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Civil Procedure I
University of Oregon School of Law
Girvan, Erik J.

Girvan – Civil Procedure – Fall 2014

Rule 4 Notes:

· Mullane: Service of process must be

p reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action AND

p afford them an opportunity to present their objections. Notice must convey required information and must afford a reasonable time for interested parties to make an appearance.

o Court should analyze interest of the parties to determine how much due diligence should be expended in deciding how much effort/cost should be expended to serve the parties.

p Terms =

o “Dwelling house or usual place of abode”

§ Individual can have multiple “dwelling house or usual places of abode” provided each contains sufficient indication of permanence

o “Resides there”

§ has long been held to require the recipient of the papers to be actually living in the same place as defendant. Thus, service on an employee of defendant who spends only a part of his time at defendant’s house ≠ service. But result varies.

Rule 4(e) How to formally serve individual

p 1. As provided by state law

Rule 4(m) Time Limit for Service

p

p Defendant must be served within 120 days after the complaint is filed. If not, then court must dismiss or order that π serve ∆ by X date. If π shows good reason for failure, court will order ∆ to be served by a reasonable date.

Rule 8:

p Rule 8(a)(1) “Short Plain Statement”

Possibility < Plausibile < Probibility. As determined by “judicial experience and common sense” + also must determine that other outcomes are less probable – rule out alternative theories to boost up your argument as “plausible”. Something beyond facts merely consistent with the allegations.

Two Step Analysis:

1. Strike out all allegations that are legal conclusions

2. Analyze remaining factual allegations to see if those facts, if true, are “plausible”. If plausible, then motion will survive motion to dismiss.

p Rule 8(b) Defenses, Admissions, Denials

o There are only 3 possibilities to include in an answer to a pleading:

o Admissions

o Denials

o State a disclaimer (if it can be made in the objective and subjective good faith demanded by Rule 11)??

p Rule 8(c) Affirmative Defenses

o REQUIRED: Rule 8(c)(1) – defendant must state all affirmative defenses, if not pleaded, then failure to state such an affirmative defense results in a waiver and exclusion of the defense from the case

o Other types of recognized affirmative defenses:

§ Mitigation of damages

§ Alteration of an instrument

§ Condition subsequent

§ Impossibility of performance

§ Infancy

§ Insanity

§ Mistake

§ Novation

§ Privilege in defamation actions

§ Rescission

§ Breach of warranty

o Tests to determine if a non-listed type of defense qualifies as an affirmative defense

p Allocation of burden of proof: The court considers whether the allocation of the burden of proof, reasoning that if the defendant bears the burden of proof on the defense, it is an affirmative defense.

p Controvert or avoidance. If avoidance, then affirmative defense: The court considers whether the defense simply converts the plaintiff’s proof, or instead “avoids” the plaintiff’s claim. To put it another way, the court will consider whether the defense shares the common characteristic of a bar to the right of recovery even if the general complaint were more or less admitted to, not simply controverted. Regardless of the veracity of the allegations of plaintiff, or lack thereof, an affirmative defense under this test will still win.

p Purpose of Rule 8(c) give π notice of defenses: consider the need for notice of the defense to avoid surprise and undue prejudice to the plaintiff

§

Rule 9(b): Fraud or Mistake; Conditions of Mind

Rule 9 Purpose

o Damage to reputation

o The information is in the plaintiff’s hands. The plaintiff is saying hey you defrauded me, or you screwed up you made a mistake. That information needs to go into the pleading so that defendant has an opportunity to respond.

o Special Damages: i.e. in the thin skull plaintiff when there is harm beyond the extent of natural harm of consequences of actions. i.e. damages you wouldn’t expect. IN this case, we expect that the plaintiff likely has information the defendant doesn’t have so thus plaintiff should put that information in the pleading so that the defendant has a chance to respond.

o Rule 9 applies to all fraud claims, statutory or common law

o Under Iqbal you have to plead enough facts to show that intent was plausible. Contrast with Rule 8 fraud which just must be plead generally. Now it looks like Rule 8 pushes the requirements for alleging intent to a higher pleading standard than Rule 9.

o In US v Community Health Systems, a complaint is sufficient under Rule 9(b) if it alleges the:

o Who: person

o Time

o Place

o Content of the alleged misrepresentation on which he or she relied

o Fradulent scheme

o Fraudulent intent of the defendants

§ Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally

o Injury resulting from the fraud

o Provides fair notice to Defendants and enable them to prepare an informed pleading responsive to the specific allegations

o RULE 9(b) requires that all “averments of fraud”, “the circumstances constituting fraud” must be plead with “particularity”, in contrast to the mens rea of fraud, which may be plead “generally”

o The circumstances constituting fraud must include an averment that a false or fraudulent claim for payment or approval has been submitted to the government

o Note 9(b) also applies to special damages

o Note 9(b) also applies to intentional misrepresentation ( a little different)

o Note that 9(b) does not require that all elements of a fraud or mistake claim be pleaded with particularity. Other matters, including malice, intent, and knowledge, may be pleaded generally

o Note additional requirement under §10(b) of the Securities Exchange Act

Rule 9(g)

p Rule 9(g) requires that special damages must be “specifically related” i.e. th e plaintiff must allege actual damages with “particularity” and specify “facts showing that such special damages were the natural and direct result” of the defendant’s conduct. Here, the plaintiff doesn’t get the benefit of the doubt. It’s on the plaintiff to prove that such and such special damages were due to the defendant.

o Thus, you need specific examples that the book would have been purchased, but for the tortious acts of the defendant’s acts i.e. the defendant con

osing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

p (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

p 1. Whether the complaint is legally or factually “baseless” from an objective perspective

p 2. Did the attorney conduct a reasonable and competent inquiry before signing and filing it?

o How do we know what is reasonable?

§ Easily accessible documents. This is an objective reasonableness standard. Objectively, what would have an objectively reasonable person have done?

§ Inherent authority – court can sanction someone anyway if you do something in bad faith you can be sanctioned outside of rule 11

Rule 12: Defenses and Objections

Rule 12(a) Time to Answer

p (1)(A)(i) A defendant must serve an answer within 21 days of being served the summons and complaint

p (1)(A)(ii) unless timely service waived under Rule 4(d), within 60 days after request sent, or within 90 days if defendant internationally abroad

Rule 12(b) How to Present Defenses

p Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

1. Lack of subject-matter jurisdiction

2. Lack of personal jurisdiction

3. Improper venue

4. Insufficient process

5. Insufficient service of process

6. Failure to state a claim upon which relief can be granted and

7. Failure to join a party under Rule 19

Rule 12(e) Motion for a More Definite Statement

è Largely redundant now that we have elevated pleading standards post Twombley and Iqbal.

è Motion for a more definite statement not as necessary when pleadings fail to meet the pleading standard, you can just bring a 12(b)(6) motion

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

Rule 12(f) Motion to Strike

è Similar to 12(e) This issue just doesn’t come up as frequently post Twombley and Iqbal

Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter