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

Civil Pro II – Rules Outline Know joinder rules, 8a2, 12b motion, 12, 14, 56

Ø Rule 1 à Scope and Purpose of Rules
o Rules shall be construed and administrated to secure the just, speedy, and inexpensive determination of every action.

Ø Rule 2 à One Form of Action
o “There shall be one form of action to be known as “civil action”
§ Courts of law and equity are combined.

Ø Rule 7 à Pleadings Allowed; Form of Motions
o (a) Pleadings
§ Creates:
· Complaint and Answer
· Reply and Counterclaim
§ No other pleading allowed à except as to answer 3rd party answer
o (b) Motions and Other Paper
§ All applications to the court for an order must be made by motion UNLESS made during hearing or trial
· Motion must:
o be in writing,
o state with particularity the reasons/grounds for the motion, AND
o state the relief or order sought

Ø Rule 8 à General Pleading Rules
o (a) Claims for Relief:
Three essential elements of a complaint:
1) Jurisdiction: Short and plain statement of the grounds upon which jurisdiction depends, unless no new jurisdiction is needed, or the court already has jurisdicition.
2) Statement of the claim: Claim showing that pleader is entitled to relief.
3) Demand for relief: Demand for judgment (injunction and damages)
read in conjunction w/ Rule 54(c)
o Default judgment award can NOT exceed what ¶’s originally pleads. (injunction or relief)
o (b)Defenses à Forms of Denial (No Denial=Admission)
§ Δ must state “in a short plain statement”:
1) State all defenses to ¶’s claims
2) ∆ must Admit or Deny averments made by ¶ OR state that you are without significant knowledge to form a belief (Lack of knowledge is essentially a denial)
§ Δ must deny claims w/ specificity
1) Must admit to portions that are true (Δ can make a “general denial” à if in good faith
2) If Δ makes a “general denial” w/out good faith à subject to Rule 11 sanctions
o (c) Affirmative Defenses
§ Δ must plead all affirmative defenses of:
1) accord & satisfaction, arbitration & award, assumptions of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting avoidance or affirmative defense
§ If Δ improperly pleads a defense as a counter-claim à court will treat pleading as proper if justice so requires
o (d)Effect of Failure to Deny (Very Important)
§ If Δ does not respond to ¶’s averments that require a response à Treated as: Admitted when NOT Denied. (Response Required=admitted if not denied)
§ If Δ does not respond to ¶’s averments that do not require response à Treated as: Denied or Avoided (Response not required=denied)
o (e)Pleading to be Concise and Direct
§ (1) Averments must be simple, concise, and direct
(2)Takes the weight off the pleading and onto the proof at trial.
–Alternative Pleading: either the ∏ ran me down or his servant ran me down
–Hypothetical Pleading: even if I did…
–Inconsistent Pleading: I hit the truck while I was drunk. I did not hit the truck while I was drunk.
∏ should be able to plead these three ways because we don’t want chooses made to early that will restrict her ability to prove in court.
o (f)Construction of Pleadings
§ Purpose: All pleadings shall be so construed to do substantial justice (want facts to be decided at trial, not in pleadings)

Ø Rule 9 à Special Pleading Matters
Must be pleaded w/ particularity if they are to be raised at trial. They apply to the answer as well as the complaint.
A) Denial of a party’s legal capacity to sue or be sued.
B) Circumstances giving rise to any allegation of fraud or mistake.
C) Any denial of performances or occurrence of a condition precedent.
D) Existence of judgments or official documents on which the pleader plans to rely.
E) Material facts of time and place
F) Special damages
If the ∏ does not plead any “special damages” but proves the special damages the ∏ most likely will not be able to
recover the “special damages” since he did not plead them in his complaint.

Pead fraud, mistake and condition of mind = particularity (∆ lawyers)
Plead malice, intent, knowledge, and other states of mind generally

Ø Rule 11 à Sanctions
Rule 11 applies to
A) 1) Every pleading
2) written motion, and other
3) paper shall be signed by at least one attorney of record in the attorney’s individual name.
i. Rule 11 does not apply to oral arguments first made, because you
may not be sure what you are arguing is correct and may need to do
ii. Rule 11 does apply to oral arguments if you have already made a
pleading or motion in writing and then advocate it orally.
Certification of signature:
A) The attorney is certifying that to the best of the person’s
knowledge, information, and belief formed after an inquiry reasonable under
the circumstances.
B) Make a certification on the facts, law, and motive of the pleader.

Facts: Rule 11(b)(3):
A) Allegations and factual contentions have evidentiary support or are likely to have evidentiary support after further
investigation or discovery.
B) Can plead something that you don’t have evidentiary support for, but must specifically identify what pleadings you can prove
w/ more discovery and investigation.
C) To satisfy reasonable inquiry under the circumstances w/ the facts the lawyer has to look at any records that are easily
available, talk to your client about what happened, talk to any witnesses, look at the documents.

Rule 11(b)(2) Law: Claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

Rule 11(b)(1) Improper Motive: A proper purpose to file a pleading, motion, or paper is to win the lawsuit. An improper purpose is to file an injunction to embarrass or harass.

Discretionary via ju

g party.

Relationship between 12(f) 12(b)(6) and 12(c) (Know this for sure)
Attach whole of complaint use: 12(b)(6) or 12(c)
Attack part of complaint use: Partial 12(b)(6) or 12(c)
Attack whole of answer use: 12(c)
Attack part of answer use: 12(f)

Rule 12(e) Motion for a More Definite Statement:
Complaint is vague and ambiguous=∆ files because it is hard to give an answer, but may just wait for discovery.

Ø Rule 15 à Amended & Supplemental Pleadings
o (a) Amendments
§ ∏ may amend his pleading once as a matter of course before the answer is filed.
§ ∆ may amend his pleading once as a matter of course if it is done so within 20 days of filing the answer.
§ Otherwise parties can only amend pleadings by leave of court (w/ permission of the court) when ever justice so requires
1) Opposing parties then have 10 days to respond to the amended pleading.
o (b) Amendments to Conform to Evidence
o If opponent objects at trial to proof not made in the pleadings, the court may allow the non-objecting party to amend the pleading, and will allow the objecting party to have a continuance.
1) Amendment will not be granted if opposing party proves this will prejudice its case
2) Leave will be freely given to amend when justice so requires.

o If evidence is explicitly consented to then there is no problem.

o (c) Relation Back of Amendments
§ There are three times when a party an pleading can be amended and relate back to the original pleading:
1) Statute of limitations is applicable.
2) The amended claim or defense arose out of the conduct, transaction, or occurrence that was at issue in the original pleading, (File for assault, but not battery, can amend to have battery in the complaint)
3) The names of the parties to the action are changed.
The amendment must come within 120 days of the filing of the original complaint or in the time required by the statute of limitations.
o the new party must such notice of the original action and will not be prejudiced by the amendment OR
o the new party knew or should have known of the original action and but for a mistake, the new party would have been sued.
o (d) Supplemental Pleadings: Must have leave of court to give a supplemental pleading.
§ Parties may file a motion to serve supplemental pleadings upon the opposing side IF:
1) Events occur after the original pleadings
2) Reasonable notice is given
3) No prejudice to other party.