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Civil Procedure II
West Virginia University School of Law
Thornburg, Elizabeth G.

Civil Procedure II Outline
Thornburg

PART I of class: THE PLAINTIFF’S CLAIM

Types of pleading

· Common law pleading
Common law pleading was the system of civil procedure used in England, where each cause of action had its own separate procedure: law and equity were entirely different judicial systems, each with its own causes of action and available remedies. Because the list of causes eligible for consideration was capped early during the development of the English legal system, claims that might be acceptable to the evolving court often did not match up perfectly with any of the established causes. Lawyers might have to engage in great ingenuity to shoehorn their clients’ claims into the necessary “elements” required to bring an action.
· Code pleading
Code pleading was introduced in the 1850s in New York and California. Code pleading sought to abolish the distinction between law and equity[1]. It unified civil procedure for all types of actions as much as possible, and the required elements of each action are set out in carefully codified statutes.
However, code pleading was criticized because many lawyers felt that it was too difficult to fully research all the facts needed to bring a complaint before one had even initiated the action, and thus meritorious plaintiffs could not bring their complaints in time before the statute of limitations expired. Code pleading has also been criticized as promoting “hypertechnical reading of legal papers”[2].
· Notice pleading
Notice pleading is the dominant form in the United States today. In 1938, the Federal Rules of Civil Procedure were adopted. One goal was to relax the strict rules of code pleading. Code pleading served four purposes: notice, issue narrowing, pleading facts with particularity and eliminating meritless claims. Federal Rule of Civil Procedure (rule 8) eliminated all of those requirements except for the notice requirement (hence we call it notice pleading). The requirements that were eliminated were shifted to discovery (another goal of the FRCP). In notice pleading, plaintiffs are required to state in their initial complaint only a short and plain statement of their cause of action. The idea is that a plaintiff and their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence during the discovery phase.

· Alternative pleading

Alternative pleading is a legal fiction permitting a party argue two mutually exclusive possibilities, for example, submitting an injury complaint alleging that the harm to the plaintiff caused by the defendant was so outrageous that it must have either been intended as a malicious attack or, if not, must have been due to gross negligence.
HISTORY OF PLEADING PRACTICE
Description and Defining the dispute:
Gillispie v. Goodyear
Code pleading case:
· No cause of action was stated, thus demurrers affirmed.
· P allegations do not disclose what, when, where, who, what occurred and who did what: this is not enough information or factual background
· The complaint does not state facts sufficient to constitute any cause of action. Facts constituting a cause of action, rather than conclusions of pleader, must be set out in complaint ( Shrives v. Sample)
· However, it is well settled that a complaint must be fatally defective before it will be rejected as insufficient and “any portion of it to any extent it presents facts sufficient to constitute a cause of action the pleading will stand”
· Negligence is not a fact in itself, but is the legal result of certain facts
· The trial judge and defendant must know that exact right plaintiff seeks to assert or the legal wrong for which he seeks redress before there can be an intelligent trial under the rules of civil pro
· A plaintiff must make out his case secundum allegata- there can be no recovery except on the case made by his pleadings. In this case, there is not factual basis to apply the law.
· PROCEDURAL POSTURE: Plaintiff sought review of the decision of the Civil Term of Alamance (North Carolina), which sustained demurrers filed by defendant company and several of its employees in plaintiff’s negligence claim against the company.

OVERVIEW: Plaintiff alleged that the company was negligent by trespassing onto her property and confining her against her will and for generally causing her injuries. The lower court sustained the company’s demurrers. On appeal, the court affirmed, indicating that the plaintiff had failed to state a claim upon which relief could be granted because the complaint was fatal in that it merely alleged the acts complained of, but did not tie those facts in with plaintiff’s legal theory of the case. No cognizable tort was mentioned in plaintiff’s complaint.

OUTCOME: The court affirmed the lower court, which held that plaintiff’s complaint was fatally defective in her action against the company.

THE PROBLEM OF SPECIFICITY
RULES 8, 12 (e) and (b)(6)
Pages 134-38
Rule 8. General Rules of Pleading
(a) Claims for Relief.
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
(b) Defenses; Admissions and Denials.
(1) In General.
In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials — Responding to the Substance.
A denial must fairly respond to the substance of the allegation.
(3) General and Specific Denials.
A party that intends in good faith to deny all the allegations of a pleading — including the jurisdictional grounds — may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
(4) Denying Part of an Allegation.
A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information.
A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny.
An allegation — other than one relating to the amount of damages —

ons, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly

(6) defense by motion-> failure to state a claim upon which relief can be granted
Motion for a more definite stmt-> b/c so vague or ambiguous that the party cannot reasonably prepare a response

Rule 8
Rule 8(a) sets out the plaintiff’s requirements for claim: a “short and plain statement” of jurisdiction, a “short and plain statement” of the claim, and a demand for judgment. It also allows relief in the alternative.
Rule 8(b) states that the defendant’sanswer must admit or deny every element of the plaintiff’s claim.
Rule 8(c) also requires that the defendant’s answer state any affirmative defenses.
-pleadings -> claim of relief
Shall contain:
Short, plain stmt of grounds for jurisdiction
Short, plain stmt showing entitlement for relief
Demand for judgment for the relief the pleader seeks
Defenses, form of denials:
Defenses to each claim-> admit or deny
If w/o knowledge, shall deny
To deny only in part-> shall specify so
Can generally deny all of make specific denies

Pleadings:
Evidence (bad)-> facts (good) -> conclusion (bad)
You want FACTS before you go through with the lawsuit
Within Gillispie, no clause of action, not factual enough, need to state manner and cause of action, must have every fact within your complaint
-Notice to D, shapes the case, state which each D did
The court has created pleading guidelines to limit you options at trial

-Plain and concise state of the facts constituting a cause of action, factual allegation

INCONSISTENT ALLEGATIONS
Pages 138-142
RULE 8 listed fully above*
Consistency and Honesty in Pleading
US v. Board Harbor Commissioners 1977
The problem of specificity:
· P filed complaint so vague and ambiguous that D was unable to frame a responsive pleading under Rule 7, moved for a more definite statement
· D contend that complaint is too vague to even specify which D’s are responsible for the alleged discharge of oil, the amount of oil discharged and the removal costs incurred and the actions which are alleged to have caused the discharge
· A motion for more definite statement under rule 12 is ordinarily restricted to situations where a pleading suffers from unintelligibility rather than the want of detail
This complaint, on its face is said to be fairly easy to read and thus it was found that D’s motion was merely made in an effort to flesh out the governments case