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Civil Procedure I
University of Toledo School of Law
Pizzimenti, Lee Ann

Civil Procedure – Pizzimenti – Fall 2012

SECTION 1. THE COMPLAINT

Rule 8 – General Rules of Pleading

Rule 8(a): A claim for Relief

Claim must have:

1. Short and plain statement of (SMJ) jurisdiction

2. Short and plain statement of claim

3. Demand for relief

Rule 9 – Pleading Special Matters

Rule 9(b): Fraud or Mistake; Conditions of Mind

– A party must plead fraud and mistake with particularity, but may plead malice, intent, knowledge, and other conditions of a person’s mind generally.

o To ensure the claim is “responsible and supported, rather than defamatory and extortionate”

o Typically require: the “who, what, when, where, and how” of the alleged scheme

1) Time, place, and contents of the false representations or omissions

2) Identify of the person making the misrepresentations

3) How the misrepresentations misled the Plaintiff

4) What speaker gained from fraud

A. THE COMPLAINT

– In most jurisdictions, a civil action is commenced by filing a complaint

– Elements of the Complaint:

o Caption: The name of the parties, name of the court, etc.

o Jurisdictional Claim: What court this matter should be tried in.

o Facts: Facts supporting the cause of action

§ Code Pleading: “statement of the (ultimate) facts in the cause of action.”

§ Federal Rules: “short and plain statement of the claim showing that the plaintiff is entitled to relief”

§ Twombly/Iqbal

· Two step process to find plausible:

1. Separate legal conclusions, which are not entitled to presumption of truth; then

2. Review well pleaded factual allegations, assuming veracity, to determine whether plausible (i.e. more than conceivable, possible)

a. Context specific

b. Judges relies on experience, common sense

Old way: You can say “violation of Sherman act” with facts.

Now: You can’t make legal conclusions, you have to pull out the legal conclusions and using the rest of the facts, can to make more than a plausible case.

1. Facts merely consistent with liability are NOT ENOUGH.

o Damages: Damages sought in the case- 9(g) if want special damages, must state

o Prayer for Relief: Monetary amount sought by the plaintiff from the opposing party- 8(a)(3). In default can’t be awarded more than in prayer- 54(c)

o Signature: Indicates (by RULE 11) that:

§ To the best of pleader’s knowledge, there is or will be after discover sufficient evidence to support the claim.

§ The claims are warranted by existing law or are a good faith attempt to change the law

§ There is no improper purpose in bringing the complaint.

– Content

o Needs to be complete enough to survive RULE 12 motions

§ Rule 12(b)(6): Failure to state a claim

§ Rule 12(e): Motion for a more definite statement

§ Rule 12(f): Strike any and all redundant or impertinent

§ Rule 12©: judgment on pleadings- similar to summary judgment

– The Burden of Pleading: A pleaded complaint, generally, requires the same burden of production that a plaintiff would have in trial, including:

o Elements of the cause of action

o Responses to any affirmative defenses filed by the defense

– Exceptions:

o RULE 9(b): “In all averments of fraud and mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other conditions of the mind of a person must be averred generally.”

o “Heightened Pleading Requirements in Complex Cases”

§ Securities Fraud

§ Anti-Trust

§ Civil Rights Claims

§ R.I.C.O.

Practice Pointer: You don’t want to plead facts that put you in a box. You say “the roller coaster was going 5mph over the limit.” But what if an engineer later says it was 15 over?? Now you put yourself in a box.

Pleading Damages

–General damages may be pled generally

–When items of special damages are claimed, they shall be specifically stated. If not?

–You have to plead the special damages properly, unless otherwise you even get the opportunity to prove them.

a. Part of prima facie case: dismissed

b. Otherwise, won’t get damages.

I. General Damages: necessary, inevitable results of injury alleged in the petition. Zievogel. Natural, expected result of defendant’s conduct.

a. Expected, normal, common

b. Forseeable

II. Special damages: proximately caused by D’s conduct but not in ordinary case.

a. Not foreseeable; weird.

b. Punitive Damages are considered special damages.

III. Egs:

a. K: Lost bargain general. Lost profits? Are lost profits general or specific? Answer: if they are foreseeable, they are general. If you lose profits because of special circumstances, then they are special.

i. Ex: buying a yoyo that strings breaks in a championship, losing 100k – that is not foreseeable.

b. Torts: pain and suffering, lost wages, general; lost profits, special. Hospital and medical? Some say special. See form 11 ¶ 3 p. 1186

i. Just to be safe, plead them.

