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Civil Procedure I
Wayne State University Law School
Mateikis, William J.

CIVIL PROCEDURE FALL 2008
 
Introduction
Rule 1: These rules govern the procedure in all civil actions and proceedings in the US district courts except as state in Rule 81. They should be construed and administered to secure the Just, speedy, and inexpensive determination of every action and proceedings.
 
à         Rule 11: Is a rule on Ethics. Balance the harms.
·         It’s very important for the lawyer to do reasonable inquiry that keeps the system running smoothly, which promotes Rule 1, “justice, speedy, inexpensive” message. If Rule 11 is violated then cost is there, the process is slowed and it’s not fair to the other party. When CP hasn’t done their research and is wasting the DP’s time and $, it hinders the whole legal system. That’s why rule 11 is there to help the parties pull their own weight.
I.       Overview of Procedure
A. Where Can a Suit Be Brought?
1)      Subject Matter Jurisdiction
a.       Hawkins v. Masters Farms, Inc (D. Kan., 2003, P 6)
Facts-       П, estate rep, sues Δ from KY in fed ct alleging that his negligent driving caused the death of Mr. Creal. Δ files motion to dismiss under FRCP 12(b)(1), claiming there is not complete diversity.
Holding- Dismissed. Estate of Mr. Creal has KY citizenship b/c deceased and his wife were domiciled there w/ no intention or plans to move. No diversity per §1332.
b.   FRCP 12
                        (a) Answers to Claims
                        (b) Motions to Dismiss:
      (1) lack jurisdiction over subject matter
                              (2) lack jurisdiction over person
                              (3) improper venue
                              (4) insufficient process
                              (5) insufficient service of process
                              (6) failure to state claim upon which relief can be granted
c. 28 U.S.C. §1331- Federal Question Subject Matter Statute
2)      Personal Jurisdiction- FRCP 4(k)
a.       Est personal jurisdiction by serving person over whom ct has gen jurisdiction
b.      … Party joined under FRCP 14 or 19 and not more than 100 miles from court
c.       …. Has been personally served in the jurisdiction, even if no gen jurisdiction, provided it is consistent w/ Constitution and arises under fed law
3)      Venue- 28 U.S.C. §1391- Venue Generally
a.      Diversity Axn- in district where any Δs reside; where events took place; where Δ subject to personal jurisdiction
b.      Non-Diversity Axn- where Δs reside; where events occurred or property is; where any Δ can be found
4)      Service of Process- FRCP 3 &4; Forms 9-12 (draft of complaint)
B. Drafting the Complaint
1)      Rule 11 and Lawyer’s Responsibility
a.       Bridges v Diesel Service, Inc. (E.D. PA, 1994, P 13)
Facts-       П’s atty files suit, alleging violation of ADA. Δ moves for FRCP 11 sanctions for failure to conduct diligent legal research, b/c should have filed a complaint w/ the EEOC first.
Holding- Will not impose sanctions b/c FRCP 11 meant to deter not shift atty’s fees; mistake procedural, not blatantly frivolous; don’t want Title VII chilling. (D’s motion for Rule 11 motion denied).
b.      FRCP 11
                        (a) Signature Req’t
(b) Representations to Ct- by submitting certify believe them to be correct and not  
      frivolous
(c) Sanctions 11(b) – may be initiated by party or court; monetary or otherwise; not
      Compulsory.
(d) Must not be filed if challenged, claim, defense, contention, or denial is withdrawn or  appropriately corrected within 21 days.
(e) Rule 11 does not apply to discovery.
 
2)      Complaint
      a.   Bell v. Novick Transfer Co. (MD, 1955, P 15)
Facts-       П files suit, claiming Δ was driving negligently and this caused injury to his infant son. Δ moves to dismiss per FRCP 12(e) b/c complaint (Rule 8) not definitive enough.
Holding- Ct denies motion, citing purpose of FRCP 8 to only require a short and plain statement (basis for jurisdiction, claim for relief and demand for relief.)Can get more info during discovery through interrogatories and “other discovery procedure”. (D’s motion denied for Rule 12(b)(6)
b.        FRCP 7-10;
1. П typically files a complaint and Δ answers and may file motion to dismiss. 
    Pleadings may be amended under FRCP 15. Cross-claims and Counterclaims under FRCP 13
2. Two basic objectives of pleadings: give notice to the parties about what the  
    other side is going to do and screen out cases that do not belong in court.      
3. Rule 8- meant to prevent cases from being decided on technicalities rather than     
    on the merits.
C. Parties to the Lawsuit
B. Joinder of Parties
1)      By Пs: Mosley v. GM Corp. (8th Cir., 1974)
Facts-       10 workers sue GM for race and sex discrimination. District court separated claims because they were too unrelated.
Rule-        Interpret Rule 20 broadly: Permissive joinder is allowed when each party’s claim arises out of same transaction or series of transactions and a common set of facts or law will arise.
Finding-   π’s asserted a right to relief arising out of the same transactions or occurrences. Some questions of law and fact are common. 
Rationale- Also, consolidate proceeding to eliminate perverse incentives created by consecutive litigation; same rationale as for issue preclusion
FRCP 20: Permissive Joinder Of Parties- Пs may join together subject to ruling above; ct may order sep trials to prevent cost, delay, embarrassment or injustice.
 
