Civil Procedure Outline
(Fall 2008)
I. The Complaint
A. Rule 8(a) – Three required elements:
1. Short & Plain Statement of Jurisdiction
2. Short & Plain Statement of Claim
a. Factually Sufficient
i. Notice pleading – the goal of the complaint is to put the other side on notice of the case. A claimant is not required to set out in detail the facts upon which he bases his claim. (Conley v. Gibson)
ii. Heightened pleading requirements – applies to cases specified in Rule 9 (Leatherman v. Tarrant County)
(a) Rule 9(a): Capacity to be sued
(b) Rule 9(b): Allegations of fraud or mistake
(c) Rule 9(c): Denial of performance of occurrence
(d) Rule 9(g): Special damages
iii.However, where discovery would be very expensive (such as in an anti-trust case), claimant may be required to show, with some specificity, the facts upon which his allegations rest. (Bell Atlantic Corp. v. Trombly)
iv.Claimants should avoid pleading more than they are required to. They may end up exposing a flaw in their claim (making it unactionable) and plead themselves out of court. (American Nurses’ Assn. v. Illinois)
v. Inconsistent facts may be pleaded where there is a genuine doubt as to what the facts are and what the evidence will show.
b. Legally Sufficient – (Rule 12(b)(6) motion to dismiss for legal insufficiency)
i. Burden of pleading – an allegation is required for each element of the claim (Gomez v. Toledo)
ii. Each count in the complaint is judged independently and a claimant may plead conflicting legal theories. (McCormick v. Kopmann)
iii.Burden of proof – the party who pleads something has the burden of proving it
3. Demand for Relief
II. Dismissals
A. Voluntary Dismissals – Rule 41(a)
1. Rule 41(a)(1) – Plaintiff can withdraw their claim before defendant has filed their answer (or a motion for summary judgment) [Notice of Dismissal]. Plaintiff may withdraw after defendant has answered with the approval of all parties who have appeared in the suit. [Stipulation of the Parties]
a. Notice is allowed once without prejudice.
i. If claim was previously dismissed, the second time is with prejudice.
b. Stipulation is allowed once w/o prejudice (unless otherwise specified).
2. Rule 41(a)(2) – Other than above, court permission is required.
a. Without prejudice unless otherwise specified.
b. If defendant has pleaded a counterclaim, the plaintiff’s action may only be dismissed over defendant’s objection if the counterclaim can remain pending for independent adjudication.
B. Involuntary Dismissals – Rule 41(b)
1. Done with prejudice (unless dismissal order states otherwise) either at defendant’s request, or at court’s judgment. (Link v. Wabash R. Co.)
III. Defendant’s Motions
A. Defenses
1. Defenses that must be filed before the answer is filed. Grouped under Rule 12(g). Once a motion or answer is filed, they are waived if not included, under Rule 12(h).
a. Rule 12(b)(2): Lack of jurisdiction over the person
b. Rule 12(b)(3): Improper venue
c. Rule 12(b)(4): Insufficient process
d. Rule 12(b)(5): Insufficient service of process
2. Defenses that can be filed in a motion, in the answer, or at trial (cannot be introduced on appeal)
a. Rule 12(b)(6): Failure to state a claim on which relief can be granted
b. Rule 12(b)(7): Failure to join a party under Rule 19
c. Rule 12(b)(1): Lack of subject matter jurisdiction
B. Other Motions
1. Judgment on the Pleadings (Rule 12(c))
a. After pleadings are closed, but before trial
2. Hearings Before Trial (Rule 12(i))
a. Rule 12(b) defenses (whether stated in pleadings or a motion) and Rule 12(c) motions [motion for judgment on the pleadings] have hearings on the merits prior to trial.
3. Motion for More Definite Statement (Rule 12(e))
a. Filed prior to answering. Must be responded to within 10 days.
4. Motion to Strike (Rule 12(f))
a. Filed within 20 days of service of
Yes
N/A
IV. Defendant’s Answers
A. Time Allowances – when to answer a complaint/motion:
1. Answering complaints
a. Within 20 days (Rule 12(a)(1)(A)); also applied to cross-claims (Rule 12(a)(1)(B))
b. Within 60 days (Rule 12(a)(1)(A)(ii)) or if the defendant is the US Gov’t (Rule 12(a)(2))
2. Answering motions – (Rule 12(a)(4)) – clock stopped when court is deciding on motion.
a. If motion to dismiss is denied or postponed until trial, the responsive pleading (answer) is due within 10 days of the court’s decision (Rule 12(a)(4)(A))
b. If motion for more definite statement is granted, responsive pleading (answer) is due within 10 days after the more definite statement is served (Rule 12(a)(4)(B))
B. Admissions/Denials – If you don’t deny it, it is assumed to be true. (Rule 8(b)(6)) (Zielinski v. Philadelphia Piers)
1. Admissions – if it’s true, you must admit it.
2. Denials
a. General Denial: deny everything in the complaint (rare)
b. Specific Denials: deny a specific allegation in the complaint
c. Qualified General Denials: admit to some things, deny everything else
3. Lack Sufficient Information – regarded as a denial (Rule 8(b)(5))
C. Affirmative Defenses – (Rule 8(c))
1. Any defense that injects new matter into the dispute.
2. Must be included in the defendant’s answer or they are waived. (Ingraham v. U.S.)
a. Defenses that can be raised by motion before an answer is submitted or included in the answer:
