CIVIL PROCEDURE
Professor Struve
Fall 2010
Getting Started:
§ Rules Enabling Act of 1934: authorizes uniform system of procedural rules for civil cases in fed courts §2072. Rules of procedure and evidence; power to prescribe:
o (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.
o (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
§ Note: procedures can still make a difference in outcome: tactics, statute of limitations, juries, standard for summary judgment
§ Substantive Right: the legal rules that govern relationships with those outside of the courtroom
o (c) Advisory Committee presented drafts to the SC, SC approved them and they took effect unless Congress took new action. Change in the 1980s to a 4-step process where: 1) professors suggest change, 2) then goes before standing committee, who if thinks is good send it out for notice and comment, then goes back to standing committee 3) then goes to judicial conference which if approved 4) goes to SC which if approved goes to Congress (and if Congress doesn’t act it becomes effective)
o (d) Rule is valid unless Congress acts and says that it’s not (EX. Rule 35)
o (e) Prior to 1938 followed Conformity Act of 1872 (where conformed to state procedure). This changed w/ the REA (if in federal court, and valid rule, that governs).
o (f) Supreme Court has never found a Civil Rule invalid
§ Historical Rule 35: Physical and Mental Examinations of Persons:
o When physical or mental status is an issue, a party may request an exam. Usually only made against parties. Courts require “good cause.” In most jurisdictions, the party doing the discovery chooses the examiner, although in a few, the court does. Some wonder if this rule challenges the REA.
· will perform it. Must be conducted by license or certified examiner. You must give notice.
Sibbach v. Wilson & Co:
§ Facts: Plaintiff sued in IL federal district court for injuries incurred in IN. D wanted her to undergo a physical examination, as permitted under Rule 35. IL law did not allow for compulsory physical exams. Plaintiff claimed this was a substantive right.
§ Holding: The right to undergo or refuse a physical examination is not “substantive” – “substantive” does not mean “important.” The test for whether a rule is “procedural” is whether it regulates the judicial process for enforcing rights created by substantive law. It’s a procedural rule and all procedural rules are valid under REA therefore Rule 35 is valid.
§ Notes:
· Frankfurter believed that this was an invasion of privacy (inviolability of a person). Believed this REA therefore invalid because dealt with a substantive and not procedural right.
· More efficient to let Congress do something if they don’t like a Rule.
· Question of if it’s better to have a rule or a flexible standard. Rules can be easier to apply, yet they can be overinclusive or underinclusive. Flexible standards can be more difficult to apply consistently. Sibbach shows that it may be easier to have a standard rule.
o Majority: Rule-Like and said that Rule 35 was procedural; Dissent: More Flexible
· Erie was 4th months later, Sibbach in this case would’ve been subject to IN state law where injury occurred.
§ Case Take-Away: How do you know if a Federal Rule is valid? If it’s procedural!!!!
§ Current Rule 37(b)(2)(A): Deals with the actions which the court can take compel discovery by an individual in a pleading. HOWEVER, Rule 37(b)(2)(A)(vii): you cannot use the punishment treating as contempt of court the failure to obey an order, when the order is to submit to a physical or mental examination.
Stating the Claim:
§ What does rule 8 require in the way of pleading?
o Complaint must be possible—it must encompass a legal claim
o The FRCP does not require the claimant to set out in detail the facts upon which the claim is based—short and plain statement of the claim
§ Rule 8(d)(2)—Statement of clam in the alternative—a party may state two or more claims or defenses
o 8(d)(3)—a party may state as many separate claims or defenses “regardless of consistency”
Stating the Claim Case Law:
Sierocinski v. E.I. Du Pont De Nomours & Nemours & Co.: 1939
o Facts: Sierocinski (P) injured crimping w/ a faulty cap which produced by E.I Du Pont (D). P claims D was negligent. D claims that P failed to state a claim (since it wasn’t specific).
o Holding: Rule 8(a)(2): The plaintiff only needs to make a short and plain statement of the claim showing that the pleader is entitled to relief. (It doesn’t limit the plaintiff to any given theory of what the D did wrong since you will specify at trial. Don’t need to plead evidence of negligence).
o Notes:
§ Anything that the D needs to find out, he can, using Rule 33 (interrogatories).
§ NOTICE PLEADING (rule that prevailed from 1938-2007). If you want more detail take discovery (Rules 26-37)
§ Form 11 suffices as notification of negligence
§ The case was remanded to the TCT, where verdict was given for the P. The D appealed and it was found on appeal that there was insufficient evidence to find for the P.
