Civil Procedure II, Phemister / Outline
I. Pleadings and Discovery
A. Overview & Terminology
i. Pleading: written document in which party asserts claim or defense or denies the legitimacy of claim/defense asserted by opposing party.
ii. Complaint: case-initiating pleading filed by P, including factual allegations of P’s claim for relief & legal basis on which his claim rests.
iii. Answer: responsive pleading filed by ∆ that either denies factual premises of P’s complaint or asserts an affirmative defense to P’s underlying claim; can also include a claim by ∆ against P.
iv. Demurrer: in most jurisdictions either party may file one; admits factual premise of the pleading to which it responds, but argues that the pleading is legally insufficient.
B. Code Pleading: aka fact pleading. Adopted in 19th/20th centuries in most states. Seen as having improved and stream lined pleading process. Most code jurisdictions merged their courts of law & equity & created one court of general jurisdiction that could hear both legal and equitable claims. However, the distinction btw law & equity remained important—determined the kind of remedies available. Abolished forms of action, replacing them w/a single form = a civil action. One form now fit all claims. Liberalized rules re: joinder of claims & parties, making it possible for litigants to receive a more complete resolution of their dispute in a single proceeding. Simplified and shortened pleading process by limiting types of pleadings that could be filed to complaints, answers, demurrers, and replies, and by replacing issue pleading w/fact pleading.
i. Epstein v. M. Blumenthal & Co. Conn. 1932 P should not be allowed to recover for a cause which he has not fairly alleged in his pleadings.
1. FACTS: Complaint alleged negligence bc ∆ left building onto busy street w/ladder, but at trial discovered that P’s injury was instead caused by ∆ turning w/ladder on street.
2. Crt affirmed TC jury finding for ∆. Negligence in complaint was expressly predicated upon his conduct in coming out of building on sidewalk, not as was shown at trial by turning around on sidewalk.
3. Note: Today, a variance will generally not be treated as material unless it has actually misled the adverse party to his prejudice in maintaining his axn or defense upon the merit. Even material variances can be cured by an amendment to the pleadings, including amendment to conform to proof, so long as this can be accomplished justly. Crt may even allow opposing party additional time to prepare a response to the nonconforming evidence. Material variance can also be cured by party’s failure to object to the nonconforming evidence at trial. Complaint will not survive demurrer if it fails to give the opponent and the court at least fair notice of the facts constituting a cause of axn.
4. FRCP 15: allows you to amend complaint to conform to the evidence even after the judgment has been entered. P’s atty should have filed for a motion to amend complaint to conform to the evidence.
ii. Bockrath v. Aldrich Chemical Co Ca 1999
1. FACTS: Plaintiff alleged, vaguely, contact with multiple toxins caused him cancer.
2. But when the pleaded facts of negligence and injury do not naturally give rise to an inference of causation, the plaintiff must plead specific facts affording an inference the one caused the others.
3. The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.
4. Actual belief standard requires more than a hunch, a speculative belief, or wishful thinking: it requires a well-founded belief.
C. Notice Pleading & the FRCP: intended to eliminate technicalities of pleading and provide opposing parties in a civil action w/notice of basic contentions underlying a lawsuit. FRCP adopted this system & majority of state courts have also adopted it.
i. The Complaint
1. Rule 8(a) Claims for Relief, Three Requirements of a Complaint
a. 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.
b. A short and plain statement of the claim showing that the pleader is entitled to relief.
c. A demand for judgment
time of the original pleading.
6. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit US 1993
a. FACTS: Local law enforcement officers forcible entered a home based on detection of odors associated w/making of drugs. P sued several local officials in their official capacity, asserting that the police conduct had violated 4th Amendment to US Constitution. Liability of municipality based on failure of these bodies to adequately train the police officers involved. 2 lower courts dismissed bc they failed to meet the heightened pleading standard required by 5th Circuit for suing under 42 USC 1983.
b. Reversed. Court cannot enforce a heightened pleading standard for causes of axn other than the exceptions specifically set out by FRCP 9 and Congress.
c. FRCP do not require claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is a ‘short and plain statement of the claim’ that will give ∆ fair notice of what P’s claim is & grounds upon which it rests.
ii. The Answer: once ∆ has been served w/ a summons & copy of the complaint, her response is normally due w/in 20 days, R 12(a).
1. Rule 8(b)-(e). In answer, ∆ must admit or deny each allegation in the complaint.
a. Generally this is done by admitting or denying each specific allegation.
b. General denial, a denial to the entire complaint, may be entered only if ∆ wishes to controvert all the allegations in the complaint, including those relating to smj.
c. Failure to deny an allegation or an ineffective denial are both treated as admissions, R 8(d).
d. Some denials, i.e. those challenging the P’s capacity or performance of a condition precedent, must be made w/specificity.
