Civil Procedure II Outline

Pleading
Complaint – FRCP 4/8(a)
·         FRCP 4 – Technical rules
(a)(1)A summons must contain:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff’s attorney or — if unrepresented — of the plaintiff;
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint
(F) be signed by the clerk; and
(G) bear the court’s seal.
            (c) Service
(2-3) By 18+ y/o non-party; Or Marshall; Or Special Appointee
·         FRCP 8(a) – General Rules
A pleading that states a claim for relief must contain:
1.      a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
2.      a short and plain statement of the claim showing that the pleader is entitled to relief; and
3.      a demand for the relief sought, which may include relief in the alternative or different types of relief.
Two types of pleading
·         Notice Pleading (FED standard)
o       Originally: facts not very important as will come out in discovery
o       Later: Bell Atlantic v Twombly
§         SC required more facts to keep from incentivizing frivolous claims involving huge discovery
·         In whichD would just settle
§         Created plausible standard
·         Fact/Code Pleading (CA standard)
o       Profess to require a factual statement in the complaint
o       Some statutory allegations okay so long as D is fairly apprised of the factual basis against him
§         Semol v Sansoucie
·         P took the statutory text and turned it into a complaint
Who has the Burden of Pleading
·         P has the duty of asserting the claims
·         D has the duty of asserting defenses and immunities
·         Gomez v Toledo
o       P accused D of violating civil rights statute
§         Statute included immunity of “good faith”
o       Court: D has the duty of asserting all defenses/immunities
§         Making claims easy, in the interest of protecting fed rights
Special Matters that Alter Pleading Standards – FRCP 9
·         Statute or rule can create a heightened pleading standard in specific cases
o       FRCP 9(b) – Alleging Fraud or Mistake
§         Party must state with particularity the circumstances constituting fraud and mistake. Malice, intent, knowledge etc may be alleged generally
o       Leatherman v Tarrant County Narcs
§         5th Circuit dismisses case based on circuit rulings imposing a heightened pleading standards
§         SC overruled: Heightened standard counter to FRCP 8
·         FRCP can specifically create a higher standard
o       i.e. FRCP 9
·         Courts can not unilaterally create heightened standard
Inconsistent Alternative Allegations
·         P allowed to make allegations inconsistent w/ one another
·         Both are presented to Jury but P cannot collect on both
·         P does not need to guess what theory is more likely to win
·         Pleading to one is not an admission the other is false
·         McCormick v Kopmann
o       P husband dies in accident
o