1. Prayer for Relief: 8(a)(3) page 269. Must include a demand for judgment for relief the plaintiff seeks.

a. Default judgment may not exceed ad damnum clause. 54©

b. Generally not otherwise limited to the amount of damages in clause. Bail

i. Plaintiff is limited to the amount of damages in the Complaint if there is a default judgment

ii. Unless there is prejudice, they are not going to care.

2. Serve the Complaint (summons)

Rule 4. Must:

1. Include seal of the court

2. ID Court and Parties

3. Name and Address of P’s attorney or P if none

4. Time to appear or receive judgment by default

5. Within 120 days of filing complaint or dismissed without prejudice (or ask court)

6. Don’t forget proof of service

B. RESPONDING TO THE COMPLAINT

12(a): When required, must respond within 21 days of the service of the complaint, cross claim, counter-claim, or order of the court

1) Responding by motion

a. 12(b) Motions

(1): lack of subject matter jurisdiction

(2): lack of personal jurisdiction

(3) improper venue

(4): insufficient process

(5) insufficient service of process

(6) failure to state a claim upon which relief can be granted;

(7) failure to join a party under rule 19

b. 12(e) motion for more definite statement

c. 12(f) motion to strike

d. 12© judgment on pleadings –after all pleadings have been filed; treated like 12(b)(6)

e. 12b6 –that complaint fails to state c/a

or 12c –no pleading states c/a–à if any of these motions are filed and anybody attaches anything, snipet from deposition, affidavit, the court will say that its not on the pleadings anymore, becomes SJ per rule 56

12(g) Joining Motions

1. Rule 12 motions may be joined 12(g)(1)

2. Other than (h)(2) 12b6 or rule 19, or h3 12c, no additional rule 12 motion raising a defense or objection available to party but omitted may be made.

a. Some cts won’t allow successive 12b6 motions, some do

b. If info becomes available later not prohibited from filing defense or objection.

c. E.g. response to amend complaint (only if info earlier unavailable)

i. Stop filing motion after motion after motion, combine them.

g. Effect of 12b6 or 12c motion: on the merits unless Judge indicates otherwise.

If your 12b6 motion is denied

What if 12b6 or 12c motion is granted? “decision on the merits”, unless the judge indicates otherwise.

– Why does this matter? Ex: the process is inefficient, venue is not right, the judge is not commenting on the merits of the case.

What is the effect of a decision on the merits? Res Adjudicata. This is a judgment on the merits. It means you can’t bring the lawsuit on the merits again.

What should you do as a Plaintiff, if the judge thinks the case is being dismissed under 12b6?

– Ask to dismiss without prejudice, “ask, is that motion dismissed without prejudice” if its not, everyone assumes the case is over.

o You have a right to amend if certain circumstances are true.

2) Responding with Answer

a. Admit

b. Deny (general or specific)

i. Anything not denied is admitted.

ii. Can have phrase “all denied unless admitted”

c. Wok

Answering the Complaint 8d

a. ADMIT. Affirmatively admit or fail to deny. 8d. Takes issue from fact finder and is conclusive at trial.

b. DENY.

i. General: Dangers: Rule 11,

1. Zielinski: a general denial will not be valid if any of the allegations being denied have been admitted by both parties as true.

ii. Better: specific. Admit part, deny part.

iii. Improper forms of denial

2. “wok (WithOut Knowledge)” when presumption within knowledge

a. If you say “I don’t know” when you do know, the court will deem you to have admitted. Ex: a company saying that they don’t know if they are a partnership or corporation or what. Its like c’mon, you know what you are.

3. Negative pregnant – a negative that implies an affirmative. Ex: P says to D, you ran over my brown cat. D responds, “your cat is not brown.” Ex 2: I don’t owe 89,000. Court says, ok, you owe 88,999.

a. What you should do: 1) we deny that we owe attorneys fees; 2) deny to owe 150

iv. Answering in alternative OK

c. “WOK” R Investigation necessary.

d. Affirmative Defenses: must be set forth in answer or D loses right to raise them. 8c (but amendments granted; see rule 15)

1. Compare denial:

Instead: “yes, but…”

Or “no, and…”

2. 8c examples…

“and any other matter constituting an avoidance or affirmative defense”

– 8c and including others.

