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

Civil Pro II – Outline

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
§         pleadings are construed liberally to do substantial justice à emphasize substance, deemphasize procedure
o        Rules govern all civil suits (both legal + equity) w/ exceptions of Rule 81

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 is 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 mustà
o         be in writing,
o         state with particularity the reasons/grounds for the motion
o         state the relief or order sought
o        (c) Demurrers, Pleas; Abolished
§         Demurrers, pleas and exceptions are abolished

Ø      Rule 8 à General Pleading Rules
o        (a) Claims for Relief
§         (1) All claim pleadings for relief (original, cross-claims, counter-claims, 3rd party claims) shall contain à
·          “a short plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction or the claim needs no new grounds for jurisdiction,”
o         Jurisdiction
o         b/c federal courts are of limited jurisdiction (refers only to SMJ)
§         (2) “a short and plain statement of the claim showing that the pleader is entitled to relief,”
o         Facts
§         (3) “a demand for judgment for the relief the pleader seeks”
o         Relief
·          Rule 54(c)
o         NOT limited in your relief by what you ask for if you show in trial that you are entitled to something else OR something more
§          but default judgment award can NOT exceed what ¶’s originally pleads
o        (b)Defenses à Forms of Denial
§         Δ must state ALL defenses to ¶’s claims “in a short plain statement”:
·          = All defenses NOT plead will be waived (but Δ can amend pleadings)
·          Must:
o         Admit or Deny averments made by ¶
o         if w/out knowledge of averment à state “without sufficient knowledge to form a belief”
§          = Denial
§         Δ must deny claims w/ specificity
·          Must admit to portions that are true (Δ can make a “general denial” à if in good faith
·          If Δ makes a “general denial” w/out good faith à subject to Rule 11 sanctions
§         Three Options for Denialà
·          Admit or deny sentence by sentence
·          ID the ones you admit and deny the remainder
·          ID the ones you deny and admit the remainder
o        (c) Affirmative Defenses
§         Δ must plead all affirmative defenses of:
·          accord & satisfaction, arbitration & award, assumptions of risk, cont

o NOT require response à Treated as: Denied OR Avoided
§         If Δ says he “lacks information to establish a belief” à Treated as: Denied OR Avoided
·          Limitations:
o         Can NOT say that you lack knowledge of things you actually know or should know OR things in public record
o         Also limited by Rule 15
o        (e)Pleading to be Concise and Direct
§         Averments (alleged facts) must be simple, concise, and direct
§         Parties can plead statements that are hypothetical OR inconsistent of each other as long as one made independently would be sufficient
·          Parties can state as many claims or defenses, irregardless of consistency
o         but may be subject to Rule 11 sanctions
o        (f)Construction of Pleadings
§         Purpose: 
·          All pleadings shall be liberally construed to do substantial justice (want facts to be decided at trial, not in pleadings)
o        Policy Arguments:
§         ¶ à “generality” (want to recover based on facts at trial)
§         Δà “detailed” (want ¶ to state what he claims)
§         Society à want administrative efficiency v. substantive justice
·          Prefer to NOT allow cases to increase settlement value à don’t want case to hang around system for to long (side w/ Δ)