CIV PRO Spring
Heiser, Rm 211A, T/Th 2:30-5:00 p.m.
1.13.04 582-595, 607-621 (595-607 quickly), Rules 7-11 of FRCP
I. CH 5 PLEADING (CLAIMS AND DEFENSES)
A. INTRODUCTION
1. FRCP 7
a. FRCP 7(a) Pleadings; Basic Pleadings of a Federal Court Lawsuit (in writing)
i. P’s Complaint
ii. D’s Answer
a) D may file a counterclaim against P (and an reply f/P)
b) D may file a cross-claim against a co-D (and an answer f/P)
c) D may file a third party complaint against a new 3rd-party D (and an answer f/P)
d) California calls all 3 of these kinds of complaints as a “cross-complaint”
iii. P’s Reply in response to D’s answer (usually not required)
iv. No other pleading is allowed, except the court may order a reply to an answer or a 3rd-party answer.
b. FRCP 7(b) Motions and Other Papers
i. Application to the court for an order shall be by motion, which is stated in written notice of the hearing of the motion.
ii. All motions shall be signed in accordance w/Rule 11.
iii. Demurrers, Pleas, etc., are abolished
2. FRCP 7.1 Disclosure Statement
a. FRCP 7.1(a) Who Must File: Nongovernmental Corporate Party
i. Such must file 2 copies of a statement that identifies any parent corporation and any publicly held corporation that owns more than 10% of its stock or states that there is no such corporation.
b. FRCP 7.1(b) Time for Filing; Supplemental Filing
i. A party must:
a) file the Rule 7.1(a) statement w/its 1st appearance, and
b) promptly file a supplemental statement upon any change in info.
3. Basic Issues of Pleadings Today
a. Degree of specificity w/which you must plead things in the complaint.
b. Who pleads what? Who had the burden of pleading certain things in a lawsuit?
c. What devices are available to test out whether or not P has stated a proper claim for relief?
4. 2 Kinds of Pleading in Civil Suits
a. Division b/tw majority (federal courts) and minority rules
i. Notice pleading: majority
a) To assert a substantive claim in federal DC in an ordinary case, a complaint need only provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”
i) Simply puts the other side on “notice”.
ii) If taken to its logical sense, it’s very forgiving.
b) First adopted in 1938 in the federal courts as part of the new FRCP.
ii. Code pleading: minority (sometimes called “fact pleading”) (California and NY, but has adopted some parts of notice pleading.)
a) Requires somewhat but usually not a great deal) more.
b) To state a proper complaint, must allege facts that comprise the essential element of the COA.
i) 50 years ago, facts were limited to “ultimate” facts.
ii) Now, there’s less of a concern of whether the facts are too specific or too general.
iii. The central function of the pleadings is to provide notice to the other party of the pleader’s contentions and to provide a basis for the proceedings that follow.
iv. In civil litigation today, the center of gravity is discovery and the motions that follow.
B. WHO MUST PLEAD WHAT? (A question of allocation.)
1. Who has to plead the issue? (Allocation ex: Is it up to P to plead that D is not an APR, or is it up to D to prove he is an APR?
a. When P wants to allege the complaint/prima facie case (P must allege essential elements of his COA)
i. General Rule: This is important b/c if you have the burden of pleading something, you have the burden of proof at trial. (“He who pleads must prove”)
a) Burden of Pleading: the party w/ the burden of pleading must allege the fact in his pleadings.
b) Burden of Proof:
i) Burden of Production: must produce sufficient evidence to support his case.
ii) Burden of Persuasion: the party w/the burden of persuasion must convince the fact-finder that the alleged facts are true.
(a) In ordinary civil cases, P must prove his case by a “preponderance of the evidence”.
(b) In other certain civil cases (like fraud), P must prove by “clear and convincing evidence”.
(c) In criminal cases, P must prove D’s guilt “beyond a reasonable doubt”.
