CIVIL PROCEDURE II
Spring
I. Rule 7. Pleadings Allowed; Form of Motions – what is a pleading?
1. Rule 7 regarding pleadings
2. (a) Pleadings –
a. There shall be a complaint and an answer;
b. a reply to a counterclaim denominated as such;
c. an answer to a cross-claim, if the answer contains a cross-claim;
d. a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14;
e. and a third-party answer, if a third-party complaint is served.
f. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
i. Not verified, but are signed by lawyer (rule 11)
1. sanctions if not corrected within 21 day safe harbor period of R11
3. (b) Motions and Other Papers
a. (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, 12
b. shall be made in writing,
c. shall state with particularity the grounds therefore, and
d. shall set forth the relief or order sought.
e. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
4. 7(b)(2) The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
a. RULES OF FORM THAT APPLY TO ALL DOCUMENTS
5. (3) All motions shall be signed in accordance with Rule 11.
6. (c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.
II. What goes into a complaint (initial pleading)?1. RULE 8(a) Claims for Relief. [what is needed in a filed complaint]
a. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain
i. (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it,
ii. (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and — [SEE RULE 9 FOR HEIGHTENED STANDARD SITUATIONS, 12(b)(6) if you fail to meet 8a’s standards]
iii. (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
1) Complaint might be insufficient if
a. Judge cannot determine subject matter jurisdiciont
b. Facts stated are incompatible
c. Facts presented present no violation of the law – 12(b)(6)
2) Dioguardi v. During had case dismissed because it didn’t have “short and plaint statement of claim” but P had to write it again and it was ultimately remanded
1. can’t dismiss a claim based on a crappy complaint if there’s any validity to it
2. Rule 8(b) 3 possible responses to the allegations of the plaintiff’s complaint
1. ADMIT
a. relevant allegations can be admitted to so that the pleadings establish undisputed facts.
2. DENY – (20 days to file an answer)
a. under 8(d), anything not denied are deemed admitted.
b. If actually denied, allegations are called “joined” and will be adjudicated.
c. General denial
i. ‘defendant denies each and every allegation of the complaint’
1. generally not the case, hence generally not used
d. Specific denials
i. Generally each paragraph is responded to individually, but it’s not required
ii. Essentially itemizes what is admitted and denied.
1. try not to add additional facts ‘I didn’t run over her, she ran under my car’
iii. Must be done carefully since what is not denied is taken as admitted.
1. “negative pregnant”
a. “the D denies that she negligently drove her car on main street and ran over the P” (did she run over her some other time?)
3. Claim lack of sufficient info to admit or deny
a. Rule 8(b) allows for a party to claim she is ‘without knowledge or information sufficient to form a belief as to the truth or an averment’
i. Has the effect of a denial.
b. Difficult to use because of good faith requirements of rule 11
i. Essentially requires that D not have an access to information relevant, must not have ‘reasonable access to information’
4. Rule 8(c) – Affirmative Defenses (can be included in answer )
a. Requires defendant to raise affirmative defenses – essentially justification
i. Affirmative defenses admit the allegations but raise new material that would avoid liability for those allegations.
– i.e., a D admits that she did not maintain her side of a contract, but notes that the contract was illegal in the first place
– used in self defense – D killed P, but did it in self-defense.
– LIST of affirmative defenses -Rule lists 19 (non-exhaustive) defenses
– If ADs aren’t included in answer, they may be able alleged i
e do so without leave of court?
1. NO. D has filed an answer.
iii. P files a complaint. D files an answer with a counter claim. After a month, D wants to amend answer. No documents have been filed with the court, can he amend without leave of court?
1. Yes, (a response is permitted to a counter claim, but it hasn’t been submitted yet, so he can amend)
iv. P files a complaint, D files an answer with counter claim, P files reply, D wants to amend, does he need leave of court?
1. Yes, he can’t reply after responsive pleading has been filed
v. P files a complaint, D files an answer with a counter claim and cross claim. D wishes to amend answer within 20 days, does he need a motion to amend from court?
1. It depends whether a responsive pleading has been filed, since it’s permitted
vi. P files a complaint, D files an answer, with no counter claim, D files a third party complaint. A month passes, no documents are filed with the court during this period. D wants to amend answer, can he without court’s leave?
o Is a responsive pleading allowed? No. because no counter claim, no reply allowed.
o 20 day rule goes into effect, he waited more than 20 days.
o No, he can’t amend.
§ A third party answer is allowed to a third party complaint (which as to relate back to the original claim) – 3rd party gives “third party answer” and an amendment to 3rd party complaint is allowed before this third party answer is filed.
III. RULE 11 “SAFE HARBOR”
1. The safe harbor provision of RULE 11(b) allows objections to be raised on fraud
a. in representations to the court, an attorney must certify that to the best of the person’s knowledge, information and belief, formed after a reasonable inquiry, that submissions being made to the court (through pleading, motion, other)
i. 11(b)(1) – is not for an improper purpose such as harassment, delay, needless increase in cost
