Civil Procedure
Pursley
Fall 2011
I. Modern Pleading
A) Complaint
1) must include – Rule 8(a)
-caption (name of court, title, etc.)
-short plain statement on grounds of jurisdiction
-short plain statement showing entitlement to relief
-notice pleading
2) other things that should be done
-number paragraphs
-use standard forms when possible
3) Alternative and Inconsistent allegations
-they are OK
4) Heightened Pleading – Rule 9(b)
-only necessary in instances of fraud or mistake (or other complex cases)
4) Special Damages – Rule 9(g)
-if it is not a necessary or inevitable result of injury, it is a special damage.
or …(special damages are) proximately caused by D’s conduct, but not ordinary result.
5) ad damnum clause – Rule 54(c)
-other than default judgment case ad damnum not a limit
(if you don’t show up amount prayed for is limit)
6) Serving of the Complaint – Rule 4
1) include seal of court
2) ID court and parties
3) name and address of P’s attorney (if none address of P)
4) time to appear or of judgment by default
5) within 120 days of filing complaint or dismissed without prejudice
6) don’t forget proof of service
B) Responding to Complaint
**basically two options – answer or file motion
1) initial concerns
a) Rule 12(a) – may file answer or motion within 20 days of service of summons
b) party may ask for more time (should be given)
2) Responding by motion
a) Rule 12(b) following motions may at option of pleader be made by motion
1) lack of SMJ – never waived 12(h)(3)
2) lack of personal jurisdiction
3) improper venue
4) insufficiency of process
5) insufficiency of service of process
Rule 12(h)(1) – if 2-5 not raised in first response they are seen as waived
b) Rule 12(b)(6) motion to dismiss
-failure to state a claim – may be raised in any pleading permitted or ordered 7(a), by motion for judgment on the pleadings, or a trial on the merits. 12(h)(2) same rule for failure to join an indispensable party under Rule 19
c) other possible motions of response
-12(e) for more definite statement
-12(f) to strike
-12(c) judgment on the pleadings
d) After all Pleadings have been filed motions treated as
-12(b)(6) or 12(c)
3) Responding with Answer – you either decided not to file by motion or it was denied
Note: you don’t have to file an answer until decision on motion (since you have already been in front of court – you and judge might pick a date when due).
a) Admit
-come out and say it, or failure to deny (this has effect of removing this evidence from fact finder – instead it is stated as fact)
b) Deny
1) general denials dangerous – Rule 11
-court may deem admitted if you mistakenly generally deny large section
2) specific denial – deny in part, admit in part…
-this is more safe and advised method
3) improper denials
-without knowledge (don’t use this if it is something you can find out or should know)
-negative pregnant – you owe me 50 bucks, I deny I owe you 50 bucks – this is basically an admission that you do owe some money and courts will take it as such
c) Rule 8(c) – Affirmative defenses
-must be set forth in answer or D loses right to raise them
4) Reply – Rule 7(a)
a) there shall be a complaint, answer, and reply to counterclaim, third party complaint, or cross-claim
5) Amendments – Rule 15
Note: courts generally pretty lenient, usually allowing unless good reason for
otherwise
a) Rule 15(a) – once as right or by leave
-may amend once (as a right)… before responsive pleading filed, or if no responsive pleading permitted before put on trial calendar within 20 days after served
on responsive pleading… always OK before 12b motion
after there is split – some courts (only if court explicitly gives permission to amend), other courts (always one bite), still others say sometimes (in some circumstances you cannot)
-may amend by leave… of court or written consent of other party or by leave freely given if justice requires, unless bad faith, undue delay
after an amended pleading a response shall be entered within time remaining for response to original, or within 10 days (whichever is longer), unless the court otherwise orders
b) Rule 15(b) – conform to evid
ter repetition; to court or attorney fees
-doesn’t apply to discovery
II. Joinder of Claims and Parties
A) Joinder of Claims – Rule 18
-no limits based on type of action or whether same transaction
-limit: claims must have subject matter jurisdiction
B) Addition of Claims
1) Counterclaims (hereinafter CC) – against someone on opposite side of v.
a) Compulsory CC – Rule 13(a)
shall state claim if out of same transaction, and 3rd party does not destroy
jurisdiction, but not compulsory if already started and pending, or
brought in way opposing party brought suit upon claim which court did not acquire jurisdiction
***Test for Rule 13(a) whether they comprise same transaction
-issues of fact and law raised by claim and counterclaim largely the same
-would res judicata bar subsequent suit
-will same evidence support or refute plaintiff’s claim as well as defendants counterclaim
-is there a logical relation between the claim and counterclaim
*** if compulsory CC not raised
-court will view as waived
-or estopped per res judicata
b) Permissive CC – Rule 13(b)
-not arising out of transaction or occurrence
-uses Rule 18
-must be independent basis for jurisdiction
-may order separate trial to avoid confusion or prejudice
Other notes on Rule 13
(c) ok for claim to be opposing damages
(d) same law as to when government has immunity
(e) if arises after pleading, use supplemental pleading subject to permission of court
(f) can set up by amendment if oversight or neglect, with court grant as justice requires
(g) cross-claim – any claim against co-party arising out of transaction or occurrence
(h) additional parties may be added – Rule 19 and 20
(i) if court orders separate trial may have judgment on that claim
