Woolley – Civil Procedure – Spring 2013
Civil Procedure Outline
Assigning the Burden
This section focused on the ways in which the burden of proving a claim is assigned to different parties. Normally, a statute will not expressly indicate which elements must be proved by the plaintiff or which elements the defendant can prove to defeat liability.
Gomez v. Toledo
“Good faith” defense to §1983 claim is an affirmative defense not an element that the plaintiff must prove
Court considers three factors:
1) Language of statute—bad faith is not included in the statutory language
2) Precedent
3) Nature of defense/fairness—the plaintiff is unlikely to have access to information that would allow him to prove that the defendant acted in bad faith.
4) Contrary to practice in analogous situations
Analyzing a Statute
Language of the statute—if the element is listed as part of the cause of action, then the plaintiff likely bears the burden of proof. If the statute uses language like “unless X” or the element is separated from the description of the cause of action, then the defendant likely bears the burden of proof.
E.g. If A and B, the Plaintiff can recover, unless C. Plaintiff bears the burden as to A and B, and Defendant bears the burden as to C.
If A and B, then Defendant is liable; no defendant will be liable if C. Plaintiff bears the burden as to A and B, and Defendant bears the burden as to C.
3 Policy Considerations, if the language of the statute is ambiguous
1) Fairness—which party is most likely to have access to evidence that would prove the element
2) Policy—e.g. in libel actions, Plaintiff must prove that statements were untrue, because libel actions are disfavored as a matter of policy favoring free speech
3) Probability—does it seem probable that the element is true, e.g. defendant may have to prove involuntary action, because law assumes people act voluntarily
The Complaint
Bell Atlantic v. Twombly
-“Code” pleading v. “Notice” Pleading
-Must allege sufficient facts in complaint that “plausibly suggest” (tend to prove/ affirmatively show) that the Plaintiff is entitled to relief
-i.e. Alleging facts that are “consistent with” the elements of the claim is insufficient
In Twombly, alleging “parallel conduct” of defendants in an antitrust case was not sufficient, because while it was consistent with illegal collusion, “parallel conduct” did not by itself tend to affirmatively show illegal collusion
-Policy Concern: opening Δs and courts up to expensive and invasive discovery
-But not just limited to cases where cost of discovery is high
Effectively overrules Conley “no set of facts standard for notice pleading”
Rule 8(a)(2)
– Complaint must contain a “short plain statement of claim showing that the pleader’s entitled to relief”
Ashcroft v. Iqbal
Dismissing the plaintiff’s case alleging knowledge or condoning of religious and racial discrimination by Robert Mueller and John Aschroft because the complaint contained no evidence that they ordered the discriminatory activity, the Court applied the Twombly burden of pleading. Justice Kennedy identified two “working principles underl[ying the] decision in Twombly:”
1) “The tenet that a court must accept as true all allegations contained in a complaint is inapplicable to legal conclusions.”
2) Courts must determine of the complaint “states a plausible claim for relief survives a motion to dismiss,” the determination of which “requires […] judicial experience and common sense.” Therefore, courts “considering a motion to dismiss” may begin by “identifying pleadings that, because they are no more than legal conclusions, are not entitled to an assumption of truth.”
Applying these tests to the complaint, the Court held that Iqbal’s pleadings did not meet the Rule 8 test under Twombly because his allegations that Mueller was “instrumental” and that Aschcroft was the detention policy’s “chief architect” were conclusory and not entitled to assumption of truth.
Concerns about applicability persist after Twqbal. There is neither a clear way to distinction between facts, conclusions and evidence nor a clear process for determining what is a legal conclusion. Reluctant to apply the most rigid reading of Twqbal, courts avoid application by relying on Kennedy’s description of considerations of 12(b)(6) motions as a “context-specific task” using “common sense.”
