Select Page

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

CIVIL PROCEDURE 2 OUTLINE

Adversary System-we have an adversary system
2 elements to this system:
*Party presentation—the parties choose which issues to present to the court. We don’t expect the court to intervene. The parties have a fair amount of control over which issues are presented to the court.
*Party Prosecution—means that if the parties don’t do anything, then nothing happens. The parties are responsible for taking the next step, whatever it is. Parties bear the burden of coming forward with evidence, etc.
-the goal of the procedural system is efficiency.

Introduction to Pleadings (P-complaint, D-answer)
-anatomy of a lawsuit=pleadings, then discovery, then end w/o trial, trial, etc
-Definition-the pleadings are a complaint and an answer. Exchanges of the parties versions of the facts.
-A complaint is a description of what happened.
-An answer is the defendants version of what happened including your response to the plaintiff’s version telling what parts are true and which part are untrue.
-The complaint and the office have very little to no law in them. They are just the parties factual contentions of what happened.
Functions:
-it certainly gives the parties notice of nature of claim, what issues may be, it tells you what the complaint against you is about, tells you when to respond or show up, gives you some clue as to what type of evidence you ought to be gathering.
-may get rid of hopelessly, faulty claim, or may show a valid cause of action.
-we might use the pleadings to narrow down the issues.
-we can bring in new legal theories as to why he may not be liable.
-give us a table of contents for a trial-tell us what’s going to happen at the trial.
-might be able to separate issues of law from issues of fact.
-sometimes are useful after the trial to tell us what was in fact decided for rac judicata purposes.

Basic Logic of Pleading:
Complaint-someone comes into court and say they want a relief against the defendant and want to recover for it.
D’s Response (D has 4 possible response):
-wrong court-sorry u brought this in wrong court.
-So What-so what even if everything you say is true you don’t win anything. (ex: stand someone up for dinner).
-Not true-I didn’t do it. It wasn’t me.
-Yes, but- yes I did it but I did it b/c you attacked me first.

The Complaint-Pleading Jurisdiction
-Rule 8(a)(1)-requires an affirmative pleading of general jurisdiction.
*We don’t have it in ohio laws b/c we don’t need it since it general jurisdiction and we assume it’s there unless it says it isn’t. In fed court of limited jurisdiction w assume it’s not there unless It says it is.
-This rule only speaks of subject matter jurisdiction. You have to affirmatively assert smj b/c the others are defenses that can be waived via 12g and 12h.
-How to Comply-Appendix of Forms
-rule 84-says the forms in the appendix are ok. You can file one of those. And the forms tell you what you have to do to allege jurisdiction.
Ex’s: “parties are citizens of different states.”-not sufficient b/c might be under the amount in controversy.
Ex’s: “D is citizen of MI and P is a resident of OH”—not sufficient b/c citizen and resident not the same.
Ex’s: “D is citizen of Mi an

acts that show entitlements under the substantive law. We want victory to go to the best prover, not the best pleader. The person with the best case who deserves to win is who we want to win. We want the P to recover base on under facts he can prove in trial judged under the appropriate substantive law standard.
-we prefer P’s side to recover on any theory, but we prefer D’s side when it comes to being able to prepare instead of being surprised, and we prefer that weaknesses be revealed sooner rather than later.
-from society’s point of view, we want to get 2 things out of the justice system: justice, low cost (efficiency).
Society’s View = We want the right result, we want justice, and efficiency (we want it cheap).

Detail Required (in pleading)Under Codes
-“Facts Constituting the C/A”
-Gillispie- the real function of detail?
Gillispie v. Goodyear Services Stores
-The Court says we want the complaint to let the D know what the case is about. This complaint didn’t do that even though it had legal conclusions in it. Court says it fails to state facts constituting a cause of action, even though the defendants knew what was going on, b/c the judge had no idea about what was going on.
Detail Required Under the FRCP-federal rules do have add’l rules for getting rid of crap cases so they can require less of the pleadings.