Select Page

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

CIVIL PROCEDURE II
Official Outline
Dean Pizzimenti
EDIT
I. CH. 8 MODERN PLEADING

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 (substantive law, facts of case an conclusion)
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

ß Not enough———————–given all ———————-too many factsà
Legal Conclusion.                    Ultimate Facts.                                     Evid Facts

Legal conclusion – only stating trespass etc.  not narrowing
Evid facts – tak abt real estate transact failed … but not say right to possession.
Ultimate facts – right to possession challenged.

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. (person possessing substantive right can only sue, ca assign it)
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.
Not enough                                                                                             More than enough
Possible                      Plausible                           Probable
ß————————————-I—-X———————————–à
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 (can be waived)
(3) improper venue (can be waived)
(4): insufficient process (can be waived)
(5) insufficient service of process (can be waived)
(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 mad

her have to ask the court or ask the other side.
1. Amendments 15(a) Before trial
a. Once “as a matter of course.” 15(a)(1)
1. 21 Days after serving it; OR
2. If responsive pleading required, may amend w/ 21 days after service of that pleading, or service of 12b,e,f, whichever earlier

b. Other Amendments 15(a)(2) – (after 21 days) In all other cases, a party may amend only with
1. Written consent of adverse party OR
2. Leave of Court
3. Leave freely given when justice requires
see Beeck: a court does not abuse its discretion by allowing an amendment to an answer which initially admitted responsibility for the manufacture of the product at issue but now seeks to deny manufacturing.
2. Conforming to evidence 15(b) During or after trial
1. Express Consent to amending
2. Implied Consent to amending
Moore: during paternity suit, P brought new issues such as child support into the suit, during trial defendant agued against the claims but did not object to their inclusion to the trial.
You need for implied consent to allow other party to amend:
1)       Notice
2)       Adequate opportunity to respond
3)       Failure to object to evidence directed at new matters, not the ones already in.

Time to respond—within time remaining to respond to original pleading or 14 days after service of amended pleading (15(a)(3).
3. To Conform to evidence
a. consent 15(b)(2)
b. If objected to 15(b)(1): may allow, shall freely do so if:
1. Presentation of merits served; and
2. Failure to show prejudice
3. May grant continuance
***At the end of the day, its better to let things in that clears things up. Juries don’t base things that is in the complaint. They decide things based on the evidence that they get. To try all the claims, get everything out. 15a and 15b makes it pretty easy to amend things.
3. Relation back 15© AFTER TRIAL
3 Requirements to amend AFTER TRIAL:
a. When permitted by law which provides S/L; ©(1)(A)
or
b. Claim or defense: arose from conduct, transaction or occurrence set forth in original pleading; c(1)(B) –doesn’t have to be all in one day, its from the same transaction or occurrence
c. Changing party: 15©(1)©Worthington 3 requirements for adding parties:
1. Claim defense meets ©(1)(B) [the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading] AND
2. Notice within time for service, (120 days 4(m)); AND
3. Party may be changed; Party may be added if:
i.         D knew, or should have known, that, but for P’s mistake (accusing wrong guy), would have been D. Can only add parties if by mistake.
o    However, in Worthington, there was no mistake, P just filed suit against unknown police officers=no mistake = no relating back. If D is aware of it, and thinks it’s just a mistake, no harm no foul.
ii.        The party has received notice of the action and will not be prejudiced by addition