Rule 12 Motion to Dismiss
Rule 12 (b)
12 (b) Motion must be made before a responsive pleading is filed or in an answer
Rule 12 (h)
-Disfavored defenses—12 (h)(1)
-12 (b) (2-5) Pers. Jur., Venue, Insuff. Process, Insuff. Serv.
-Waived if not included in 12(b) Motion to Dismiss or Answer
-12(g)(2)—Required to join motions, i.e. all 12 (b) defenses must be included in same 12 (b) Motion to Dismiss
-Favored Defenses
-12 (h) (2-3)
Failure to state a claim on which relief can be granted [12(b)(6)]
Failure to Join a Party [12(b)(7)]
Lack of subject-matter jurisdiction (not discretionary)
Rule 12(c)
Procedural device for asserting preserved or favored defense after answer filed but before trial
Rule 13(a) Compulsory Counterclaims
A party must assert any claim that the pleader has against the other party if the claim:
a) Arises out of the same transaction or occurrence; and
b) does not require adding an additional party over whom the court lacks jurisdiction
Rule 13(b) Permissive Counterclaims
Evidence
Admissibility—Evidence is excluded if inadmissible and objected to
Federal Rules of Evidence dictate admissibility of evidence
401: Relevance
Evidence is relevant if it makes a fact of consequence in the case more or less probable
901: Authentication
Document must be authenticated (sufficient evidence that doc is what it purports to be)
602: Personal Knowledge
Generally, a percipient witness can only testify to facts of which he has personal knowledge
801: Hearsay
Out of court statement used for its truth value/to prove truth of matter asserted
Out of court statements may be used for another purpose, e.g. to show the state of mind of the declarant
801 (d)(2)(A) & (D): Statements which are “Not hearsay” Rule
Admission by a Party Opponent is NOT hearsay
803: Hearsay Exceptions
There are numerous exceptions to the hearsay rule
805: Hearsay within hearsay
Each level of hearsay must be overcome in or
White’s concurrence)—if the non-movant has indicated that there are witnesses that support his claims, then the defendant must investigate those witnesses, e.g. depose them, before asserting that there is no evidence that creates a genuine dispute of material fact. Non movant will be unable to satisfy BOPT at trial.
Will-Call View
Nonmoving party may rely on inadmissible evidence IF:
i) Evidence would be reducible to admissible evidence at trial AND
ii) He can represent to the court he will in fact reduce the evidence to admissible form at trial
Applied in Celotex upon remand
Anderson v. Liberty Lobby – Only affects indirect evidence and whether or not an inference will pas under given standard of proof
Standard of proof for Motion for Summary Judgment/ Judgment as a Matter of Law
Standard of Proof for evaluating whether there is a Genuine Dispute for Summary Judgment is same as Standard of Proof at trial. Determining inferences permissibility is relevant to standard of proof
Implication: judges must hypothesize whether rznbl jury could find for nonmoving party
E.g. in Liberty Lobby, standard of proof at trial was clear and convincing evidence, so Judge needed to determine if a reasonable jury could find for the plaintiff by clear and convincing evidence at Summary Judgment stage. Not making the decisions themselves.
Problem – gets away from old standard of determining if prima facie case is met. Also, judge must weigh evidence in some way in determining if SJ should be awarded. But not in way that a jury would
Trial by Jury
Amendment VII
· “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved”
· No right to a jury trial in cases at equity in the federal court system
· Not incorporated into the 14th amendmentà not enforceable against the states
Curtis v. Loether
Sets out a standard for determining if an action is “at common law” and thus gets a jury
Curtis Test-A claim is an action at common law IF:
i) Legal Rights—claim is comparable or equivalent to an historical common law claim
ii) Legal Remedies—Plaintiff seeks damages as a remedy
Beacon Theatres
Deals with the way in which the merger of law and equity affects jury trial under 7th amendment
Court holds that when a case presents both legal and equitable claims, the legal claims must be tried first in order to preserve the Plaintiff’s right to a jury trial on those legal issues
After a jury has decided common issues, then Judge decides any remaining equitable issues himself
