Civil Procedure II
IIX. Pleading – Provides the first opportunity to learn about the opponent’s claims.
§ Process:
1) complaint;
2) notice through service of process;
3) answer;&
4) in some jurisdictions, reply
§ Functions:
1) putting parties on notice – most important;
2) facts to prove;
3) narrowing issues for trial;&
4) resolution of meritless claims & defenses.
§ Burden of factual development lies on the discovery process.
A. Theories of pleading
1. Common law pleading: Plaintiff stated cause of action by invoking a specific writ for the claim. Pleadings provided notice, plus developed facts & issues. Suit dismissed if the issue did not fit the writ.
2. Code pleading: Focus on giving notice & simplifying the process. Requires complaint, answer, & possible reply. Requires a concise detailed statement of facts constituting the cause of action.
3. Federal Rules pleading: Designed to give notice with a short & plain statement of the claim, showing entitlement to relief. Governs in fed. Court & adopted by most states. Allows cases to proceed more easily to expensive discovery phase.
B. Complaint (Petition in OK)
1. Elements under the Federal Rules
Short & plain statement of the grounds upon which the court’s jurisdiction depends
Requires amount in controversy if diversity of citizenship claim
OK requires specified damages if <$10,000&claim “in excess of $10,000” otherwise
Short & plain statement of the claim showing that the pleader is entitled to relief
Demand for judgment for the relief the pleader seeks
Plaintiff not limited in recovery to the demand, except for a default judgment
Dollar figure not required, & may ask for “amount to be shown at trial.”
2. Form of pleadings (FRCP 10, 12 OS §2010)
a. Caption:
1) name of the court;
2) title of the case by parties names;
3) identity of the document (complaint, etc.);&
4) file/docket number.
§ File number: CV designates civil case, year case filed, sequential case number, initials of the assigned judge (ex. CV-01-0506-S)
5) Number each paragraph
b. Body: Claims or defenses set forth in numbered paragraphs. Separate counts usually set forth different related claims, but only required to have separate counts when the claims are founded on separate transactions.
§ A copy of a written document may be attached, which becomes a part of the pleading.
3. Testing for Legal sufficiency
§ 12(b)(6) Motion to dismiss for failure to state a claim or, under code pleading, a general demurrer
o Looks at the face of the complaint, not evidence, & assumes all allegations to be true
§ Leave to amend: plaintiff may amend the complaint to provide a legally sufficient complaint
§ Substantive challenge may be raised as an initial response also
§ Motion for summary judgment: evidence assessed to determine if factual dispute exists
o If the court looks at evidence for a motion to dismiss, it converts it to a motion for summary judgment
4. Testing for Factual Sufficiency
§ 12(b)(6) Motion to dismiss for failure to state a claim or, under code pleading, a special demurrer
§ 12c motion for judgment on the pleadings if raised after the close of pleadings
§ Code pleading statement of facts
o Too specific – pleading the evidence
o Too general – pleading conclusions of law
o Motion for more definite statement – expansion of the plaintiff’s pleading
o Motion to strike – remove redundant material from the pleading
5. General Rules for Pleading – Rule 8.
v Federal Rules pleading statement of facts: liberal requirement of a short&plain statement of the claim showing entitlement to relief.
o Common Counts: shorthand for certain claims allowed under Fed. Rules&code states
o Heightened specificity required in Rule 9: fraud, mistake, or condition of the mind; conditions precedent; official document or act; judgment; time & place; special damages (do not come naturally from the wrong); admiralty & maritime claims
Ø Congress may impose heightened requirements for the assertion of fed. claims.
v Rule 11 – As lawyers rule not to file frivolous pleadings.
Example: Dioguardi v. Durning – Man had claim for imported tonics.
§ A case can only be dismissed for failure to state a claim “upon which relief can be granted” if the plaintiff can prove no facts to support his claim.
§ Pleadings intend to give the defendant fair notice of the claim & its basis, so a pleading is sufficient if it puts the defendant on notice.
Example: Leatherman v. Tarrant County – Police forcibly entered homes & caused damage.
§ A heightened pleading standard cannot be required under the federal rules.
§ FRCP 9(b) only requires specificity in complaints for fraud or mistake.
Example: McCormick v. Kopmann – Woman made contradictory claims in complaint.