2. Cleary, Presuming and Pleading: An Essay on Juristic Immaturity p. 583
a. The Substantive Law
i. The law recognized certain elements as material to the case, and the presence or absence of each of them is properly to be considered in deciding the case.
a) Rules of substantive law are “statement of he specific factual conditions upon which specific legal consequences depend…”
b. Prima Facie Case and Defense
i. Trial as not an inquest or investigation, but rather a demonstration conducted by the parties.
ii. A “prima facie case”, or “cause of action”, consists of certain selected elements which are regarded as sufficient to entitle P to recover, if he proves them and unless D establishes other elements which would offset them.
c. Allocating the Elements
i. In COAs based on statute, if an exception appears in the enacting clause, i.e., the clause creating the right of action, then the party relying on the statue must show that the case is not w/in the exception; otherwise the responsibility for bringing the case w/in an exception falls upon the opposite party.
ii. Policy
a) Judge Clark said, “One who must bear the risk of getting the matter properly se before the court…has to that extent the dice loaded against him”
iii. Fairness
a) The nature of a particular element may indicate that evidence relating to it lies more within the control of one party, suggesting the fairness of allocating that element to him.
i) Ex: knowledge of one’s own wrongdoing.
iv. Probability
a) The burden is placed on the party who will be benefited by a departure f/the supposed norm.
b) Matters occurring after the accrual of P’s rights are almost always considered affirmative defenses.
i) This may be b/c a condition once established is likely to continue, thus the burden should fall on the party benefited by a change.
d. The Role of Pleading
i. Allocation of elements may be suspended until the very end of the case, when it can be decided what the responsibilities are of each party and whether he has discharged them.
a) But, decisions prior to trial help eliminate uncertainties and can constitute reasonably accurate blueprints of the trial to follow – these are some of the useful functions of pleadings.
3. Sufficiency of the Complaint
a. A complaint must contain a statement of the facts upon which recovery is sought
i. Allegations should be simple, concise, and direct.
ii. But, the substantive law normally does not indicate what factual conditions, or elements, must be asserted by P to constitute a sufficient complaint.
b. Allocation of relevant elements
i. The substantive law determines what elements are relevant to a case.
a) Allocating the burden of pleading and proof is a procedural matter.
i) P must allege enough particulars about the incident to constitute a prima facie case, meaning that the facts alleged would permit recover, if uncontroverted and in the absence of an affirmative defense.
ii) Other facts may also be relevant to the case, but they will be considered only if alleged by D, usually as an affirmative defense.
iii) Rules of allocation may be based on the way the statue is written, on custom, or on the need to effectuate public policy.
c. Public Policy
i. Gomez v. Toledo, US SC, 1980, p. 589
a) Facts:
i) Gomez (P) was an agent w/Puerto Rican police, who told his supervisor that 2 other agents had used false evidence in a criminal case.
(a) P eventually testified for the defense regarding falsity of the evidence.
ii) Toledo (D), the police superintendent, provided info that led to charges against P for illegal wiretapping of the 2 agents’ phones.
(a) D suspended P, then discharged him w/o a hearing.
iii) TC dismissed the charges against P for lack of probable case, and P was later reinstated w/back pay.
iv) P then sued D under 42 U.S.C. section 1983 (the most important Civil Rights Statute in the history of the U.S.) – a substantive statute that authorizes a COA against state or gov’t officials under color or state law if they have deprived someone of a federal right, claiming damages f/ deprivation of his civil rights.
(a) P claims a violation of due process clause b/c he was fired w/o a hearing.
(b) The Allocation issue: the question of qualified immunity of the police superintendent – must P allege that D acted in bad faith, or is the burden allocated to D to assert actions in good faith?
(i) Common Law regarding qualified immunity: can only recover f/the individual officer/D if that D has acted in bad faith – they are immune f/money damages if they have acted in good faith.
v) DC dismissed the complaint b/c P did not allege D acted in bad faith, and D was entitled to qualified immunity for official acts done in good faith.
vi) AC affirmed and SC granted certiorari.
b) Issue: When a defendant public official might be entitled to qualified immunity, must P allege bad faith in order to state a claim for relief or must D plead good faith as an affirmative defense?
c) Held: No, judgment reversed for P.
d) Rationale:
i) Section 1983 provides a COA for “the deprivation of any rights, privileges, or immunities secured by the Constitution and law” by any person acting “under color of any statute, ordinance, regulation, custom, or sage, or any State of Territory.”
ii) In certain limited situations, the court has held that public officers are entitled to a qualified immunity f/damages liability under §1983.
(a) This conclusion was based on an unwillingness to infer f/legislative silence a congressional intention to abrogate immunities that were both “well-established at common law” and ”compatible w/the purposes of the Civil Rights Act.”
iii) SC used process of reasoning very similar to that of Cleary.
