is good enough as long as it could possibl
(1) FRCP 45-Subpeona
(a) 45(a)(2) A subpoena must be issued
(i) B-For attendance at a deposition, from the court for the district where the deposition will be taken.
(b) HAVE TO LOOK IN TO, BUT YOU CAN BE HELD IN CONTEMPT IF YOU DON’T SHOW UP.
1. If they are not in the US, this will do you no good. (Dupont v Kolon)
(2) Last option to force attendance.
(a) FRCP-37(d)(1)-Sanctions for failure to respond
(i) A party or a party’s officer, director, or managing agent-or a person designated under Rule 30(b)(6) or 31(a)(4)-fails, after being served with proper notice, to appear for that person’s deposition.
(ii) Worst case sanction in this case is that you could lose the lawsuit.
(iii) 37(b)(2)(a) shows the other options for sanctions
(3) Let’s say you just want anyone to show up and bring some documents. SEND ANYONE. Fred the file clerk.
(a) FRCP 30(b)(6) Notice or Subpoena Directed to an Organization.
(i) Name a corporation, organization or etc.
(ii) The organization then must name who they are going to send.
(4) Exception to having to respond.
(a) 26(c)-Protective Orders.
(i) May protect against annoyance, embarrassment, oppression, or undue burden or expense.
1. A-G what they can do, including forbidding the disclosure
(5) Still want them to be deposed.
(a) 37(a) Motion for an Order Compelling Disclosure or Discovery
(i) Must have made a good faith effort to deal with the opposing party before moving for this. Judges hate to get involved in discovery.
(b) If they do not comply with the order,
(i) 37(b) Failure to Comply with Court Order
1. Same sanctions as those from 37(d), anything from dismissal to other things.
e) Interrogatories
i) FRCP: 33-Any party
(1) 33(a)(1)
(a) A party will have no more than 25 interrogatories. Unless granted by the court under 26(b)(2).
(2) 33(a)(2)
(a) May inquire into an matter that is going to be investigated un 26(b)
(b) 26(b)
(i) Any matter that is nonprivileged that is relevant to the party’s claim or defense.
(3) 33(b)(2)
(a) Must answer or objections within 30 days unless granted leave by the court under rule 29
(i) Can be objections based on 31(a)(1)or(2)
(4) Who must answer them?
(a) 33(b)(1)(A)
(i) The party they are addressed to
(b) 33(b)(1)(B)
(i) If it is a private or public corporation, partnership, an association, or governmental agency, then by an officer or an agent who can furnish the information available to the party.
(5) Dean v New Werner Holding Co., Inc
(a) The Old Werner company went into bankruptcy and this new company bought them, someone brought suit against the company about an old ladder. The part says that under 26(a)(1)(A) were inadequate. If they did not respond they would not be able to use those witnesses under 37(c)(1). Then provided the same response that they did not have information to the interrogatories. Then there was a request to show documents and that goes under rule 34. The court in the end says that they must disclose things that are available to them through reasonable investigation
(b) . Dean v. New Warner – sanctions for failing to answer interrogatories in good faith; information available includes that taken over in business deals, information learned by attorneys in investigations
