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

Civil Procedure II Outline

I. Erie Doctrine
·         Erie R.R. v. Tompkins
o        There is no federal general common law
o        Federal courts do not have the power to determine substantive common law
o        In federal diversity cases substantive law is to be determined by state law and procedural law is to be determined by federal law
o        State statutes and state common law
·         Outcome determinative test (Guaranty Trust)
o        State law controls if the choice between state and federal law is outcome determinative
o        The outcome in federal court should be the same as it is in state court
o        Harsh test – almost always applied state law
·         Balancing Governmental Interest – Countervailing Interest (Byrd v. Blue Ridge)
o        Relaxes outcome determinative test
o        Assess the governmental interests behind the rules contending for application
·         Presumptive Validity – Hanna
o        Every rule would almost always effect the outcome
o        Redefine outcome determinative test to apply more narrowly to forum shopping
o         Federal procedure rules are not overridden by state law policy
o        Erie does not control where there is a valid federal rule
o        Forum Choice Determinative Test
§         Would procedural variations effect the choice of the forum
§         Discourage forum shopping
·         Erie Now
o        Substance v. Procedure test
§         Purely substantive apply state law
§         Purely procedural apply federal rules
o        Is the issue governed by a FRCP or other federal procedural statute?
§         If so, apply it.
o        If not, is the issue forum choice determinative?
§         If not, apply federal law.
o        If it is not governed by a FRCP, etc., and is forum choice determinative, balance the Erie policy of preventing federal court/state court forum shopping against the countervailing federal policy behind the federal common law rule on the issue.
II. Pleadings – General
·         General
o        Should be in a simple concise manner
o        The object is to notify the other party
o        Rule 7 – included are:
§         Complaint
§         Answer
§         Reply to counter-claim
§         Answer to cross-claim
§         Third-party complaint
§         Third-party answer
·         Rule 11 – Truthfulness
o        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
§         11(b) – can only violate rule 11 on oral argument by later advocating a pleading a pleading that does not pass the rule 11 standards, otherwise rule 11 cannot be violated in open court
o        Certification Requirements
§         There must be a reasonable inquiry to see if what is being plead is true
§         Must have evidence to back up the facts
·         Only care about what can be proved not what is true
·         Exception: if it can be shown that there will be evidence after a reasonable time for discovery has been given then OK
§         Must be warranted by law or a non-frivolous change in law
§         Cannot be filed for an improper purpose
·         Harass, embarrass, delay, increase cost
o        Violating Rule 11
§         Motion by opposing party
·         Must serve everyone with a copy
·         If motion for sanctions is served the opponent has 21 days to fix motion
·         Rather allow time to fix then engage in more litigation
§         Initiation by the Court
§         Court can order a party to show that conduct does not violate Rule 11
o       Awarding Sanctions
§         Mostly monetary – lawyer’s fees
§         Main goal is deterrence
§         Can impose just about any type of sanctions
III. The Complaint
·         Pleading Jurisdiction
o        Jurisdiction must be plead
o        Rule 8(a)(1) – Federal courts are courts of limited jurisdiction, assume jurisdiction is not there unless it is shown that there is –

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o        Usually done before the answer – D can raise some or all of the defense
o        Must state particular grounds and subject to Rule 11
o        All of the motions must be presented at the same time or they are waived
o        Rule 12 generally
§         Parties generally should assert defenses and objections in first responsive pleadings, but if done by earlier motion, must state all defenses and objections together
§         Failure to assert defenses and objections, results in a waiver
o        Waiving defenses
§         12(h)(1)                – omitting 12(b)(1) – (5) in first filing waives it
§         12(h)(2) – can submit 12(b)(6) – (7) up to or at trial
§         12(h)(3) – SMJ can be submitted at anytime
o        Logical Possibilities
§         Wrong court
·         12(b)(1) – (5)
§         Attacking legal Sufficiency
·         12(b)(6) – dismiss for a failure to state a claim
o        No winner, claim is just dismissed (different from summary judgment)
o        Based solely on the face of the complaint
o        Claim is dismissed if P can show any theory could be true and if any relief could be granted even if the wrong relief was plead
o        Cannot be dismissed based on a new legal theory
·         12(b)(7): Failure to join a party needed for adjudication (includes necessary and indispensable parties)
o        Before, with answer, with 12(c), or during trial
§         12(h) protects this
·         12(c) – when the moving party could win based on the pleadings
Motion for judgment on the merits as they appear in the pleadings – after pleadings are closed