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

Civil Procedure II – Outline

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

meets (c)(2); and party has notice of suit within time for service (120 days 4(m)); and D knew, should have known, that but for P’s mistake, he would have been D.
d) Rule 15(d) – supplemental pleadings regarding events after original filing
-if related, aids expeditious solution
-OK to cure defective pleading
-relation back – use 15(c) rules
-OK for defendants to use supplemental pleadings for counter-claims
6) Ensuring Truthful Allegations
a) Rule 23.1
-actions by shareholders that’s enforcement would effect other shareholders
b) Rule 11
-must have signature
-signature means
-you did a reasonable inquiry
-pleading not interposed for improper purpose (harass, delay, increase of cost)
-warranted by law, or by non-frivolous argument to reverse that law
-facts have or are likely to have evidentiary support (if defendant has most of knowledge you may not know or be able to learn before discovery)
-if not true
-court may sanction lawyer or firm
-how
-by motion (you then get 21 days to withdraw – safe harbor) – see Scalia p. 568
-judge sua sponte files order to show cause (usually if they rise to contempt)
-may sanction to deter 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