Civil Procedure I Outline

CIVIL PROCEDURE

BURBANK

FALL 2011

INTRODUCTION

I. Introduction

A. Interpreting the Rules Enabling Act; Sibbach v Wilson

– FACTS: Π claimed to have received bodily injuries in IN à P sued D in N.D. of IL for negligence à D moved under FRCP 35 for a medical examination à P refused à D moved for an order under FRCP 37 to show cause for why P should not be held in contempt

– Issue: Π had to decide whether to call R. 35 “substantive” or “procedural” à if Π labeled them substantive, then the court would have to use the substantive law of IN, which required a physical examination but if she called them procedural, the court would use the uniform rules of procedure, specifically R. 35

– P argued that R 35 is procedural but it impinges on a substantive right (to be free of bodily invasion) which is prohibited under § 2 of the Rules Enabling Act, which prohibits that abridgement, expansion, or removal of any “substantive” rights through rules of procedure à to reach this result, she translates “substantive” into “important” or “substantial” rights à she essentially creates a 3rd class of law: A procedural right that violates a substantive law

– Holding: Because Π admits that R. 35 a procedural rule, it is therefore a matter of procedure and not substantive law à Court supports this conclusion with the following arguments:

a. Congress meant to work a change in policy so as to emphasize uniformity in federal court procedure; if the court found a substantive violation here, it would open up the floodgates to further litigation

b. Congress had approved rules (passively); b/c they did not raise any concerns about R 35, there should not be any problems à recurrent theme: (passive approval by Congress used to support interpretation of FRCP under the REA)

c. Use of arrest as a sanction was outside the court’s power under R. 37 – and the DC acted improperly by ordering Π’s arrest à by ruling out arrest as a sanction, there is no invasion of substantive rights (BUT Π wasn’t concerned with being arrested, but the forced medical exam)

d. IN SUM, the court interpreted the Rules Enabling Act as giving S. Court the power to make rules throughout the realm of procedure – Rules 35 and 37 are procedural so they are valid

– NOTE: This decision, and later opinions (i.e. Hanna) took the “teeth” out of the Rules Enabling Act by rendering the protection of substantive rights relatively toothless

PHASES OF A LAWSUIT

I. Pretrial

A. Pleading Under the Federal Rules of Civil Procedure

– Guiding principle of pleading under the federal rules is that the pleadings should give notice to all parties of the nature of the lawsuit, sufficient to allow other parties to make pre-trial and trial arrangements

– Intricacies of pleading are integrally related with purpose of pleading – to create an efficient and just legal system

– Burdens of a Lawsuit:

a. Burden of Pleading

b. Burden of Proof – involves both (1) Production AND (2) Persuasion

– Policy Justifications for Shift to Notice Pleading

a. Reasoning: (1) Courts wasted time determining whether a pleading was facts, conclusions or evidence; (2) Cases that weren’t frivolous should be decided on merits, not on pleading; (3) With increased anonymity, it would be unjust to require someone to plead all facts constituting the cause of action

b. Provided: (1) Better access to court, more fair narrowing of the issues; (2) Facts to be discovered with a broad array of discovery devices

B. Stating a Claim [Rules 8(a),(c),(e),(f) + 9(b) + 11]

1. Burden of Pleading – Claims are Divided up into “If” clauses and “Unless” clauses

a. Π is responsible for “if” clauses (ex: if…. Facts of case happened, then… Π is entitled to relief)

b. Δ is responsible for “unless” clauses (ex: Π is entitled to relief “unless”…. = affirmative defenses)

c. Reasoning behind separation of burden of pleading: (1) Affirmative defenses often recognize a departure from the norm; (2) Reflect ease of access of information; (3) General social policy

2. Specificity of the Claim [Rule 8(a)]:

a. Three requirements for a claim

i. Rule 8(a)(1): Grounds on which the court’s jurisdiction depends

ii. Rule 8(a)(2): Short, plain statement of a claim that shows the pleader is entitled to relief

iii. Rule 8(a)(3): Demand for judgment or relief sought

b. Sufficiency of Claims – Sierocinski v. E.I. DuPont De Nemours

– FACTS: P was injured while crimping blasting cap manufactured by D à In claim, P alleged that D’s negligence caused P’s injuries à D made argued that it was not put on sufficient notice as to what specific claims of negligence would be made by P (motion under Rule 12(e))?

