Civil Procedure
Fall 2013
Professor Juliano
PART 1
I. Pre-Trial
A. PLEADINGS
-Documents setting forth the allegations of fact constituting a claim to relief or a defense to that claim
1. The Complaint
-Currently using notice pleading/plausibility standard; Purpose of getting parties in the court
-In cases of heightened pleading, need a higher level of specificity – Rule 9
A) Claims for Relief: Rule 8(a)
-A pleading that states a claim for relief must contain:
-(a)(1) 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
-(a)(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
-(a)(3) a demand for the relief sought, which may include relief in the alternative or different types of relief
-Dioguardi v. Durning
-Standard: Notice and disclosure of claims for factual sufficiency
-Conley v. Gibson
-Standard: *Notice Pleading, Give defendant fair notice of claim and grounds upon which it rests; Do not dismiss unless plaintiff can prove no set of facts in support of the claim
-Bell Atlantic Corp. v. Twombly
-Standard: Must plead enough facts to show plausible grounds; Reasonable expectation that discovery will reveal evidence of; Increase in strictness of pleading from “notice” standard in Conley to plausibility standard
-Ashcroft v. Iqbal
-Standard: *Plausibility Standard in pleading; Court should draw on its common sense and judicial experience; Applies to all cases
-Swanson v. Citibank
-Standard: -Majority: Plausibility; Specific facts NOT necessary; NOT probability; Ask “could these things have happened, not did they happen”-Dissent (Posner): New regime; Plausibleà when are inferences plausible? Substantially justified.
B) Heightened Pleadings: Rule 9
-Rule 9(b) governs heightened pleading; the only areas requiring additional information are fraud and mistake. Heightened pleadings are required for these areas because of the number of cases brought in these areas and how lucrative these cases are. 9(c) and 9(g) request more detail
§ Rule 9(b): Pleading Special Matters – Fraud or Mistake; Conditions of Mind. “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
§ Rule 9(b): Special Damages – often applicable to torts cases, “If an item of special damage is claimed, it must be specifically stated.”
-Leatherman v. Tarrant County
-Procedural History: Complaint; Motion to dismiss; N.Dis.Court in Texas grants motion; 5th Cir. Affirms dismissal
-Standard: Rule(9)(b) Heightened Pleading not permissible for §1983 suits
2. Motions, Answers and Amendments
-To make a motion, use Rule 12. To answer, use Rule 8(b), (c) and (d), and to amend use Rule (15). P can amend the claim via Rule 15. D has two options when receiving a claim, governed by Rule 12 and Rule 8.
§ Option 1, Answer: Use 8(b) to craft answer; a general denial denies every allegation in the complaint (rarely used); specific denials will go line by line; if fail to deny, taken as conceded
§ Option 2, Motions listed in 12(b)(6): lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief can be granted; failure to join a party under Rule 19
A) Motions Responding to the Complaint: Rule 12
§ All pre-trial motions must be filed at the same time, and once one of these motions is filed, all other motions are implicitly waived.
§ The non-waivable motions can be made at any time, as they relate to the authority of the court: 12(b)(1), (6), (7).
§ (b)(6)- Dismissal for failure to state a legal claim.
-This motion is made when even if all facts alleged by the plaintiff are accepted as truth, there is no legal relief entitled to P. MOTION ONLY BY DEFENDANT
-All reasonable inferences are given to P
-All facts alleged by P assumed to be true
-*P cannot file this motion against D’s answer
§ (c) – Judgment on the pleadings, which carries the same standards as a 12(b)(6) except it will occur after the pleading and answer and MOTION ONLY BY PLAINTIFF
§ (e) – More definite statement; vague- MOTION ONLY BY DEFENDANT (except for reply)
§ (f) – Strike: *motion only limited to plaintiff when challenging legal sufficiency
§ 12(g) – Joining Motions
-*Important Elements in Rule 12 Motions:
§ Timing – must watch deadlines in 12(a)(1) that must be made with 21 days
§ Waiving – if miss deadline, may lose right to make the motion (may waive the motion) 12(h). Also impossible to lose right to challenge court on subject matter jurisdiction
-*Can raise 12(b)(6) and 12(b)(7) through trial;
-*Threshold Defenses (2)-(5) must ALL be included together in motion because will be found in discovery. Failing to include all four will result in defense being waived. However, if raised in Answer there is the ability to amend.
§ Consolidating –make motions all together upfront in a single motion or all together in the answer. Cannot put some in motion and others in the answer
B) The *Answer* and the Reply: Rule 8
-Answer must be in short and plain statements. Defendant has several options
-Answer: 1) Admit 2) Deny 3) Lack sufficient knowledge to admit or deny
§ General denial – entire complaint, 8(b)(3)
§ Specific denial – deny line by line, 8(b)(3)
§ Qualified denial – only part of an allegation, 8(b)(4)
§ Lack of knowledge – effect of a denial, 8(b)(5)
§ *Affirmative defenses – 8(c) –listed in rule (not exhaustive)
§ Failure to deny/Silence – acceptance under 8(b)(6)
§ *May also include 12(b) Defenses
C) Amended Pleadings: Rule 15
-Amendments allowed liberally so Ps can correct pleadings.
-Once discovery has closed, harder to amend. Rule 15 governs amendments and special pleadings. Can amend quite liberally. Can be implicit or explicit. Leave to amend
§ (a) – can amend 21 days after serving
§ (b) – can amend during trial by permission of the court (also room for implicit amendments. E.g., if P starts arguing strict liability and no one contests, c
obtainable from other source that is more convenient
§ party has already had ample opportunity to discover
§ burden or expense outweighs the benefit
-(b)(3) – Work Product
-(b)(4) – expert witnesses
-(b)(5)(A) – party withholding information on basis of privilege must “expressly make the claim” and “describe the nature of the documents, communications, or tangible things not produced or disclosed” –must do so in a manner that, without revealing the privileged information, enables other parties to asses claim.
-(c) – Protective Orders- prevent overly expensive/intrusive discovery;
-(c)(1) –to shield parties from embarrassment, annoyance, oppression, or undue burden/expense.
-Jones v. Clinton
-Objections to Interrogatories: Relevance; Overly broad; Burdensome; *Privacy; Office of the President (privilege)
-(d) –Timing and Sequence
-(e)(1)–Supplemental Disclosures
-required even if party does not request it; parties must police themselves to ensure that responses previously made have not become misleading or inaccurate as case unfolds.
-duty on responding party to correct any information provided in depositions and/or interrogatories
-(1)(A) –duty imposed only if party learns that in some material respect the disclosure/response is incomplete/incorrect.
-*does not need to be supplied if it was not requested previously, within initial disclosure or if party did not plan on using it in claim/defense.
-(g) – requirement to sign documents, result of failure to sign and sanctions
B) Work product doctrine: Rule 26(b)(3)
– Is a component under and protected by a/c privilege but broader than privilege.
-(b)(3)(A) –*Anticipation of litigation; Documents and tangible things
-Several exceptions – routine of business, substantial need
-Policy concerns – making lawyer a witness, protecting property, freeloading by opposing party, and revealing subjective theories etc.
§ “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)”
§ Protects items made for litigations; contrast with a/c privilege with is about communications made in connection with legal advice
§ Documents and tangible things – what about an attorney’s unrecorded recollection?
§ Anticipation of litigation – cannot be connected to specific claim, but made because of possible litigation regarding a certain event in general
§ Another party or its rep – doesn’t just apply to lawyers
