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Civil Procedure II
University of South Carolina School of Law
Samuels, Jeffrey M.

CIVPRO II Outline
 
I.  Pleading
            A.  Pleadings and Form of Pleading
                        1.  Federal Rules Pleading:  Dioguardi v. Durning
                        2.  R 62 Stay of Proceedings
                                    a.  Four factors Test:
                                                i.  Applicant’s likelihood of prevailing on the case.
                                                ii.  Whether applicant will suffer irreparable harm absent a stay.
                                                iii.  Harm that other party will incur if the stay is granted.
                                                iv.  Where the public interest lies.
            B.  The Rules
                        1.  FRCP 2
                        2.  FRCP 3
                        3.  FRCP 7- Pleadings Allowed, Form of Motions
a.  Motions ¹ Pleadings.  A motion is directed to the court- a request for action.  A pleading is directed at your opposing party.
R7(a) governs pleadings; 7(b) governs motions.
b.  there are only 5 recognized pleadings, and dozens of motions
                        4.  FRCP 8- General Rules of Pleading
                        5.  FRCP 9- Pleading Special Matters
                        6.  FRCP 10- Form of Pleading
                        7.  FRCP 11- Signing of the Pleadings, Motions,…Sanctions
                        8.  FRCP 12- Defenses and Objections
C.  Form Complaints- You can use them, but that doesn’t guarantee that it won’t be rejected for some type of deficiency.
            D.  Heightened Specificity Requirements in Certain Cases
1.  Leatherman v. Tarrent County-  Civil case involving civil rights violations.  D tried to assert heightened pleading standards statuts under 42 USC § 1988.  Rule: Municipalities do not enjoy the “heightened pleading” standard allowed for states and the federal government for immunity from suit. 
E.  Pleading Inconsistent Facts and Alternative Theories.  Bottom line, you can do this.
1.  McCormick v. Kopmann
            F.  Defendant’s Options in Response
                        1. Rule 12 Motions: FRCP 12(b)
a.  Molasky v. Garfinkle- 12(b)6 can be used when P has no ground for claim in law.
b.  Mitchell v. EZ Way Towers.  Issue: delineating the difference between a 12(b)6 [failure to state a claim for which relief can be granted] and 12(e) [motion for a more definite statement].
            i. Use of 12(b)6-  “In appraising the sufficiency of the complaint we follow…the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the P can prove no set of facts in support of his claim which would entitle him to relief.”
·        When 12(b)6 is granted, the claim is dismissed!
ii.  Use of 12(e) When “a party cannot be reasonably required to frame a responsive pleading.”  When motion granted, the court does not dismiss the pleading- the party is allowed to go back and reframe it.
iii.  NOTE:  Even if you “admit the facts” when asserting a 12(b)6, if the motion is denied, all bets are off- you can go back and deny everything is need be!
c.  R12(b) offers 7 types of motions to the defense.  1-5 are procedural, 6-7 are substantive.
d.  12(b) motions are dispositive; they can end the case.  12 (e) and (f0 are not dispositive- they are all about streamlining and clarifying the case!
                        2. The Answer
                                    a.  Responses to Plaintiff’s Allegations
                                                i.  Admissions
                                                ii. Denials
                                                iii.  Denials for Lack of Information
                                    b.  Affirmative Defenses (R8(c))
                        3.  Claims of the Defendant- two types: compulsory and permissive. 
See R13
                        4.  Failure to Respond: Default and Default Judgment: R55
                        5.  Rule 42:  Motions for Consolidation or Separate Proceedings.
                        6. Rule 56:  Motion for Summary judgment.
            G.  Amended Pleadings, FRCP 15
                        1. Variance
                        2.  Amendment and Statute of Limitations Under R15(c).
                                    a.  Marsh v. Coleman Company
                        3.  Amendment to Change a Party-RTR
4.  Beck v. Aquaslide ‘N’ Dive  Corp. D allowed to amend their pleading of admission to manufacturing a product that caused P’s injury- because they discovered that they did not make it.  D allowed to chage admission to denial, then move for summary judgment. Prof:  In no case will the R15 technicalities subvert justice.
5.  Supplemental pleadings- R15(d)- RTR
6.  Veracity of pleadings
a.  Hadges. Yonkers Racing Corp.
H.  Summary Judgment, FRCP 56. Adjudication w/out trial or jury.  Purpose is not to decide issues of fact themselves, but determine is there is any genuine issue that could be contended (and thus require resolution by trial).
1.  the SJ motion is usually made before trial, but is during the trial it becomes evident that it can be moved for, its OK.
2. Difference between 12(b)6 and SJ:
a.  R12 motions take the pleading on face value.  All undenied averments are accepted as true.
b.  SJ proceeding go beyond the pleadings- both sides submit separate briefs arguing for/against SJ, and the judge has discretion to investigate any relevant evidence- even if it might not be admissible in trial.  Also, the ct will look at the evidence in light most favorable to the non moving party.
c.  NOTE:   jury verdict are harder to appeal and overturn that a judge’s SJ verdict or directed verdict.  Because of this, judges will frequently reject an SJ or Directed verdict motion to allow the jury to give a verdict.
                        3.  Directed Verdict- ct hears the trial, but takes the decision from the jury because the court finds that no reasonable jury would make a finding different from his (the outcome is obvious).  This streamlines the litigation.
4.  Anderson v. Liberty lo

outside of their jurisdiction.  Violation of Due Process, and amounts to excessive punishment.
 
2.  State Farm v. Campbell –  applied and illuminated the principles of Gore:
                        a.  Degree of Reprehensibility- the first guidepost of Gore acts like a switch: physical or economic damages.  If damages are purely economic, then the court directs you straight to the third guidepost- comparing the civil penalties to the punitive damage award. Generally.  But the court also recognized that the potential physical harm that may be applicable could have you going back to the second guidepost.
                        b.  Gave a reality check for the “single digit” guidline of proportionality of punies.  It stated that the ratio establishes a presumption of unconstitutionality if exceeded.  Prof noted that this was judicial legislating.
                        c.  Nationwide conduct issue-  reaffirmed that states cannot punish out of their jurisdiction, but does allow Ps to admit evidence of systematic nationwide conduct for the purposes of establishing the pattern of conduct consideration of reprehensibility- but the damages must still be confined to that jurisdiction.
            3.  Notes on Punitive Damages
4.  Specific Relief.  You know what this is.  Just remember that courts are more reluctant to impose this remedy.
 
            C.  Provisional Remedies
1.  Attachment- used when D can’t pay out on the judgment, which then attaches onto future profits, revenues, existing property, etc.  Essentially attachment is a lien that goes beyond just physical property.
                        2.  Lis Pendens – the jurisdictional control or power acquired by a court over property while legal action is pending.  When recorded as a notice, it keeps a party from alienating the property.  This has a slightly better effect in notifying the public at large of the disposition of property.
                        3.  Review of Judicial Discretion: 
a.  Weinburger v. Romero Barcelo
4.  Preliminary Injunctions
                                    a.  FRCP 65 (a)
b.  Lawson Products, Inc.  v.  Avnet, Inc. (Ct App 7th Cir, 1986)-  Is the case that evaluates the quintessential concern- preventing harm while balancing the harm done to both parties.
5.  Temporary Restraining Orders (TRO)-
            b.  FRCP 65 (b)
            D.  Foreclosure of Remedies by the Passage of Time- Statlims and Laches
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