3. Rule 9 examples: capacity, fraud, mistake, CP

4. Examples of cases:

b. Ingraham: an affirmative defense will not be saved for appeal unless raised at some point during the pleading or trial stage, before judgment is passed.

c. Its not just 8c, its not just rule 9—check your case law.

5. Other egs.: test:

C. REPLY

à Under the federal rules, further pleading is necessary after an answer only if the latter introduces a claim. Such a claim is tantamount to a complaint. Rule 7(a) therefore requires a reply to a counterclaim denominated as such and answers to all other claims included in the original answer.

Reply: 7a

i. Pleading: complaint, answer, reply to counterclaim (CC), answer to cross claim (XC), 3P

a sponte files order to show cause why rule not violated ©(3)

à this only happens if equally bad as contempt. Really bad!

c. If rule violated

i. Sanction, after notice and an opportunity to respond, ©(1), limited to what suffices to deter repetition of conduct (or conduct of those similarly stipulated. ©(4) e.g. so you could think as the judge, “how would I assure that other people won’t act like this in court?” By imposing severe sanctions.

ii. 28 U.S.C. 1927: may impose costs against attorneys vexatiously (causing annoyance) multiplying proceedings in bad faith.

a. nonmonetary directives (you can sanction not only the lawyer, but the law firm)

b. order to pay penalty court

c. If on motion and for deterrence, payment to movant of attorney’s fees and costs ( if by court, only if show cause order issued before dismissal or settlement ©(5))

d. State reasons ©(6)

1) Court says here are the violations with specificity

2) here are the sanctions I imposed to deter the behavior

Courts have the inherent power to sanction parties (Chambers) p.650

FRAP 38, 28 (don’t draft a frivolous appeal brief.. or you could get sanctioned)

II. CHAPTER 9 JOINDER OF CLAIMS AND PARTIES

A. JOINDER OF CLAIMS

II. Joinder of Claims and Parties

Joinder of Claims

1. Common law pleading – specific requirement

2. Code pleading: broader rules

a. Some states rule still divided up claims

b. Others required only that they arose form same transaction Harris p. 606

i. Harris: Why can’t you bring everything in one case instead of having two. We treat claims that rise under the same transaction nicely, whereas not under same transaction we do not.

c. Rule 18: Party may join as many claims as he has:

1. No limitations based on type of action or whether same transaction MK v. Tenet 608

2. Limit: subject matter jurisdiction (answer these two questions: 1331 federal question? 1332 diversity jurisdiction?)

3. Note possibility of separate trial. R 42 (If there is confusion.. separate trial can be made)

a. Under 18 you can bring any claim, cross claim, based on as many as you have. So there are no requirements

b. No requirement of same type of injury

c. No requirement to involve the same transaction or occurrence. There appears to be no limitation. As long as you have dragged somebody into court, bring the claims you want to bring. Get all the fights over with. BRING IT ON!!! Very broad.

i. The only limitation is whether there is Subject Matter Jurisdiction.

ii. Rules of Res Adjudicata says that if its related, bring the claim to avoid res adjudicata.

a. The goal of joinder is to resolve all the claims of all the parties to get everything resolved. à “Join everybody, claim everything”

b. Rule 42: the court can sever the claims if there is jury confusion. This doesn’t hurt the joinder rule because the lawyers can still do discovery at the same time.

Counterclaims (CC) (goes across the v.): Rule 13

1. Compulsory counterclaim: must state the CC, if at the time of service arises out of same transaction or occurrence that is subject matter of claim. 13(1)(A). So if same transaction or occurrence you must waive it up front, otherwise it’s waived.

a. Need bring a CC if it would require adding party over whom ct. can’t acquire jurisdiction 13(1)(B)

b. Need not if claim was subject of another action when action commenced; 13(2)(A) or

Ex: so if Tim sues Lee in state court for breach of warranty, Lee brings in federal ct. for Tim for not paying the contract. Tim doesn’t have to bring in that Counter Claim. (D files a claim…then P files another claim..D need not counter claim what they brought in the first court.)

c. Need not if party who brought suit in a way that didn’t acquire personal jurisdiction (e.g. attachment) and other party doesn’t state any CC. (Don’t need to know)

d. Effect if compulsory CC not raised: ITS WAIVED.

–There is supplemental jurisdiction over claims that don’t have jurisdiction under 1331 and 1332.

e. Test for “transaction or occurrence” IF transaction or occurrence its compulsory counterclaim, if not, its permissive counterclaim (13b).

1. Heywood: if there is a logical relationship between claim and CC.