(a) First looked at the language of the Statute itself.
(i) Despite the availability of a qualified immunity, there is nothing in the language or legislative history of section 1983 which requires an allegation of bad faith to state a claim.
(ii) The statute merely requires 2 allegations: 1) That some person has deprived P of a federal right; and 2) That the person acted under of color of state or territorial law – both of which were successfully established by P.
(b) Then looked at policy of the Statute.
(i) Statute was meant for the policy to be liberally remedial.
(ii) Section 1983 is remedial legislation and should be generously construed to further its primary purpose. But, public officers may be entitled to qualified immunity f/damages under that section if they acted in good faith.
(iii)Thus the allocation of the burden should be on D.
(c) Fairness
(i) It is not fair to place burden on P, b/c only D knows if he acted in subjective bad faith.
(ii) Since P made the 2 necessary allegations, his complaint should not have been dismissed. Qualified immunity is a defense, so D has the burden of pleading good faith. Only D would know whether he believed he was doing right, so this allocation is the most fair and appropriate.
iv) FRCP 8(c) Affirmative Defenses
(a) Assuming the allegations of the offense are true, here are the reasons why P cannot recover.
(b) Qualified immunity is an affirmative defense.
e) Concurrence (Rehnquist): The opinion addressed only the burden of pleading, not of (proof) persuasion.
i) The general rule is that if you have the burden of pleading you will most likely have the burden of proof, but Rehnquist said this may be an exception: P may have burden of persuasion beyond preponderance of the evidence that D acted in bad faith (despite D having the burden of pleading).
C. WHAT MUST BE PLEADED?
1. Federal Court filing of the pleading of the Buffalo Mining disaster, p. 595.
a. An example of a very detailed factual (notice) pleading here; this is desired although not required b/c it’s basically for an audience, and an unpleasant story may lead to a quick judgment.
2. Weinstein and Distler, Comments on Procedural Reform: Drafting Pleading Rules, p. 607.
a. The Drafter’s Dilemma
i. It is generally conceded that the outcome of a case ought not to depend upon technical deficiencies in draftsmanship, whether or not intended – thus amendments are freely granted and leave to replead is now routine disposition of motions to compel pleadings to measure up to rigid standards.
a) Enforcement of strict standards stressing the importance of pleading is very difficult: Adept pleaders are reluctant to reveal their positions in too precise a form early in the litigation, and inept pleader may be unable to do so.
i) Strict standards also do not achieve the expected results and is wasteful of court’s energy.
b) But, flexibility that minimizes written pleadings can also create problems in the utilization of other pre-trial procedures which need to be relied upon.
i) Such flexibility pace burdens upon pretrial procedures but may inadequately control them and is wasteful of litigants’ energy in preparation for trial.
b. Pleading in Historical Perspective
i. The Common Law
a) The purpose of pleadings was to narrow a controversy down to a single issue of law or fact.
i) The forms of actions were limited and rigid, and controversies were forced into fitting those molds.
ii) This led to extremely technical rules of pleading, such as the Hilary Rules of 1834, which were intended to revitalize common law pleading, but turned out disastrous resulting in an intolerable burden of procedural litigation clogging the courts.
ii. Code Pleading
a) Thus the (David Dudley) Field Code was developed and used in NY in 1848, which sought only simple truthful statements of the facts showing a COA.
i) This reduced the number of pleadings, but its strict enforcement called for virtually impossible distinctions b/tw “ultimate facts,” “evidence,” and “conclusions,” and so retained dysfunctional complexity.
ii) Retained the common law demurrer. (See FRCP 12(b)(6) below)
b) Modern Code Pleading is a descendant of the original code pleading and is characterized by pleading facts constituting the COA rather than legal conclusions.
i) Pleading in code states is often called “fact pleading.”
(a) Only practiced in a minority of states, though w/a very substantial proportion of the population of the U.S. within their borders.
(b) Advantages: more efficient and cost-effective than notice pleading b/c less costs to litigants, avoids unnecessary delay in a case reaching the trial state, issues are clear immediately upon filing of a petition, promotes judicial economy.
(c) Challenges to the sufficiency of pleadings are more common in code pleading states.
