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Civil Procedure II
University of South Carolina School of Law
Stravitz, Howard B.

Civil Procedure II Outline
Professor Stravitz—Fall 2005
A. Complaints
1. Content and Format (How does the plaintiff initially state their legal claim?)
POLICY—Rule 8, which governs pleadings, institutes a “notice pleading” standard, which states that pleadings are sufficient so long as they give reasonable notice to the other parties of the claims and defenses. The purpose of notice pleading is so that cases are adjudicated on the merits rather than on formalities.
The Basics: FRCP 8
FRCP 8(a) – A pleading that contains a claim for relief, including original claims, counterclaims, cross-claims, and third party claims shall contain:
1.       JURISDICTION: A short and plain statement of the grounds on which the court has jurisdiction (unless the court already has jurisdiction, in which case there is no need to repeat it),
2.       CLAIM: A short and plaint statement of the claim showing the pleader is entitled to relief—A liberal approach to describing the plaintiff’s claim, AND
3.       RELIEF: A demand for judgment for the relief sought by the pleader—This is the “prayer.” Damages can be generally stated as a lump sum, but special damages must be pled specifically. Damages can also be described as “an amount to be determined at trial.” 
CASES for FRCP 8(a)–
                GILLESPIE v. GOODYEAR: [Code Pleading Case] Rule: The complaint may not simply state a legal conclusion (“The defendant was negligent”) without alleging certain facts sufficient to provide the defendant with the ability to test the legal sufficiency of the claim. Vice-versa, the pleader may not simply state facts without stating the legal claims which are based on those fact.  
DIOGUARDI v. DURNING: [8(a)(2)] Issue: What does a complaint have to state in order to comply with the 8(a)(2) requirement that the pleader make a “short plain statement of the claim?”
Holding: So long as the complaint gives fair notice of the plaintiff’s claim through use of the facts upon which it rests the pleader has complied with the 8(a)(2) requirement for a “short, plain statement of the case.”
                NOTE: Following the forms provided by the FRCP is sufficient to comply with 8(a)(2).
GARCIA v. HILTON HOTELS, INC.: [Rule vs. Code – 8(a)(2)] Rule:  Code pleading requires that all essential elements of the complaint, and facts upon which they are based, however, FRCP 8(a)(2) requires only that a pleader make a statement of facts sufficient to allow the defendant the ability to infer the essential elements of the plaintiff’s claim. 
Rule: Any reasonable doubt as to the sufficiency of a complaint is construed in favor of the pleading party.
BAIL v. CUNNINGHAM BROTHERS: [8(a)(3)] Rule: At trial a court can allow a reward of more than what is stated in the plaintiff’s 8(a)(3) ad damnum clause so long as it is reasonable to believe that the defendant would not have proceeded any differently with his defense had the actual award given at trail been stated in the ad damnum clause of the complaint. 
Note: A plaintiff cannot recover more than the amount stated in the ad damnum clause in the case of a default judgment [54(c)]. 
Note: FRCP 54(c) provides that the plaintiff shall receive the judgment awarded even if the judgment is in excess of the amount pled, so long as, the plaintiff is entitled to such recovery. (i.e 54(c) does not concern itself with the defendant’s ability to make strategic moves.)
FRCP8(e) – More guidelines for pleadings:
1.)    Each averment in the pleading must be simple, concise, and direct. There is no technical form required in pleadings.
2.)    A party can plead in the alternative. Pleading inconsistent claims is acceptable so long as each claim plead could, based on the facts alleged, stand on its own. A pleading must conform to Rule 11 (truthfulness in pleading)
                Pleading S

n of pleadings.
Summary:  All averments of claims and defenses shall be made in brief, numbered paragraphs [10(b)]. Referring to a document does not make the document and its contents part of the complaint [10(c)].   
2. Sufficiency and the 12(b)(6) Standard
FRCP 12(b)(6) – A complaint must state claim for which relief can be granted.
A defendant can challenge the complaint by bringing a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.
STANDARD: In deciding a 12(b)(6) motion, the complaint is construed in favor of the plaintiff with all of the allegations taken as true and doubts resolved in his favor.
TEST: The complaint must show (the court will only look to actual document):
                                                               i.      Legal Sufficiency—A complaint is legally insufficient if the law does not provide a remedy, even if all of the allegations on the face of the complaint are true. The law must provide a remedy.
                                                              ii.      Factual Sufficiency—The complaint must state facts sufficient to cover all elements of the substantive claim. The facts can either be directly or indirectly stated, meaning that the factual allegations do not have to be tied to a specific element, but they must address each element. Dioguardi v. Durning.
*If evidence is introduce either in support of or against a 12(b)(6) motion, the motion is then treated as one for summary judgment under Rule 56. See 12(b) last sentence.