Civil Procedure I Outline

 
Federal Rules of Civil Procedure
·         Procedural law (rules of the games)
·         Notice pleading- just enough facts to notify other party
o   Common law pleading- formula like- technical dismissals where the wrong writ means the case is lost
o   Code pleading- less writs, more facts, too many facts
 
THE PROCESS OF LITIGATION
 
1. Complaint
·         Rule 1- Scope and Purpose
o   Just, speedy, and inexpensive determination of every action= efficiency
·         Rule 2- One Form of Action
o   Civil
·         Rule 3- Commencing an Action
o   Filing a complaint with the court starts a lawsuit
·         Rule 7- Pleadings Allowed; Form of Motions and Other Papers
(a)    Pleadings
1.      Complaint                                                       4. Answer to counterclaim
2.      answer to complaint                                        5. Third party complaint
3.      answer to counterclaim                                   6. Reply to an answer (if the court
designated as counterclaim                             orders)
(b)   Court order must be made by motion
1.      in writing unless during hearing or trial
2.      state grounds for seeking the order; and
3.      state relief sought
·         Rule 8. General Rules of Pleading
(a)    Recipe- claims for relief must include a short and plain statement of
1.      ground for jurisdiction
2.      the claim is entitled to relief; and
3.      demand for relief sought
·         Rule 10. Form of Pleadings
            (a) Caption; Names of Parties- must be on every pleading
            (b) Paragraphs, Separate Statements- must be numbered
(c) Statements may be adopted by reference in another part of the same pleading, and instruments that are exhibits are considered part of them.
 
2. Challenging a Complaint
·         Pleas
o   Dilatory- defendant’s potential response to the compliant
§ Procedural delay
o   Preemptory- answers the allegations of a complaint
§ Addresses the merits of a complaint
·        Rule 8. General Rules of Pleading
(b)   Defenses, Admission and Denials
1.      In general, response to a pleading must
(A)   state short and plain defense for each claim; and
(B)   admit or deny allegations
2.      Denials must respond to substance of allegation
3.      General and Specific Denials- deny specifically designated allegation or generally deny all except those that have been admitted
§ Denial- Transverse- courts grants judgment on merits for defendant because defendant asserts that allegations of complaint are false. (preemptory plea)
§ Not true…
§ Zielinski v. Philadelphia Piers, Inc.- Zielinski alleging personal injuries from Piers, but wrong company. Defendant had an ineffective denial. Zielinski’s attorney should have broken down the complaint and written more specific allegations
4.      Denying part of an allegation- admit part is true and deny the rest
5.      Lacking knowledge or information- has the same effect as a denial
6.      Effect of failing to deny
§ If responsive pleading is required- allegation is considered admitted
§ If responsive pleading is not required- allegation is considered denied
(c)    Affirmative Defenses
·         Defendant’s responsibility
·         Confession and Avoidance- court grants judgment on merits for defendant due to statute of limitations (dilatory plea)
o   Yes, but…
·         Jones v. Block- Jones, prisoner, claimed he suffer injuries and the guards should not reassign him other work making his injuries worse. Affirmative Action
1.      In general, in response to a pleading, a party must affirmatively state any avoidance or affirmative defense, including those listed.
2.      Mistaken designation- of a defense will be treated as correct by the court out of fairness.
·         Rule 12- Defenses and Objections
(a)    Time to serve responsible pleading
1.      Unless otherwise specified, the time is
(A)   defendant must serve an answer
(i) within 20 days after being served a summons or complaint
                  etc.
                  4. Effect of a Motion. Unless otherwise specified
      (A) if court denies the motion or postpones its disposition until trial, responsive pleading must be served within 10 days
§ 10 days after a pre-answer motion to file an answer
      (B) motion for a more definite statement, must be within 10 days
            (b) How to Present Defenses. Defenses may be asserted by motion in a responsive pleading:
                  1. lack of subject-matter jurisdiction; (dilatory plea)
                  2. lack of personal jurisdiction; (dilatory plea)                
                  3. improper venue;
§ Abatement (dilatory plea)      
                  4. insufficient process;                             
                  5. insufficient service of process;
6. everything the claiming party says is true, does that party state a claim upon which relief can be granted.; and
§ Demurrer- before a motion to dismiss, the court gives the plaintiff a chance to amend (preemptory)
·         So what?
§ Assumes facts are true, tests the law
§ If you survive a 12(b)(6) motion, it doesn’t mean you win, still must go through discovery to tests the facts. No longer will assume facts are true.
§ Haddle v. Garrison- Garrison’s company was under investigation. Haddle,