– Holding: Court holds that P notified D of the general theory for recovery (negligence), and that is sufficient

– IN SUM, the court rules that under FRCP, the claim does not need to be specific; rather, the D can get the information that it seeks through interrogatories [Rule 33]

c. Sufficiency of Claims – Conley v Gibson

– Facts: Afr. Am. members of union sue D to enjoin D from racial discrimination in its representation practices

– Court reaffirms Sierocinski, à Π not required to provide details in claim and case should not be dismissed unless it is beyond a doubt that Π can’t recover based on facts set forth even when considered in a light most favorable to Π (i.e. if case can’t be dismissed pursuant to Rule 12(b)(6) motion, claim is likely sufficient) (“no set of facts” language).

– Positive: Allows Ps to maintain a claim where they may not have access to sufficient information

– Negative: Problem with allowing generalized claims is that they may allow for sloppy lawyering and frivolous lawsuits with no factual basis à How to solve that problem? See Rule 11

d. Sufficiency of Claims – Bell Atlantic Corp v Twombly

– Facts: P alleged Bell Atlantic “engaged in parallel conduct” in their respective service areas to inhibit the growth of competition & that they refrained from competing with each other

– Holding: Case dismissed on 12(b)(6) motion à likely based in “practical politics”: pleadings alleged few facts on which to base a claim and discovery costs to prove Π’s case would likely be unduly large

– Take Away: Higher standard for pleadings to overcome Rule 12(b)(6) à pleading more vulnerable to dismissal à effectively overruled Conley v Gibson “possible standard” without expressly changing the standard in Rule 8(a) à new standard = “plausibility” of making a claim

– Note: Twombly seems to leave 12(b)(6) dismissal to discretion of courts à S.Ct. clearly changes standard, despite previous ruling that heightened pleading requirements for certain types of cases is improper

e. Sufficiency of Claims – Ashcroft v Iqbal

– Holding: Court affirmed Twombly, and applied the “plausibility test” to ALL federal complaints à this new approach is likely to seriously impact Π’s who need discovery to learn the required factual particulars of their claim, especially where the Δ is a corporation with larger resources than a private party

– Take Away: Higher standard for pleadings to overcome Rule 12(b)(6) or other dismissal à Essentially makes Rule 12(e) pointless because there are no longer guidelines for just a “clear” / “definite” statement

3. Affirmative Defenses [Rule 8(c)]: provides Δ with a suggested list of affirmative defenses

– Generally, Π avoids saying too much in the claim so as not to give Δ any grounds for defense

– Why is the burden of affirmative defenses placed on Δ?

a. Δ has better access to evidence for affirmative defenses

b. It would be potentially unfair to Π (ex: for bankruptcy case, Π should not have to prove that Δ is NOT bankrupt when filing a claim).

4. Statement of Claim in the Alternative [Rule 8(e)]: P can make multiple statements, claims or averments à each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required

5. Rule 8(f): all pleadings shall be so construed as to do substantial justice

6. Exception to Generally Stated Claims [Rule 9(b)]: Averments of “fraud or mistake” shall be stated with particularity. “Malice, intent, knowledge, or other condition of mind,” however, may be inferred generally

7. Sanctions [Rule 11] – Murphy v Cuomo

a. Facts: D manufactured stun guns à court granted summary judgment on Π’s claim of conspiracy with NYPD to spray innocent people à Δ moved for Rule 11 sanctions

b. Holding: Sanctions imposed à an attorney must make a reasonable inquiry prior to signing a pleading to ensure that it be well-grounded in both law and fact à Lawyers must make reasonable inquiry into if there are good grounds to support a claim BUT this does (should) not change rules of pleading, formally

C. Defense and Objections [Rules 8(b),(c) + 12]

1. Answers must be served within 20 days after being served with summons and complaint

2. Types of Defenses and Objections

a. Rule 8(b): Denial

b. Rule 8(c): Affirmative defense

c. Rule 12(b)(x): Enumerated defenses

i. Rule 12(b)(1): Lack of subject matter jurisdiction

ii. Rule 12(b)(2): Lack of personal jurisdiction

iii. Rule 12(b)(3): Improper venue

iv. Rule 12(b)(4): Insufficiency of process

v. Rule 12(b)(5): Insufficiency of service of process

vi. Rule 12(b)(6): Failure to state a clai