Civil Procedure
LIFE OF A LAWSUIT
Ø COMPLAINT
Ø PLEADING
Ø VOLUNTARY DISMISSAL
Ø INVOLUNTARY DISMISSAL
Ø ANSWER
Ø FAILURE TO RESPOND
Ø AMENDMENTS
Ø RULE 11
Ø DISCOVERY
SUBJECT MATTER JURISDICTION
Ø DIVERSITY JURISDICTION (1332)
Ø FEDERAL QUESTION JURISDICTION (1331)
Ø REMOVAL (1441)
Ø SUPPLEMENTAL JURISDICTION (1367)
PERSONAL JURISDICTION
Ø MINIMUM CONTACTS
Ø SERVICE OF PROCESS
Analysis:
Where there is any doubt, argue both sides (P will argue… D will respond…)
When reaching a conclusion, explain each step, including the steps not taken
Extras:
Semantics (interpreting relevant language)
Intent (parties, statutes, common law)
Analogy (to other cases)
Distinguishability (from other cases)
Hypotheticals (to illustrate a point)
LIFE OF A LAWSUIT
THE COMPLAINT
Ø Elements (8a):
o 1: Appeal to jurisdiction: “A short and plain statement of the grounds upon which the court’s jurisdiction depends”
o 2: Statement of claim (“Wherefore”): The justification for the complaint. “A short and plain statement of the claim showing that the pleader is entitled to relief.”
o 3: Demand for relief: The amount being requested. “A demand for judgment for the relief the pleader seeks.” Demand does not limit recovery.
Ø Special pleadings (9):
o 9b: Fraud: Private Securities Litigation Reform Act: under this statute, P must specify the misleading statements on which their claims are based and must identify “with particularity facts giving rise to a strong inference that D acted with the required state of mind.”
o 9g: Special damages: unusual and exotic damages; must therefore be included in the complaint. If not, D attorney has a powerful arg for exclusion.
o 9f: Time and place: “For the purpose of testing the suff of a pleading, the averments of time and place are material and shall be considered like all other averments of material matter.”
PLEADING
Ø Legal sufficiency: tested with 12b6 (aka general demurrer); usually issued “with leave to amend” or “without prejudice” which means P has another opportunity to draft a legally sufficient complaint.
Ø Factual sufficiency: Has P pleaded his claim in sufficient detail to proceed in litigation?
o Code pleading: Requires P to make “a statement of the facts constituting a cause of action, in ordinary and concise language, without repetition.” Requires P to plead with greater specificity than the Federal Rules; code state Ds can challenge P’s pleading with a special demurrer (12b6). Unfortunately, courts have seized on the word “facts” to recreate technical difficulties. They want the “ultimate facts.”
§ Too specific = “pleading the ev”
§ Too general = “pleading conclusions of law”
o Notice pleading: threshold is low, which makes discovery very expensive. Our federal judicial system has decided it’s more important for P’s who don’t have access to information have the opportunity to get that opportunity than to make it difficult for frivolous claims. Liberal pleading rules make it easier for litigants to get to the discovery phase and thereby secure necessary evidence. Discovery, however, is very expensive and therefore a liberal pleading phase may increase the settlement leverage of P. “It also forces judges to rely on summary judgments and control of discovery to weed out unmeritorious cases.”
Ø Heightened specificity debate
o There is a difference between what P must prov
s been abandoned
o Some states have timetables for determining dismissal (Cal.)
Ø P’s failure to follow rules (41b):
o Usually enforced with an underlying contract or, if available, a consent decree that allows immediate reentry into the court system.
o If you are drafting a stipulation of dismissal, you want it to say that it settles all disputes between the parties up to that date.
o Dismissal is with prejudice (“on the merits”) unless dismissed for lack of jurisdiction, improper venue, or failure to join a party under rule 19.
§ However, this doesn’t necessarily mean the client doesn’t have recourse: fire atty, sue for legal malpractice, use rule 60b (get judge set aside after they are entered).
o Appeals are difficult because the standard for review is “abuse of discretion,” which is very forgiving of the judge.
§ One ground P has good basis on appeal: when district judge dismisses on 41b w/out giving P atty fair notice judge is thinking of doing it and chance to argue shouldn’t do 41b.
Motion to dismiss (12b6): “Even if P proved all allegations in her complaint, D would not be entitled to relief.” Only 12b motion which challenges the substantive merits of the claim. 1) Legal sufficiency, questioning whether the law accords a remedy on the facts alleged; 2) Factual sufficiency, questioning whether P has put forth her claim in appropriate detail.