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Civil Procedure I
West Virginia University School of Law
DiSalvo, Charles R.

Civil Procedure DiSalvo Fall 2015
Limits of Language
State ex rel. Wolfe v. King
Rule 4(c) of WVRCP requires service by a credible person not a party to the suit. A trial court issued an order that prevented felons from serving process.P is a convicted felon who runs a process service business. There is little case law on this issue in WV
Court should look at whether a person is competent to give evidence. Primary reason for rule is so that servers could testify as to reality of service. There is no provision preventing felons from serving process. Convicts are allowed to testify in WV and fed courts
Felons have limited rights, but they can be regained through rehabilitation. It would be odd if a convicted felon could run for governor but not serve process
Rule 1 – Scope and Purpose
The FRCP governs the procedure in all actions and proceedings in US District Courts, except those stated in Rule 81
Admiralty, bankruptcy, etc.
These rules should be construed for simplicity and administered to achieve just, speedy, and inexpensive determination of every action/proceeding
Rule 2 – One Form of Action
There is one form of action – the civil action
Works to remove the distinction between courts of law and equity
Rule 3 – Commencing an Action
A civil action is commenced by filing a complaint with the court (discussed at Rule 5(d))
If a complaint is filed and the D is not served within the specified time, the case will be dismissed without prejudice(120 days)
W/o prejudice – Can be refilled
Rule 4 – Summons
99% of service is conducted using the method described under 4(e)
The “suitable age and discretion” stipulation is arguable
Rule 4(d) permits the waiver of service or service by mail
WV has mail service through the clerk’s office
Rule 4(m) requires that service be made within 120 days of the filing of the complaint
Unless P can show a “good cause for failure” to the court. Court must then extend time
Rule 5 – Serving and Filing Pleadings and Other Papers
5(d)(2) – A paper is properly filed by delivering it to (A) the clerk; or(B) the judge
5(d)(3) – Electronic filing
WVRCP 5.03 requires documents in the N. District to be filed electronically
WV filing methods: Can give papers to the clerk, judge, or fax (anything after the complaint)
WV: Delivery is complete upon receipt of fax
Federal: Delivery is complete upon transmission
5(b) – Service must be made on the opposing lawyer if there is one
See 5(b)(2)(A-F) for these guidelines
WV permits service by fax; does not require permission
Anybody can serve these papers
Discovery documents aren’t filed with clerk unless ordered by judge (too many papers)
Rule 6 – Computing or Extending Time
Discusses what days are used to count time
WV: West Virginia Day is a legal holiday (June 20)
Rule 7 – Pleadings Allowed; Form of Motions and Other Papers
Lists what pleadings are allowed: complaint, answer, answer to a counterclaim, answer to a crossclaim, third-party complaint, answer to a third-party complaint, a reply to an answer (if ordered by the court)
Rule 12(a)(1)(A)(i) – D must serve an answer within 21 days
In WV: You can file a notice of a bona fide defense, gives you an extra ten days
Historically, pleadings serve several functions
Provides notice of the nature of a claim/defense
Identifies baseless claims
Setting each party’s view of the facts
Narrowing the issues
Oldest system of common pleading was used
Enormous emphasis on the pleadings; not a good system
Newer system was called code pleading
Required a detailed pleading of the facts
P had to state facts sufficient to create a cause of action
Problems with this:
People weren’t sure how detailed they needed to be
Bad distinctions grew out of the kind of facts that were needed/accepted
Led to as much waste/delay as before
System Today: Notice Pleading
Not meant to fulfill the last three functions listed above
“Short and plain statement of the claim showing that the P is entitled to relief”
Also wanted a certification that the pleadings are not frivolous
Dioguardi v. Durning (1944) 2nd Circuit
Judge Clark wrote the first FRCP
P had a dispute with customs in NY; said they lost some of his “tonics” and sold some of them to other bidders. The DC dismissed his complaint for “failure to state facts sufficient to constitute a cause of action.”
