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Civil Procedure II
University of Toledo School of Law
Klein, James M.

Civil Pro II – Rules 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
o   Rules govern all civil suits (both legal and 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 must:
o    be in writing,
o    state with particularity the reasons/grounds for the motion, AND
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
§ Δmust state ALL defenses to ¶’s claims “in a short plain statement”:
·         All defenses NOT plead will be waived (but Δ can amend pleadings)
§ Admit or Deny averments made by ¶; OR
·         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, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting avoidance or affirmative defense
·         Δ has burden of pleading affirmative defense (burden of proof)
o   Burden of Pleading Determined BY:
§ Fairness
·          Who has access to information?
Ø Ex. ¶ sues Δ for debt, Δ denies; Δ has access to the proof that he’s paid. This is why payment is an affirmative defense
§ Probability
·          If improbable à plead specially
Ø Ex: If contributory negligence is 10% à make Δ plead instead of making ¶ plead
§ Policy
·          Make the person that pleads the unpopular thing (against public policy) plead
Ø e.g. “the child is illegitimate…”
Ø We want some things to be true and others not. So if someone pleads that a child is illegitimate we want to impose that pleading burden on them.
o   Burden of Pleading v. Burden of Proof:
§ Burden of Pleading à if diversity case, determined by Federal Rules
§ Burden of Proof à if diversity case, controlled by state law
§ Litigant that has Burden of Proof also typically has burden of pleading that element for which he has proof
·          Ex: duty, breach, causation, damages,  Factors usually balance the same way
§ If Δ improperly pleads a defense as a counter-claim à court will treat pleading as proper if justice so requires
§ Non-pleaded defenses are waived (but can be amended later)
o   (d)Effect of Denials
§ If Δ does not respond to ¶’s averments that require a response à Treated as: Admitted when NOT Denied
·         Ineffective denials = Admitted
§ If Δ does not respond to ¶’s averments that do 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 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:

o remedy à court MAY (discretionary) impose sanctions upon attorneys, law firms, and the parties
·         (1)(A) By Motion: Moving party can file a separate motion to court AFTER 21 days of the non-moving party’s submission of some violation
o   Must allow the other party 21 days to withdraw or correct
·         (1)(B) By Court: Judge can issue an order describing the alleged bad conduct and the (party, firm, attorney) must then show cause or be sanctioned 
·         (2) Nature of Sanctions: Sanctions imposed are limited to what is sufficient to deter the conduct  
o   Sanctions include:
§ monetary penalty to court
§ monetary penalty to opposing party
§ publishing name in paper
§ informing legal associates of actions
§ informing local Bar Association
o   Who can be Sanctioned:
§ Attorney who signed filing
§ Law Firm
§ Pro Se party
§ Represented party (usually not)
o   Initiated by:
§ Court
§ Motion
o   Satellite Litigation
§ Formally, Rule 11 sanctions caused too much satellite litigation à so rules were made to be more liberally construed to prevent misuse
Ø Rule 12 à Defenses & Objections: when and how presented
o   (a) When Presented
§ Δ must serve answer & (if any) counter-claim or cross-claim w/in 20 days after being served w/ summons and complaint
·         if waived service of process à w/in 60 days of sending waiver or 90 days if outside U.S.
§ Parties have 20 days to respond to responsive pleadings
·         ¶ must serve reply to counter-claim & any affirmative defenses w/in 20 days of being served w/ Δ’s answer
·         If Δ or ¶ file a motion for “more definite statement” parties have 10 days after court order whether  granted or denied
o   (b) How Presented
§ All defenses must be served in the responsive pleading EXCEPT: 
·         Can be made by motion or in answer à
o   (1) lack of SMJ
o   (2) lack of JOPOT
o   (3) improper Venue
o   (4) insufficient Process
o   (5) insufficient Service of Process
o   (6) failure to State a Claim
o   (7) failure to Join Party
·         No defense is waived if accompanied by other defenses in a responsive pleading or motion
Must make all 12(b) motions at same time or they are wa