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

Civil Procedure II


Pleadings in General (claims and defenses) Rule 8(e)

Should be stated in simple, direct, and concise manner
Purpose: to give notice to opposing parties
Includes: Rule 7

i. Complaint
ii. Answer
iii. Reply to counter-claim
iv. Answer to cross-claim
v. Third-party complaint
vi. Third-party answer

Truthfulness: Rule 11

i. Requires pleadings, written motions, or other papers be signed by an attorney (or unrepresented party) to certifies to the pleading’s proper purpose and reasonable care in filing
1. If violated by other counsel
a. Must give everyone (serve) a copy of the sanctions
b. Safe-harbor: must then wait 21 days until after service before filing it with the court (a chance for the other council to withdrawal and resubmit papers to correct the mistakes)
c. Court can also declare a violation, sua sponte
2. Awarding Sanctions
a. Money can’t be awarded to a party as a sanction
b. Sanctions from the court’s initiative cannot award money, unless the court asks to show cause before a voluntary dismissal or settlement of the claims
c. The court must describe sanctionable conduct and the basis for the sanctions when imposing them
d. This Rule doesn’t apply to discovery

Complaint: Rule 8

a. A short and plain statement
1. Federal Rules: “Notice” Pleading Standard if the pleading notifies the adverse party of the claim and proposed relief sought
a. Issuable facts, essential material and ultimate facts the case is based on
2. States: “Fact” pleading standard which requires facts be plead to show the right to remedy
3. Facts or “evidence” pleaded in complaint cannot be too specific or too generic
4. When the evidence is unclear, it should be read to favor the plaintiff, thinking that he could provide evidence at trial to support the allegations
5. Twombly: must push complaint from “conceivable to plausible.”
a. Under this standard, if the court can’t make out a plausible claim “ on it’s 4 corners”. It will be dismissed under a 12 (b) 6 .
ii. Prayer for relief: asks for judgment for plaintiff
b. Each claim for relief must contain:
i. State grounds for jurisdiction
ii. Statement of the claim showing pleader is entitled to relief
1. Statement of facts constituting a cause of action
2. Can be plead in the alternative
3. Sometimes must be plead with specificity: Rule 9
a. Capacity to sue
b. Fraud or mistake
c. Condition precedent
d. Special Damages
e. Judgments
f. Official Documents
g. Material Facts of time or place
h. Certain aspects of admiralty and maritime jurisdiction
iii. Relief sought
1. Damages ($)
2. Interlocutory injunctions (see section)
3. Specific Performance
4. Special damages: unforeseeable or does not logically flow from the claimant must be stated specifically stated (ex: tort cases: pain and suffering are general damages; attorney fees, loss of wages) Rule 9(g)
5. 54(c): Default judgments can’t exceed amount prayed for in demand
iv. Alternative and inconsistent allegations
1. Alternative claims are acceptable
2. Plaintiff can properly allege facts based on inconsistent legal theories
3. Pleader can plead inconsistent versions of the facts
4. Plaintiff can plead one version of facts against one defendant and another version against another def
5. This enables a plaintiff to sue two parties if unsure who caused damage
6. Allows plaintiff to find out which party is the correct party during discovery [Rules 26-37]

C. Pre-Answer Motions: (application to the court for an order) Rule 12
a. Not responsive pleadings (important for amendment)
b. Prior to filing an answer (usually), the defendant may file a motion and raise any or all of the following defenses
i. Note: a motion is not a responsive pleading
c. Rule 12: Generally
i. Parties generally should assert defenses and objections in first responsive pleadings, but if done by earlier motion, must state all defenses and objections together
ii. Failure to assert defenses and objections, results in a waiver

Rule 12(b) Motions

i. 12b1: lacking SMJ
1. May be raised at any time, even on appeal
ii. Waived if not raised in pre-answer motion or with answer:
1. 12b2: lacking JOPOT
a. Must be raised with first motion or answer
2. 12b3: improper venue
a. Must be raised with first motion or answer
3. 12b4: insufficient process
a. Must be raised with first motion or answer
4. 12b5: insufficient service of process
a. Must be raised with first motion or answer
iii. 12 (b)(6):
1. To dismiss for failure to state a claim upon which relief can be granted
a. Not like 12(b)(6) and summary judgment because there is no “judgment” declaring a winner; the complaint is just dismissed
2. Dismissal with prejudice is rare
3. Based soley on the face of the complai

y: “not so” plaintiff has to prove averment at trial
i. You can deny even if you disagree with only one word of the averment
1. Specific: denies particular paragraph or portion of claim
2. Qualified general: denies all averments in complaint except certain averments
3. General: denies each and every averment of the pleading
c. Admit part, deny part
d. Without sufficient knowledge to respond
i. Defendant must conduct a reasonable investigation before responding in this way
ii. Effect is the same as denial
e. Want to specifically do both: admissions and denials
2. Failure to deny: constitutes an admission Rule 8(d)
ii. Affirmative defenses: Rule 8(c)
1. Must state all affirmative defenses in the claim or waived
2. Must be pleaded specifically
3. Puts the burden on the defendant to prove
4. Does not logically flow from plaintiff’s complaint
5. Include: “yes, but” and “no, and”
a. Statute of limitations
b. Statute of Frauds
c. Res judicata
d. Contributory negligence
e. Illegality
iii. Counterclaims

Reply: Rule 7

Reply by the plaintiff is required only where the defendant’s answer contains a counterclaim; or
Court may order a reply to an answer
Reply is not needed to an affirmative defense: it is assumed denied
Time: 20 days after service of answer or court order

Amendments and Supplemental Pleadings: Rule 15

Amendments (facts that occur prior to the complaint):

i. Can use for all pleadings, claims, and parties
ii. Before Trial: Rule 15(a)
1. Can be done once before a responsive pleading is filed
a. Remember: a motion is not a responsive pleading
2. When a response is not required, there is 20 days to amend
3. Otherwise a party must seek leave of court or permission of the opposing party to amend pleadings
a. Reason: amendment would usually moot that pleading and necessitate preparation and filing a new pleading