Civil Procedure II Outline

Civil Procedure II- Aarons-Spring-2014

I. PLEADING

a. Rule 8(a)- Claims for Relief

i. A pleading which sets forth a claim for relief…shall contain 1) an allegation of jurisdiction, 2) a short and plain statement of the claim showing that the pleader is entitled to relief, and 3) a demand for judgment for the relief the pleader seeks.

1. Plain statement must 1) invoke, at least by reference, a body of substantive law; 2) sketch a factual scenario that, if shown to be true, falls within that body of law.

b. Rest of Rule 8- General Rules of Pleading

i. 8(b)- denial

ii. 8(c)- affirmative defense

1. defendant has burden of pleading any matter that would constitute an affirmative defense (Gomez)

c. Rule 9(b)- Heightened Pleading Standards

i. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

ii. Rule 9(b) Requirements

1. the time, place, and nature of the alleged misrepresentations must be included in a pleading based on fraud or mistake

a. There must be allegations of specific facts to show not only that defendant lied but what exactly the lie was

2. facts that give rise to a strong inference of fraudulent intent must be alleged in a pleading based on fraud or mistake

a. There must be facts from which it can be inferred that the defendant had fraudulent intent.

iii. Purposes of Rule 9(b)

1. to afford a litigant accused of fraud “fair notice of the claim and the factual ground upon which it is based”

2. to prevent insubstantial claims from advancing to discovery (avoiding strike suits)

iv. Problem for Plaintiff Alleging Fraud

1. Plaintiff will probably not be in a position to know about the important facts it needs in order to plead fraud with specificity.

2. The plaintiff’s lawyer will want to get to discovery to uncover such facts, but discovery will be unavailable if complaint is dismissed as insufficient under rule 9(b)

3. In order to get around this problem, the fraud plaintiff may first sue defendant on a general theory (if it has such a general theory on which to rely) and then get to discovery. If discovery reveals some facts the plaintiff can use to plead fraud with specificity, the plaintiff can go back and amend its complaint to plead fraud.

v. Problem for Defendant in Fraud Case

1. fraud cases threaten to turn contract claims into punitive damage actions

vi. Lack of Specificity Required in Civil Rights & Employment Discrimination Cases

1. Pleading standards of civil rights cases and employment discrimination cases are governed by Rule 8(a), which only requires a short, plain statement of relief

d. Rule 7(a)- Heightened Pleading Standard Required Through a Reply

i. Under Rule 7(a), the court can require the plaintiff to respond to the defendant’s answer.

ii. Even if the plaintiff files enough to satisfy Rule 8(a), the court may still require the plaintiff to include more in a reply to the answer. Essentially, the court can require a heightened pleading standard through Rule 7(a).

e. Rule 15(a)- Amendments to Pleadings

i. leave to amend shall be freely given when justice so requires

ii. if a plaintiff has not pleaded sufficiently under Rules 8 or 9(b), court may allow plaintiff to go back and amend complaint

iii. Court’s Considerations in Deciding Whether to Grant Leave to Amend (Forman v. Davis factors in Beeck)

1. whether the movant has demonstrated:

a. reason for not getting the pleading right in the first place

b. undue delay

c. bad faith or dilatory motive

d. repeated failure to cure deficiencies by amendments previously allowed

e. undue prejudice to the opposing party by virtue of allowance of the amendment

f. futility of amendment

f. Rule 11- Sanctions

i. 11(a)

1. requirement of signature, signer’s address and phone number

ii. 11(b)

1. representations to the court cannot be for an improper purpose

2. claims, defenses, and other legal contentions are warranted by existing law or nonfrivolous arguments for the establishment of a new law

3. allegations or other factual contentions must have evidentiary support or likely to have evidentiary support after a reasonable investigation or discovery

4. denials of factual contentions are warranted by the evidence or, if specifically so identified, based on a reasonable lack of information or belief

iii. Standard of Rule 11(b)

1. based on knowledge formed after an inquiry reasonable under the circumstances

2. Factors determining whether inquiry was reasonable under the circumstances:

a. complexity of case

b. whether the client was asked about details/facts

c. time that the lawyer had to inquire (statute of limitations)

d. availability of lawyer’s resources

iv. 11(c)

1. 11(c)(1)

a. sanctions are to be initiated either

i. by a motion that is to be served upon the offending party and only filed with the court after 21 days have passed w/o the offending party withdrawing the complaint or correcting the mistake, or

ii. on the court’s own initiative

2. 11(c)(2)

a. a sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated

i. monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2)

ii. monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned

3. 11(c)(3)

a. when imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed

v. 11(d)

1. inapplicability to discovery

vi. Questions to Ask When Confronted With Possible Rule 11 Violation

1. Has there been a violation of Rule 11(b)?

2. If so, should sanctions be imposed? (This is up to the court’s discretion. Consider factors below.)

a. Factors in awarding sanctions:

i. willfulness or negligence

ii. whether it has been done in other litigation

iii. impact on this