Civil Procedure II Final Outline
Professor Heiser
Spring 2014
I. PLEADINGS >> used to put the parties on notice of the other party’s contentions.
A. Rules on the Form of Pleadings comes from Rule 10 – (a) caption, names of parties; (b) paragraphs; separate statements; and (c) adoption by reference; exhibits.
1. Per Rule 11(a) – every pleading, motion, paper, must be signed by at least 1 attorney.
i. Rule 11 >> Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions à note, this rule will probably be revised this term.
a) 11(a): signature requirement by at least 1 attorney, in pleadings.
b) 11(b): signed pleading is a certification that to the best of attorney’s knowledge:
1) 11(b)(1): not for improper purposes (harassment, ↑ cost of litigation),
2) 11(b)(2): claims, defenses, etc. are warranted by law,
3) 11(b)(3): allegations (will) have evidentiary support,
4) 11(b)(4): denials of factual contentions are warranted on evidence, etc.
c) 11(c): sanctions may be imposed on attorneys, firms, parties who violate 11(b).
1) 11(c)(1)(A): 21 day safe harbor to w/draw the complaint.
2) Requires good faith and reasonable inquiry à relying on client is not enough.
B. Rule 7 >> Pleadings Allowed; Form of Motions
1. 7(a): definitions of pleadings allowed under Rule 7(a) —
i. Pleadings by Π
a) Complaint: Π’s statement; allegation of facts à used to give notice of the nature of the controversy between parties.
ii. Pleadings by Δ
a) Answer: Δ’s response to each allegation of Π’s statement.
1) [Π] court may order a Reply.
b) Counterclaim: Δ asserts a complaint against Π.
1) [Π] Reply to the counterclaim.
c) Cross-claim: Δ asserts a complaint against a co-Δ.
1) [Δ2] Answer to the cross-claim.
d) Third-party complaint: Δ files a complaint against one not already a party to the action under Rule 14.
1) [new Δ] Answer to the third-party complaint.
i) [Π] court may order a Reply.
iii. Note, in California, pleadings 2, 3, and 4 are all termed as “cross-complaint.”
C. Kinds of pleading:
1. Notice Pleading – used in Federal District Courts and most jdx, requires very little of pleader.
i. Rule 8(a) Complaint Components:
a) (1) short and plain statement of the grounds for the court’s jurisdiction;
b) (2) short and plain statement of claim showing pleader is entitled to relief; and
c) (3) demand for judgment for the relief the pleader seeks.
ii. A de-emphasis on pleading, just put the other party on notice b/c the facts come out later through discovery.
iii. (p.568) American Nurses’ Association v. Illinois, (7th App. 1987). Class action of “comparable worth” – sex discrimination in employment and pay. Pleading is looked at liberally, in the light most favorable to Π – here, sufficient even though lengthy w/ both valid and invalid COAs.
a) DC grant of failure to state a claim is wrong à only dismiss under Rule 12(b)(6) when BRD that Π can prove no set of facts in support of COA entitling relief.
1) The correct motion is one for a more definitive statement – Rule 12(e) motion, but Δs should use caution in this motion.
b) Note, the 20-page complaint in this case could have been pared down to 1 page.
c) Courts look at complaints very liberally, the usage of “including, but not limited to” makes the complaint sufficient.
2. Code Pleading: used in a minority of state courts, but powerful jurisdictions (CA, NY).
i. “Fact pleading”: requires a statement of facts of COA in ordinary and concise language showing a right to remedy.
ii. Complaint Components requires showing a prima facie case: 1) caption/form, 2) body w/ each COA in #ed ¶, 3) statement of jurisdiction, 4) entitlement of pleader to relief, 5) demand for judgment for relief, 6) prayer for relief, 7) designation of parties, 8) signing and verification.
iii. Lawyers put in more than is necessary at times in the statement of COA to sway/educate the judge from the beginning.
a) The outcome of the case does not usually depend on the adequacy of drafting; but still must be cautious in drafting adequate complaints.
b) (p.556) Access Now, Inc. v. Southwest Airlines Co, (DC FL 2002). Δ’s website note compatible w/ software allowing blind users to “see.” Π’s claim in complaint that Δ www. is a place of public accommodation is wrong.
1) Δ successfully moved to dismiss for failure to state a claim upon which relief can be grander under Title III of the ADA – Rule 12(b)(6) motion.
3. Δ may file a pre-answer motion before the answer (delaying deadlines on answer).
i. Rule 12(b): How Presented – optional motions to dismiss (may also be raised in answer):
a) (1) Subject Matter Jurisdiction
b) (2) Personal Jurisdiction – Rule 12(h)(1) waives these if not initially raised.
c) (3) Venue
d) (4) Insufficient Process
e) (5) Insufficient Service of Process
f) (6) Failure to State a Claim upon which relief can be granted.
i) This motion admits the truth to the complaint.
ii) Before this motion is granted, Π usually is given a chance to amend.
g) (7) Failure to Join an Indispensable Party (under Rule 19.)
ii. 12(e): motion for a more definite statement à only permitted where the pleading is so vague that it is unreasonable to expect someone to answer.
a) Not very common b/c usually helpful for Π.
iii. 12(g): Consolidation of Defenses in Motion.
a) Must make all defenses and objections in the motion.
iv. Common law allows Δ to enter a special appearance to deny personal jurisdiction.