(d) But the difference b/tw modern code and notice pleading is not great.
iii. The English Experience Under the Judicature Acts of 1873-1875
a) The Acts were intended to simplify pleadings, and whose trend gradually led to the adoption of the FRCP in 1938.
iv. The Federal Rules
a) New terminology was adopted and the old code terms were abandoned, which swept away all the difficult interpretations.
i) A complaint was now only required to contain simply “a short and plain statement of the claim showing that the pleader is entitled to relief”.
b) The Federal Rules had been adopted in one form or another by the states.
c) The Federal Rules have not eliminated procedural litigation, but they have made access to court much easier than under the complex rules of earlier times.
3. The Complaint
a. Functions
i. Notice to the D of the COAs
ii. w/the answer, it delineates the issues contested for trial
b. Themes of the Complaint
i. Specificity of the allegations of the complaint.
ii. Whether or not the complaint is substantively sufficient.
a) Who has the burden dictates the elements of the case
i) General rule: The one who has the burden of pleading has the burden of proof (burden of persuasion and production).
c. Note on p. 622
i. The pleading needs to contain the basis of the federal subject matter JD (Rule 8).
a) This may be either federal question (1331) or diversity (1332).
b) Do not need facts, just put the court on notice of which statutes are relevant.
d. Forms (allegations/parts of a complaint attached to the pleading)
i. P. 142 of FRCP book
a) Examples: Form 2 on p. 146, 3 on p. 147, Form 11 on p. 150 (notice pleading), and Form 12 p.151
4. Specificity of Pleadings; Problems of Specificity
a. Liberal approach to statement of claim
i. Dioguardi v. Durning, 2nd Cir. AC, 1944, p. 611
a) Facts:
i) Dioguardi (P) imported merchandise f/Italy including bottles of tonics.
(a) P’s consignor failed to claim the merchandise.
ii) During (D), the Collector of Customs, held the merchandise for a year and ultimately sold it at a public auction for $110.
(a) P claimed he had offered $120, and 2 cases of the tonic were lost while in D’s possession.
(i) Claim drafted was difficult to understand what claim was really about.
iii) P sued for $5,000 in damages.
iv) TC granted D’s motion to dismiss on the ground that the complaint failed to state facts sufficient to constitute a COA for relief.
v) P appeals.
b) Issue: Must a complaint state facts sufficient to constitute a COA to withstand a motion to dismiss?
c) Held: No, judgment reversed for P, whose claim was upheld by FRCP 8(a).
d) Rationale:
i) Under (new) FRCP 8(a) (there is no pleading requirement of sating “facts suf
This is b/c comparable worth studies only reflects market trends (higher demand for electricians).
(b) Unfortunately, Ps complaint was not drafted as a plain and short statement of the claim.
v) In practice, few complaints follow the models included in the Federal Rules’ Appendix of Forms.
(a) In this case P’s complaint was 20 pages long w/an appendix consisting of a 100-page comparable worth study.
(i) Probably did not use notice pleading b/c Ps probably did not know what to plead and did not know the status of the law.
(b) A long, detailed complaint may contain enough facts to show that the P’s legal rights were not invaded, which is what the DC held in this case.
vi) Errors of the Ps: pleaded too specifically and too detailed..
vii) But a COA can be found in the complaint.
viii) Rather than alleging merely that D intentionally discriminated against female employees b/c of their sex, which would clearly constitute a claim, the complaint alleges numerous facts based on a theory that D failed to adopt a wage scale based on comparable worth, which is not a claim under federal law.
(a) The list of discriminatory practices alleged does not contain any actionable claims, but is merely illustrative.
(i) The initial part of the paragraphs charging the state w/intentional discrimination would have been sufficient under Title VII, but the mention of “sex-segregated” blurs the picture.
(ii) But, a complaint cannot be dismissed merely b/c it includes both valid and invalid claims and when only some parts of the complaint have a COA.
ix) Another paragraph of the complaint alleges willful failure to take any action to correct the alleged discrimination, but under federal law the only basis for a claim is if D did not correct the alleged discrimination b/c of the sex of the employees; i.e. if D though men should be paid more than women despite the lack of difference in the skill, effort, or conditions of the work.
(a) But P did not allege such a motivation, and did not cite the Equal Pay Act in the complaint.