§ If a plaintiff is truly unsure about which of several sets of facts is true, the plaintiff may plead inconsistent & contradictory claims in the alternative, whether in the same or different counts. – FRCP 8(e)(2), 12 O.S. 2008(e)(2).
§ 8(e)(2) – allows inconsistent allegations.
§ 12 O.S. 2008 (e)(2) – allows inconsistent allegations, where legitimately in doubt of basis of recovery.
§ A jury will weigh evidence in light of the contradictions presented to it.
§ If you are satisfied by the time you go to trial that one inconsistent allegation does not exist then you ought to drop. Jury will be apt not to believe what you say.
§ If you file separate actions under the rules of evidence then other party can use as evidence as admission against interest.
§ Form 10 example of number of good inconsistent allegations.
Example: Swierkiewicz v. Sorema N.A.
§ Rule 8(a)(2) – “short & plain statement of claim.” Simplified pleadings apply to all civil actions with limited exceptions. You don’t have enhanced pleading standards unless 9(b) requires.
§ Unless, you find in 9(b) or 28 U.S.C. § 1778 – only time for enhanced pleading standard.
5. Defendant’s motions in response (FRCP 12).
a. Motion to dismiss for failure to state a claim (12(b)(6)). This motion tests the legal sufficiency of the PS claim, questioning whether the law affords a remedy on the facts alleged. It also tests the factual sufficiency of the claim.
b. Motion for summary judgment (FRCP 56) – no disputed facts or defendant entitled to judgment as a matter of law; may claim statute of limitations
c. Motion for a more definite statement (12(e)) – unclear pleading to which responsive pleading is allowed
d. Motion to strike (12(f)) – before response or w/in 20 days if no response allowed, strike from pleading an insufficient defense or extraneous ma
wer or a motion for summary judgment
2) Notice of stipulation of dismissal signed by all parties
3) Without prejudice, unless state otherwise
4) Notice of dismissal is adjudication on the merits if plaintiff previously dismissed the action
5) In Oklahoma you can dismiss up to the time of trial without court permission, but in Federal court you have to get permission.
6) 683, 684 – Right to Dismissal, you have an unlimited right to dismiss.
7) Rule 23 – under a class action you must always get permission of the court.
8) In federal court once an answer is filed you have to get permission to unilaterally dismiss.
9) If the parties stipulate then the parties can basically do almost at anytime if everyone agrees, if all parties agree you don’t have to get court permission.
10) Federal court 41(a) – If you dismiss a claim twice then it will be dismissed with prejudice.
11) Statute is going to run during the period of time 12 O.S. 100 – saving provision.
b. By court order
1) Required for voluntary dismissal if cannot be dismissed by the plaintiff
2) Defendant must approve of dismissal if counterclaim filed unless counterclaim can be adjudicated independently
3) Without prejudice, unless stated otherwise
2. Involuntary (FRCP 41(b), 12 OS 682, 683, 3237)
§ Either by motion of defendant or district court’s own motion, sua sponte.
§ Result of plaintiff’s failure to prosecute or comply w/ the court’s rules or orders.
§ Preferred to warn plaintiff & provide an opportunity to be heard.
§ Adjudication on the merits, unless dismissal for lack of jurisdiction, improper venue, or failure to join a party, without prejudice because did not have jurisdiction or venue.
§ District courts may adopt local rules providing for involuntary dismissal for failure to prosecute, usually occurs when you don’t get summons served, usually without prejudice. (FRCP 83).
§ Oklahoma Rule 5 – failure to prepare may result in the following sanctions, can dismiss with prejudice.
§ Rule 9 – diligence in prosecution.
§ Relief from Judgment or Order – 60(b)(1)&60(b)(6) – court is less likely to grant these motions.
§ Federal Rule 16 – judge upon motion can make orders to dismiss with prejudice.
I. Default & Default Judgment (FRCP 55) – Failure to respond to a complaint in an appropriate & timely manner.
1. Default
§ Notation on court’s docket by clerk
§ May have appeared but in default if fail to file an answer
2. Default Judgment
a. Claim for a specific sum
§ Upon plaintiff’s request, judgment entered by clerk for that sum & costs
§ Can only recover amount claimed in complaint
§ Cannot be made against an infant or incompetent
b. Apply to court for nonspecific sum