· APPEAL 1: Sufficient evidence to state a claim
· APPEAL 2: Insufficient evidence to prove negligence
Conley v. Gibson (SCOUS, 1957):
o Facts: D sought to dismiss on 12(b)(6) for a claim by a group of Black railroad employees alleging that their union had violated the Federal Railway Labor Act by failing to represent them fairly in collective bargaining with the employer.
o Holding: A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
o Notes:
§ Set the standard from 1957 to 2007 of notice pleading: only need to show that there is a set of facts consistent w/ the allegations which would allow the plaintiff to win. Wasn’t the judge’s duty to decide validity of claim, because had discovery.
· Civil Rights Context, wanted to make sure that claims would be heard even if didn’t have the evidence to prove it at the time.
· Problematic because a P could throw out blanket claim in hope that would find evidence to support it in discovery.
Bell Atlantic Corp v. Twombly (SCOUS, 2007):
o Facts: P claimed that there was parallel marketing conduct. Antitrust suit which puts forward a conspiracy claim (companies not infringing on others’ region but stopping small start-ups from entering market). Discovery would have been very expensive.
o Holding: At time of Twombly a claim was valid if it was short and stated a legal question. CT says that you can’t just make an accusatory statement/ conclusion, you needed to be able to show proof of parallel conduct. Need to show plausibility of a claim.
o Notes:
§ Departure from Conley of notice-pleading and replaced w/ plausibility test (unclear scope of this new rule until Erikson)
Erikson v. Paradus (SCOUS, 2007):
o Facts: P claims that prison officials (D) wrongfully ended his treatment for HepC in prison. Alleged that action was endangering his life. Question was if he filed a valid complaint.
o Holding: Notice-Pleadings do not require allegations of “specific facts” and a judge “must accept as true all of the factual allegations alleged in the complaint.” This limited Twombly to antirust cases.
o Notes: CT didn’t mention the word plausible
Aschroft v. Iqbal (SCOUS, 2009):
o F
s:
Rule 13 (Counterclaim and Crossclaim): CTS encourage the joinder of claims because it’s more efficient to try all the claims in one action.
§ Always important to keep in mind the statute of limitations (first thing you should look at when examining a suit)
· Goal of SoL is to preserve evidence (people die, it can be destroyed, etc). Interest in allowing a defendant peace of mind after certain time has passed
§ Sometimes plaintiff will run out the clock so that the D can’t assert a counterclaim (in which case the courts sometimes allow them to go beyond the SoL, discovery rules mitigate time bar)
13(a) Compulsory Counterclaims:
§ (1) Must assert at time of service against opposing party if:
· (A) Arising out of the same transaction or occurrence as the other party’s claim
· (B) Does not require adding another party over whom the court can’t acquire jurisdiction.
§ (2) Doesn’t need to state claim if:
· (A) When action commenced, claim subject to another pending action or
· (B) Opposing party sued on its claim by attachment or other process which didn’t create personal jurisdiction over the pleader on that claim and that pleader does not assert any counter claim under this rule.
§ ***Test is if the evidence that you use for both claims is the same, than it’s compulsory (normally). Most people in practice just assert all counterclaims to prevent possibility that later it will be deemed compulsory and that you will have failed to raise that claim.***
13 (b) Permissive Counterclaim: Any counterclaim against opposing party that isn’t compulsory.
ONCE A COUNTERCLAIM HAS BEEN FILED IT FOLLOWS PROCEDURE OF RULE 7 (PLEADING ALLOWS; FORM OF MOTIONS AND OTHER PAPERS) by the Defendant and the Plaintiff RESPONDS USING RULE 8 (GENERAL RULES OF PLEADING)
Rule 20: Permissive Joinder of Parties
§ (a) Persons Who May Join or Be Joined.
· (1) Plaintiffs. Can join in one action as plaintiffs if:
o (A)They assert any right to relief jointly, severally or in the alternative w/ respect to or arising out of same transaction, occurrence or series of transactions/ occurrences; and
o (B) Any question of law or fact common to all of them will arise in the action.
· (2) Defendants: May be joined in one action as defendants if:
o (A): Any right to relief is asserted against them jointly, severally or in the alternative w/ respect to or arising out of the same transaction, occurrence or series of transactions/ occurrences; and
o (B): Any question of law or fact common to all Ds will arise in the action.
· (3) Extent to Relief. Neither the P or the D need to be interested in obtaining/ defending against the relief demanded. The CT can grant judgment to one or more Ps according to their rights, and against one or more Ds according to their liabilities.
§ (b) Protective Measures. CT may issue orders (including order for separate trials) to protect a party against embarrassment, delay, expense or other prejudice that arises from including a person against whom party asserts not claim and who asserts no claim against the party.