4. Responding to the Complaint by Answer or Reply >> tells the court what facts are admitted and what facts need to be proven à Δ can…
i. 12(a) generally requires Δ to serve an answer w/in 20 days of being served.
a) If service of summons is waived under Rule 4(d), then w/in 60 or 90 days.
b) If Δ’s Rule 12(b) motion to dismiss is denied, then w/in 10 days after denial.
c) 12(a)(3) rules of motions for the U.S. gov’t or agencies.
ii. Admission: establishes Π’s averment as true for purposes of that case only.
a) After an admission, no evidence is necessary.
b) (p.633) Fuentes v. Tucker, (Cal. 1947). Δ driver hit and killed 2 kids. Π produced graphic evidence at trial, won large $$ damages. Δ appealed b/c he admitted fault so evidence should not be allowed to calculate damages. B/c Δ admitted during pleadings, no need to bring in more evidence = loss of use of evidence for a sympathetic jury verdict.
1) Sometimes making an admission is a strategic move to take away Π’s right to prove facts.
iii. Denial: puts the allegation at issue and creates an issue of facts à Δ may set out as many alternative claims/defenses regardless of consistency (modern rule.)
a) Burden of proof: Π must prove the allegation being denied; Δ is allowed to contribute contrary proof.
b) General denials are not allowed – must go line by line through Π’s allegations.
c) Denial must be in good faith.
1) (p.627) Zielinski v. Philadelphia Piers, Inc., (D.C. Penn. 1956). Π was struck by forklift owned/operated by Δ but did not find out it was Δ’s forklift until after s/o/l ran out. Δ is equitably estopped from denying agency even though s/o/l has run b/c of lack of good faith in the denial.
i) Focus of the case: get a truthful answer.
ii) Court relies on Rule 8(b) – denial in good faith should meet substance of the averment denied; not so here b/c Δ has no basis in denial.
iv. Demurrer: written response to a complaint which pleads for dismissal b/c even if the facts in the complaint were true, there would be no suit.
v. Failure to deny/answer is the same as an admission
vi. Affirmative Defenses – Rule 8(c):
Accord and satisfaction,
of new Δ for a Doe.
2) Ignorance must be genuine and not feigned.
3) Note, there is no duty of diligence on Δ to find out real names of Δs before filing initially, but once the names are found out, must be diligent in amending.
D. Allocation: generally, “he who pleads must prove” (burden of production/persuasion.)
1. (p.586) Gomez v. Toledo, (U.S. 1980). Π discharged from Puerto Rico Police Dept. after testifying against other officers. At trial, Δ successfully asserted Rule 12(b)(6) dismissal. Makes more sense for Δ to have the burden of pleading the affirmative defense of good/bad faith. Requiring Π the burden ignores established practices of law.
i. Allocation issue: whether Π must assert Δ acted in bad faith or if Δ must assert Δ acted in good faith à S.C. looks at the 1. plain language in statute, 2. policy
ii. J. Rehnquist points out this may be an exception to “he who pleads must prove” b/c Δ has the burden of pleading (better position to provide that information), but Π may still have the burden of proof at trial.
2. (p.593) Leatherman v. Tarrant County Narcotics Unit, (U.S. 1993). 2 incidents of unnecessary roughness during searches. Does FRCP require “heightened pleading” in civil rights cases against a municipality? Complaint is okay; municipalities do not get same immunity as government officials, so heightened pleading is not required.
i. Conflict is the specificity of pleading required in Federal court notice pleading.
ii. Heightened pleading standard from common law (inconsistent w/ FRCP liberal take on notice pleading.
a) Rule 9(b) only imposes a ↑ standard usually only for fraud or mistake.
b) Here, the 5th Cir. was not authorized to impose the ↑ standard.
E. Ethical Constraints on Pleading
1. Note, no longer required (as was by common law) that pleadings must be consistent à may plead alternative theories, as long as ethically consistent w/ Rule 11.
i. (p.601) McCormick (Δ) v. Kopmann (Π), (Ill. 3d. 1959). Π’s husband killed in car accident by Δ. Π pleads 2 alternate theories: Δ negligence or Π intoxicated b/c of Huls. Π’s two counts do contradict but alternate theories are allowed.
a) Δ’s motion to dismiss b/c Π’s counts 1 and 4 are fatally repugnant exist denied b/c Ill. law, like Rule 8(e)(2) allows Π to plead alternate claims in good faith when Π does not know which of the claims were true à truth established in trial.
b) Judicial efficiency in allowing alternate theories – otherwise, Π would have to pick 1 theory, file and if lost, re-file the 2d theory.
2. Frivolous Claims and Contentions
i. Legal remedies against lawyers who file pleadings w/ little basis in law or fact.
a) Malicious Prosecution: (1) Δ plead against Π; (2) won; (3) w/ no probable cause; (4) Δ acted w/ malice; and (5) Π suffered special damage (some jdxs.)
1) A difficult tort to utilize.
b) Abuse of Process: legally justified claim undertaken w/ improper motivation.
ii. Factors in determining frivolous claim:
a. Reasonable investigation;
b. Evidentiary support; and
c. Existing law, controlling precedent, support for argument.
