Civil Procedure I Outline

Chapter 2. Identifying the Issue     9/30/09 5:29 PM
I. Pleading the Elements
 
Function of Pleadings
 
·         Permit the elimination from consideration of contentions that have no legal significance.
o   Also is a clean, effective method of focusing attention on difficult questions of law, helping them to develop with society.
 
·         To guide the parties and the court in conduct of cases.
o   Notice to opposing parties of opponent’s contentions.
o   Notice to the court.
o   Settle what facts are agreed upon to determine the matter of controversy.
 
 
II. Elements of the Claim
Rules
·         8(a)(1) – jurisdiction
 
·         8(a)(2) – a short plain statement. (Rule 12(b)(6) is the answer to this rule stating with the D stating that the P has not stated anything on which the P can claim relief)
 
·         8(a)(3) – a demand for the relief sought
 
 
III. Pleading & Substantive Law/Pleading Theory & Policy
Rule 8(a) & 9(b)
 
1. Sufficiency of the Complaint
Rule 8(a) – Court generally requires more details than what Rule 8(a) provides for.
·         There must be enough detail to justify the claim.
·         If the claim is too detailed it may restrict the flexibility of the P (Lewis v. S. SF Taxi). The P may not be able to prove every detail he pleads, as he pleads it.
·         Details help avoid lengthy appeals.
·         A lack of detail slows process (Rule 12(b)(6) motion)
 
Neb. Rev. Stat. §25-804(2) – Petition
·         Facts that allow for a cause of action based on required elements of the relevant substantive law.
·         Stated simply, directly, and without repetition.
 
2. Heightened Pleading Requirements Rule 9(b) and 9(f)
 
Rule 9(b)
·         “The circumstances constituting fraud or mistake shall be stated with particularity” (Hoover v. Langston)
o   A party must state particularly the circumstances constituting fraud or mistake.
·         Only fraud and mistake are covered by 9(b)
 
·         Other cases where heightened particularity is required under 9(b)
o   Fraud/mistake 9(b)
o   Slander
o   Civil Rights
o   Special State Rules
 
Rule 9(f) – Time & Place
·         An allegation of time and place is necessary when testing the sufficiency of a pleading.
·         Used as screening device.
 
3. Screening the Pleadings
 
Rule 11
·         This rule was created because many lawyers did not screen the cases and filed many cases that had no business being filed, therefore wasting the courts’ time.
·         (Clement v. Public Service Electric & Gas Co.)
·         Rule 11 was amended to include Rule 11(b)
o   Lawyer representation/signature – this ensures that the lawyers screen the cases presented to them. The rule is in place to keep frivolous suits out of court. If a lawyer is in violation of 11(b) they may be sanctioned.
 
 
V. Defendant’s Response
 
Neb.Rev.Stat. § 25-806 (demurrer)
·         “D may demurrer to the petition when on it’s face the petition does not state facts sufficient to constitute a cause of action.
 
Rule 12 – (Runs corollary to Rule 8(a)(2)) – When and how defense can be presented; Motions for judgments. Defendant has a right to read what the P writes and to criticize it.
·         Defense must serve answer w/in 21 days of being served with complaint.
·         Rule 12(b)(6) – failure to state a claim upon which relief can be granted.
o   A case should not be dismissed unless it appears beyond a doubt that the P cannot prove a set of facts in support of the claim that would grant relief.
·         Limited to the pleading/face of the complaint
o   The pleading consists of any documents attached to it or any document incorporated into it by reference.
o   If the claim is based on outside information (notice may be given) and there is no claim, it will be treated as a motion for summary under Rule 56.
·         When raised by motion, the a