(b) It is not a violation that the male jobs are higher paying if D’s wages reflect the market wages.
x) Test of the FRCP 12(b)(6) on p. 630, a complaint “should not be dismissed for failure to state a claim unless it appears beyond doubt that the P can prove no set of facts in support of his claim which would entitle him to relief.” (Conley v. Gibson, 1957).
(a) Upheld by the SC: Federal Court Test which tells a TC judge how it ought to be a 12(b)(6) motion (motion to dismiss).
(i) If you follow notice pleading, it’s virtually impossible to uphold the motion to dismiss.
(ii) Only need a broad state of a COA, facts will come out on discovery later.
(b) And a P’s complaint does not need to plead evidence.
(c) Thus, although P’s complaint makes a series of allegations that do not constitute a valid claim, it also could be alleging intentional discrimination, so that it does state a claim.
xi) To prevail on the merits, P must prove that D is intentionally discriminating by paying workers in predominantly male jobs more than the market rate b/c most of those workers are male.
(a) This burden of proof may not be inferred by evidence of a comparable worth study.
xii) Even if none of the claims in the pleading did not have a proper COA, cannot grant a motion to dismiss b/c the pleading says “The acts, practices and policies of discrimination for which Ds are responsible include, but are not limited to, the following (list).”
(a) Very liberal view of the 12(b)(6)
xiii) But, when a D is unclear about the meaning of the allegation, the proper course is not a motion to dismiss, but to move for a more definite statement.
xiv) To be immune f/Rule 12(b)(6) and satisfy notice pleading, Ps should have only said in the complaint is that the Ds intentionally discriminated against females based on their sex.
(a) Zillions of facts could have supported this COA.
xv) Even though federal courts authorize notice pleading, it is not required.
(a) More to your peril: the more specific the pleading, the more the pleading will not survive a motion to dismiss.
e. Note on Pleading Inconsistent Theories
i. Common law code/fact pleading required that a pleader’s allegations be consistent, but this is no longer true.
a) Ex: Chirelstein v. Chirelstein (1950, p.632)
b) Modern procedural regimes generally permit pleading of inconsistent or alternative allegations, so long as the pleading satisfies FRCP 11.
i) This is b/c of fairness: the P doesn’t yet know which decrees are valid.
ii) But this is not a good tactic b/c could have a hung jury, or the fact-finder could think something is fishy.
iii) This inconsistent pleading was codified in Rule 8(e).
f. “Heightened pleading standard” not allowed
i. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, US SC, 1993, p. 633
a) There are some cases which require a heightened pleading standard.
i) This is usually b/c you’re dealing w/a substantive claim that has fallen out of favor.
(a) Better to do this rather than get rid of it all together.
ii) Prime example: Federal Private Securities Reform Act of 1995.
(a) Claims must be plead w/specificity, and you can’t get discovery until after all the responses have been given.
(b) This trumps Rule 8.
b) Facts:
i) Leatherman and another homeowner (Ps) had their homes forcibly entered by agents of TCNICU (D) b/c of detection of odors associated w/narcotics.
(a) Ps sued several local officials, the county, and municipal corporations that employed the offending police officers (Ds), claiming that the police conduct violated the 14th Amendment of the Constitution.
ii) DC dismissed the case b/c Ps failed to meet the “heightened pleading standard” required in the Court of Appeals for the 5th Circuit.
iii) AC affirmed, SC granted certiorari.
c) Issue: May a federal court apply a “heightened pleading standard” more stringent than the usual requirements for Federal Rule 8(a) in civil rights cases alleging municipal liability?
d) Held: No, judgment reversed for Ps.
e) Rationale:
i) The 5th Circuit adopted the “heightened pleading standard” for cases against gov’t officials involving the likely defense of immunity, such as section 1983 suits.
(a) The source of this requirement is not by statute (like the Securities Act), but by common law.
(b) The standard requires that a P’s complaint state w/ factual detail and particularity the basis for the claim, including why the D-official cannot successfully maintain the defense of immunity.
(i) The rationale is to minimize expensive and time-consuming discovery in such cases, which are often ultimately dismissed on immunity grounds.
ii) Ds claim that the heightened pleading standard should apply b/c municipalities are no different f/state or local officials sued in their individual capacity.
(a) Although it is true that a municipality cannot be held liable under section 1983 on a respondeat superior theory, the protection against liability does not extend to immunity f/suit.