D. Discovery
      1) Butler v. Rigby (E.D. La., 1998, )
Facts-       Δs have moved under FRCP to compel third party medical groups to produce info about patients w/ rel to lawyers in suit and list of all patients.
Holding- Med grps should produce info about patients referred to them by lawyers but list of all patients is privileged and should not be req’d. Party requesting info should pay ½ of all costs.
       2) FRCP 26-(b) allows discovery of any matter, not privileged, related to claim or defense of either party. Court may allow, for good cause, discovery of any matter related to subj matter of action.
       3) FRCP 26-36-Depositions, Interrogatories, Admissions and Examination
       4) FRCP 37- Allows for sanctions similar to those under FRCP 11; necessary b/c discovery easy way to cause undue expense, harass and embarrass other party
E. Pre-Trial Disposition and Trial
      1) FRCP 56: Summary Judgment
            (a) Claiming party- after 20 days or the opposing party serves a motion.
            (b) Defending party – at any time.
            (c) …judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affiadavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
            (e) Affidavits…must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated.
           Houchens v. American Home Assurance Co. (4th Cir., 1991, P 35)
Facts-       П sues Δ for breach of K b/c they refuse to pay out on life insurance for her husband, who disappeared. There is no evidence of whether he committed

laim which would entitle him to relief. … All the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. … The Federal Rules … accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”
 
2)   Haddle v. Garrison (S.Ct, 1998, P349)
Facts-       Δ sues employer for violating fed law allowing cause of axn for causing “injury to person or property” for cooperating in fed investigation. Ct of App affirms 12(b)(6) motion b/c pleadings did not allege П wasn’t an at-will employee.
Rule-        Complaint must allege all elements as set out by statute or case law
Finding-   Statute does not require that П claim he is not at-will.
 
Twombly
Local telephone companies conspired with each other by agreeing not to compete against each other in each other’s market and to exclude potential competitors from their own market thereby benefiting from monopoly power in violation of the Sherman Act.
Twombly’s Complaint
 
The complaint failed to state a claim under the Sherman Act because it contained insufficient factual allegations (parallel conduct + contention that defendants acted against self-interest) to support an inference that there was an agreement not to compete, which was a required element plaintiff bore the burden of proving; mere legal conclusion of an “agreement” not enough; the agreement allegation was insufficient because it failed to provide enough factual context to permit an inference that the allegation was plausible (could have been just insufficient notice — who did what wrong)
Oral Argument U.S. Supreme Court
S.D.N.Y. dismissed complaint; 2nd Circuit reversed, citing Conley v. Gibson
Petitioner: 12(b)(6) dismissal was proper because plaintiff did not allege anything beyond parallel conduct
Note: 12(b)(6) =dismissed before Discovery vs. Rule 56 = Dismissed after discovery.
 
 
WHERE DOES TWOMBLY FIT?
 
Does Plaintiff make it to the next stage of litigation?
Bell v. Novick: Yes, don’t need to plead how defendant was negligent – place and time is enough to put defendant on notice
Haddle: Yes, plaintiff can claim that termination was injury to property even though he was employed “at-will” because “property” under Civil Rights Act of 1871 need not be constitutionally protected “property”
Twombly: No, under Sherman Act, mere allegation of “agreement” – without some factual context sufficient to show plausible grounds for right to relief – did not adequately state a claim
Houchens: No, after discovery, plaintiff had no evidence to show that it was more plausible than not that husband died accidentally
 
(would Houchens survive 12(b)(6) motion after Twombly)?
 
Take-Aways from Bell v. Novick, Haddle, Twombly, Houchens
Know the story (factually)