Civil Procedure I Outline
Professor Family
Fall 2012
Process of Litigation
B) The Complaint
1. Rule 7 – Pleadings allowed; form of motions and other papers
a. 7(a) Pleadings
i. 7(a)(1) Complaint
ii. 7(a)(2) Answer to complaint
1. Chance to deny facts
a. See Zielinski
iii. 7(a)(3) answer to counter claim designated as counterclaim
iv. 7(a)(4) answer to a cross-claim
v. 7(a)(5) a third party complaint
vi. 7(a)(6) answer to a third party complaint
vii. 8(a)(7) if court orders one, a reply to an answer
b. 7(b) Motions and other papers
i. Must be in writing
ii. Stating the grounds for seeking order
iii. State the relief sought
2. Complaint should include what is outlined in Rule 10.
a. Caption, names of parties
b. Separate statements
c. Adoption by reference; exhibits
3. Rule 8
a. Notice pleading – does not have to give every fact of claim, but needs to give defendant notice of what claim is.
b. Rule 8(a) outlines “recipe” for complaint
i. 8(a)(1) Short & plain Statement of Jurisdiction
ii. 8(a)(2) Short & plain statement of claim showing entitled to relief.
1. Necessary to invoke a body of substantive law
2. Needs to link between facts and the law
a. Cannot simply list legal conclusion when filing complaint. Must list some factual evidence showing that complaint is plausible. Iqbal p. 390.
i. Can’t file a claim with only legal conclusion and hope for discovery of facts.
ii. Plausibility: complaint must contain sufficient factual matter, accepted as true, to state a claim of relief that is plausible on its face. Must be able to draw reasonable inference. Stating facts that are “merely consistent” with the defendant’s liability are not enough.
iii. Once you have a plausible complaint, you can find any set of facts to support complaint, surviving rule 8(a)(2).
1. To determine if it survives, ignore legal conclusions. Are the facts remaining plausible? Must be able to draw a reasonable inference.
3. Must satisfy that case is plausible
iii. 8(a)(3) Demand for relief/judgment
c. Rule 8(b)
i. 8(b)(3) General and specific denials
1. When responding to a complaint, even if poorly drafted complaint, must carefully and systematically deny EACH allegation
a. Zielinski v. Philadelphia Piers, Inc. (p. 433)
i. Defendant sent general denial to complaint
1. Defendant was actually not the employer. Had they treated every allegation in a systematic way, they could have denied such a fact.
a. Without denying the facts in the original complaint, it caused them to be left as the defendant and could not later deny such fact.
ii. 8(b)(5) Lacking knowledge or information
1. A party lacking knowledge or information sufficient to form a belief about the truth of allegation may state such, having the effect of a denial.
a. Note – Must keep in mind 11(b)(4) – conducted reasonable investigation.
iii. 8(b)(6) Failing to deny
1. Anything not denied becomes an admission
d. Rule 8(c) – In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense – See book.
i. Jones v. Bock p. 407 is an example of an affirmative defense. (prisoner v. warden case)
1. Burden of pleading in dealing with an affirmative defense rests on defendant to provide proof.
a. More likely that defendant will have the necessary information then the plaintiff.
4. Rule 9 Pleadings special matters
a. Rule 9(b)
i. Explicitly specify what fraud occurred
1. All fraud and mistake claims must contain specificity.
ii. Stradford v. Zurich p. 401
1. Insurance files counterclaim stating a fraud occurred.
a. Claim did not identify what fraud occurred however, and is forced to amend claim.
b. Must include this “specificity” to be a valid fraud or mistake claim.
c. Discusses Ross v. Bolton in regards to how there needs to be name, place, date in claim.
5. Rule 11 Signing pleadings, motions, and other papers; Representations to the court; sanctions
a. Governs Representation (lawyers)
b. Ethical Rules – limited to certain areas though as discussed
i. Can be sanctioned
c. WHAT IS PURPOSE OF RULE 11?
i. To prevent baseless claims
ii. By signing complaint, the lawyer represents:
1. 11(b)1: Claim is not improperly used (harass, delay, increase $ of litigation)
2. 11(b)2: Non frivolous argument pertaining to existing rule or law
3. 11(b)3: Representations are based on facts
a. Claims are reasonably based on belief or fact with evidentiary support
i. Walker v. Norwest (p. 416)
1. Attorney filed for Federal court to hear case, claiming “some parties” were from out of state
a. Improper fact finding, must list EXACTLY who is out of state, etc.
2. Massey (attorney) appeals to the sanctions, saying they are too strict.
a. Court says irrelevant, he failed to make a proper argument supported by evidence.
3. Massey tells court they should have c
arred from being filed by the first response. This is further noted and referred to in rule 12(h)2(B)
j. 12(f) – Motion to strike
i. If you want particular language removed from complaint, can motion to strike.
1. Examples of items that may be struck are inflammatory comments that may be read to a jury. Improper claim/pursuit of damages such as punitive AND exemplary when charge is only liable to exemplary, so punitive is struck (punitive damages)
k. Rules 12(g) à (Rule 12(g) and 12(h) prevent abuse of these pre-answer motions)
i. 12(g)1: allows party to join motions in one filing
ii. 12(g)2: Limits pre-answer motions to one attempt, as discussed by these rules. See Rule 12(h)(2)and (3) for exceptions to this rule.
l. Rule 12(h) – certain defenses are waived
i. 12(h): some defenses are waived if not included in the first responsive document.
1. 12(h)1: A party waives any defense listed in 12(b)(2)-(5).
a. When it is omitted from the first motion. You only have one chance to bring these motions. Unless allowed to amend
2. 12(h)2: Failure to state a claim, Failure to join under Rule 19(b), and legal defenses not barred from being filed by rule 12(h)(1) must be filed in [a document acting as a vehicle to attach to the case]:
a. a pleading under rule 7(a)
b. motion 12(c)
c. or at trial. Waived if not raised by end of trial though.
3. 12(h)3: Lack of Subject Matter Jurisdiction is never waived, can be raised at any time. If court determines there to be a lack of subject matter jurisdiction at any time, court must dismiss action.
5. Rule 15. Amended and supplemental pleadings
a. 15(a) Amendments before trial
i. 15(a)(1) Matter of course amendments
1. Does not require permission
a. Get to amend once as a matter of course
2. Allowed to just amend
3. Must be within 21 days as set out in 15(a)1(B)
ii. 15(a)(2) Other amendments (Permission amendments)
1. A party may amend its pleading only with the opposing party’s written consent or the court’s leave
a. Court should freely give leave when justice so requires
b. Beeck v. Aquaslide (p. 444)
i. Defendant seeks courts permission to amend, granted.
1. Court shouldn’t allow amendment when it is: (These come from Foman v. Davis, cited int his case)
