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

The complaint – pleading jurisdiction

Rule 8(a)(1): a pleading stating a claim for relief must contain a short and plain statement of the grounds for the court’s jurisdiction unless the court already has jurisdiction and the claim needs no new jurisdictional support
Types of jurisdiction: this rule applies to subject matter jurisdiction which is required because federal courts are courts of limited jurisdiction

i. Personal jurisdiction is a defense waivable by a defending party
ii. Pleading for claim to relief need not include allegations on venue because a defending party must make a timely objection to have the defense considered

How to comply:

The complaint – the right to relief

Detail required (theory)

i. Pleader’s desire for generality: plaintiff can recover under multiple theories and retains an element of surprise. Proof will remain a surprise – defendant’s provision of counter proof will be more difficult, hindering D’s ability to prepare his defense. Defects in the complaint will appear later as opposed to sooner, making a more expensive defense for D
ii. Opponent’s desire for detail: D wants P’s recovery to be limited to what has been pleaded
iii. Society’s view: victory should go to the one who proves the best under the substantive law at trial, not the best pleader. Favors generalized pleading. Truth/recovery should be decided by evidence not the complaint

Detail required under the codes

i. Facts constituting the cause of action: plain and simple facts constituting a cause of action
ii. The real function of detail (Gillispie): pleading legal conclusions is not acceptable under the code standard

Detail required under the FRCP

i. Rule 8(a)(2): a pleading that states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief
ii. Dioguardi: ambiguous complaints are not ok
iii. Lessons from Dioguardi:

Rule 9

Rule 9(b): in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, and other conditions of a person’s mind may be alleged generally

i. Requirement: conclusory allegations of fraud are not permissible. They may not be made on information and belief, unless the facts constituting fraud are particularly within the adverse party’s knowledge or are otherwise inaccessible to the pleader
ii. Reasons and history
1. protect a defending party’s reputation from harm
2. minimize strike suits
3. provide detailed notice of a fraud claim to a defending party
4. discourages meritless fraud accusations that can do serious damage to the goodwill of a business person
iii. How particular? (Form 13) depending on the facts of the case, circumstances constituting fraud usually requires the claimant to allege
1. the identity of the person who made the fraudulent statement
2. the time of the misrepresentation
3. the place of the misrepresentation
4. the content of the misrepresentation
5. the method by which the representation was communicated
6. the persons or entities to whom the misrepresentation was communicated, and
7. the injury resulting from the reliance on the misrepresentation
iv. Swierkiewicz: prima facia case is an evidentiary standard not for complaints. This can be shown at trial so facts do not need to be included in the complaint, rule 9b was not extended in this case
v. Conditions of mind: a pleader cannot be expected to know the adverse party’s state of mind. A court may still grant a 12(e) motion for a more definite statement

Rule 9(c): in pleading conditions precedent it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed a party must do so with particularity

i. Conditions precedent: 2 standards
1. a general allegation of the performance or occurrence of a condition is typically quite brief, such as “all conditions precedent have occurred or been performed”
2. a party denying a condition precedent has occurred must do so with particularity (as in insurance claims)
ii. Conditions subsequent: this does not apply to conditions subsequent
iii. Scope and effect of the rule: failure of a defending party to raise the issue of nonperformance or nonoccurrence of a condition precedent in a timely manner may result in a waiver of the defense
iv. D’s response: defendant must plead which conditions haven’t been performed

Rule 9(f): an allegation of time or place is material when testing the sufficiency of an allegation
Rule 8(d)(2): a party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient

i. Rule: establishes the basic requirements for pleadings in all federal civil actions, whether the pleading affirmatively states a claim for relief or a response to a claim for relief
ii. Reasons: a party may not know all the circumstances surrounding the events being pleaded. They may know more after discovery

Rule 11

Problem: with the alternative and inconsistent allegation permitted by 8(d)(2) how does one ensure that pleadings remain candid?

i. 1938: rule did not originally have the deterrent effect expected. There was confusion as to
1. circumst

3. Improper motive: an attorney may be sanctioned for harassment, delay, or needless increase in the cost of litigation, although this list is not inclusive
a. Forum shopping is ok
b. Generating adverse publicity is ok, as long as it is not a frivolous claim
c. Courts are split on whether sanctions may be imposed for filing a well founded document for an improper purpose
iii. Sanctions Rule 11(c)
1. Mandatory or discretionary: when a court determines that Rule 11(b) has been violated, it may but is not required to impose a sanction. Determination as to the type of sanction is also discretionary, limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated
2. Types
a. Monetary: monetary sanctions may be imposed but they must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated
b. Non monetary: appropriate sanctions are at the discretion of the court, including
i. Striking of offending paper
ii. Issuing an admonition
iii. Requiring attendance of educational programs (CLE)
iv. Referring the matter to disciplinary authorities
c. Costs: if warranted for effective deterrence sanctions may require all or part of the attorney costs associated with the Rule 11 violation
3. Severity: sanctions should be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated
4. Monetary: a court may not impose monetary sanctions on a represented party for a violation of Rule 11(b)(2)
5. Who can be sanctioned
a. Attorneys: an attorney who violates Rule 11 may be sanctioned, but sanctions may not be awarded to a client against his own attorney for breach of duty to the client
i. Attorney may be sanctioned whether or not he remains the attorney of record
ii. Lack of experience or knowledge does not reduce liability
iii. Court may order an attorney to bear the cost personally and not be reimbursed or indemnified
b. Law firms: law firm should be held jointly liable when as a result of a motion for sanctions, an employee of the firm is determined to have violated Rule 11
c. Parties:
Represented by counsel: a represented party who is responsible for a Rule 11 violation