The purpose of pleading is to give the other side notice of the claims against them. Under the old code pleading system with emphasis on the facts, P would be out of luck. Not so here
All that the P needs is “ a short and plain statement of the claim showing that the pleader is entitled to relief ())
Facts will come out better in the discovery
Conley v. Gibson, (1957) USSC
Set a very high standard for dismissing a case based on a failure to state a claim
It must appear beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief
WV: This is still the standard (see Justice Benjamin dissent)
Rule 84 of FRCP gives a P the right to have a valid pleading if the forms are used
Leatherman v. Tarrant County, (1993) USSC
Civil rights case. Unanimous court held that a federal court may not apply a more stringent pleading standard civil rights cases alleging municipal liability under 42 USC §1983.
Rule 9(b) requires a heightened pleading standard for claims of fraud or mistake, but this is NOT a case of fraud or mistake
Swierkiewicz v. Sorema, USSC (2002)
P filed a complaint against his boss for age discrimination; was dismissed by DC. Legal theories were a Title VII of Civil Rights Act Violation
There are two ways to prove a discrimination case: Direct evidence of discrimination, or all employees of an age class are dismissed
Under a notice pleading system, it isn’t appropriate to require P to plead facts establishing a prima facie case b/c this framework doesn’t apply in every ED case
USSC: DC is making P choose his legal theory before discovery
USSC use Conley and Rule 8(a)(2) as its authority
Bell Atlantic v. Twombly USSC, (2007)
P filed suit against Bell Telephone under Sherman Antitrust Act. DC dismissed for failure to state a claim upon D’s Rule 12(b)(6) motion. The crucial question in this case was whether or not the companies acted independently or together. According to the USSC, parallel conduct alone is not enough evidence to make a case, there needs to be some sort of an agreement.
P’s obligations for pleading requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action won’t do”
The pleading must contain something more than a statement of facts that merely create a suspicion
is disregarded here

not insulate professionals from claims of fraud when the complaint alleges the fraudulent acts “with particularity”
Rule 9(b) requires slightly more notice than is necessary under Rule 8, but the requirement is met when there is sufficient identification of the circumstances constituting fraud.
Can’t require more from the P when the info needed is peculiarly within D’s knowledge
This is a pro-P holding
Denny v. Barber
Very similar facts to Carey case. Here the court held that 9(b) was not satisfied.
D accused the P of bringing a strike suit – a suit brought just to gain a settlement
The difficulty for P in these types of cases is that he does not have access to much of the needed info
One way to solve this: strictly limit discovery to specific issues and a short time
A Republican Congress (overriding Clinton’s veto) passed the Private Securities Litigation Reform Act (PSLRA) because they were upset about the application of 9(b) – it was being interpreted differently by different circuits
Creates a super-heightened pleading standard for these cases
Complaint must specify each statement alleged to have been misleading and give the reason why each is misleading
All facts on which a belief is formed must be stated with particularity
Facts giving rise to a “strong inference” that the D acted with scienter must be stated with particularity
Imposes a particularity requirement in securities fraud cases
Postpones discovery until all the motions to dismiss have been heard
Establishes special Rule 11 penalties
The initial thought about Civil Procedure rules in fed court was that they were trans-substantive (apply to every type of case)
PSLRA goes against this notion
It was one of the first inroads against this notion
Tellabs v. Makor, (2007) USSC
PSLRA requires that P must state with particularity facts giving strong inference to a wrong. Congress did not define the meaning of “strong inference”
There are two competing approaches in this opinion:
1) Look at the situation on its own terms
2) Look at the situation on its own terms, THEN look at opposing inferences
A complaint will survive “only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.”
Court gives a prescription for looking at 12(b)(6) motions
Accept all factual allegations in the complaint as true
Question whether all facts alleged, together, give a rise to a strong inference of scienter
Must take into account all opposing inferences
This case was decided AFTER Twombly, which said that cases should strip out “legal conclusions”
Doesn’t seem consistent with Twombly