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Civil Procedure II
University of Toledo School of Law
Richman, William M.

Civ Pro II Outline — Spring 2009
NOTE: Specific language from the federal rules [or Richman’s paraphrasing of the specific language of the federal rules] are in bold
NOTE 2: The language of the rules may not be the entirety of the rule. But Richman said that we need to know only what he gives us in class vis-à-vis specific language. Mainly the purpose is to know how the rules operate.

The Complaint—Pleading jurisdiction

Rule 8(a)(1)

Says that the complaint is required to be precise and detailed with respect to jurisdiction because we assume there is no jurisdiction in federal court unless it is proven that there isàFederal courts are courts of limited jurisdiction.

Example: Insufficient to say “Parties are citizens of different states.” Would need to say “P is citizen of Ohio and D is a citizen of Michigan.”

Types of jurisdiction

Subject matter only. No requirement to plead

How to comply:

Appendix of formsàfollow form 7.

The complaint—The right to reliefàpleading the substance of the case.

Detail required: Theory

Pleader’s desire for generality.

Pleader wants to plead generalities for three related reasons

1) He doesn’t want to show his hand to the opponent. Pleading in too much detail shows his hand.
2) If he pleads too specifically he can plead his way OUT of a potential legal theory or cause of action. Pleading generally allows the widest range of possible legal theories to support the claim.

I.E. If he specifically pleads battery and shows negligence at trial, he can’t recover on negligence.

3) If he has a weak case, pleading generally allows him to potentially scare the other side into settlement.

Opponent’s desire for detail.

Opponent wants specifics because:

1) He can take specific facts and exploit themàbuild defenses around them
2) More chance for error in a detailed pleading
3) He wants to constrain the pleader’s theories as much as possible.

Court’s/society’s desire.

Court wants a proper, correct, just result for as little money as possible.

Pleading detail required under the codes

Required to plead “facts constituting the cause of action.”
GillispieàThe real function of detail

Court said that Gillispie pled law not facts.
She didn’t plead law, but she plead legal conclusions.
The rule “plead facts not law” had been extended to “don’t plead legal conclusions.”
If you plead legal conclusions [D is liable to P] you give D no notice.
So there was a reason, at the bottom, for not pleading law or legal conclusionsàgave D no notice.
BUT, “facts constituting cause of action” was taken far away from that basic reason and used to get rid of bad, fakeo claims, such as in Gillispie, where detailed fact pleadings got her crappy claim tossed.
Today, though, we don’t need to plead in great specificity to get fakeo claims tossed, because we have things like summary judgment motions to do that.

Pleading detail required under FRCP

Rule 8(a)(2)àrequires “a short, plain statement of the claim showing that the pleader is entitled to relief.”

This changed from “facts constituting a cause of action.”

What should a court do when the pleading is inadequate, as in Dioguardi, where the court dismissed for failing to state facts constitution a C/A?

Look for another cause of action that the claim may fit into.

Preview: FRCP don’t give the courts a comfortable way to deal with pro se litigant. See this throughout.

Pleadings: Rule 9àcontains many exceptions to rule 8(a)(2)

Rule 9(b) [first sentence]

Requirement: “fraud and mistake must be pled with particularity.”

Fraud and mistake give no notice.
Fraud and mistake are used to upset settled transactions

This rule should be read in concert with rule 8(a)(2). Thus, fraud should not be pled with too much detail.
How particularly should fraud and mistake be pled?

Form 13.

e pleadings are just fine. At common law, you’d need consistency.
Why? àWe want the person who’s right to win, not who has the best lawyer, so we let parties plead inconsistently, and let discovery and a jury decide what, if anything, the pleader is entitled to.

Rule 11

The problemàFRCP lenient. A pleader could misuse the liberality to keep information from opponent, pleading so generally as to disingenuously fail to reveal stuff she knew.

Rule 11 is a candor [truthfulness] requirement.

HistoryàThree incarnations of Rule 11.

1938: Didn’t really matter. Toothless. Not a lot of cases even dealt with it.
1983: Made it easy to get sanctions against a party who violated Rule 11. Violating atty. had to pay non-violating atty. So, there was an incentive to prove the other atty. lied. This produced multiple pieces of satellite litigation.
1993-present: Current rule. Rest of Rule 11 section of outline explains current rule.

To what does it apply?

11(a): pleadings, written motions, and other papers.

Doesn’t apply to discovery papers.
11(a) says attorney or pro se litigant must sign all of the above papers, and provide address, email addy., and phone #.

What does the signing mean?

11(b): You have to call “my bad.” You can’t later orally advocate a pleading that was appropriate when filed, but you now know to be incorrect.
Oral arguments: There’s no sanction for positions FIRST taken orally. Only for positions REATAINED after you know its not longer justified.

Certification of signature: 11(a)à 11(a) says what has to be signed [pleadings, written motions, other papers (but not discovery papers)]àrest of rule deals with the effect of the signature and sanctions for violating rule 11.

Rule 11(b)à “an attorney or unrepresented