Civ Pro Tool Box

CIV PRO TOOL BOX

PRE-TRIAL PHASE

Service of Process(Greene v. Lindsey)

Serving summons: D must have adequate notice (b/c of Due Process requirement of 14th Amendment). What is reasonable? Must consider likelihood of success, cost for all involved, the specific situation, and it must be proportional to interest at stake. In Greene v. Lindsey, in Kentucky, door posting wasn’t enough b/c kids tear down posting in public housing.
Rule 3: complaint commences action
Rule 4: P serves a summons. First P sends request for waiver. If D does not return signed waiver, P has someone serve the summons and D pays expenses. Can serve by delivering personally, by leaving a copy at each of the individual's dwellings or with someone of suitable age and discretion who lives there, or by serving someone who is authorized by appointment or law to receive service or process.
D has 20 days to respond to complaint (from time received complaint, rule 12) if didn’t waive service, 60 days (after sent) if did waive service. Note, P has 120 days to serve after complaint filed.

1: These rules cover all civil action, should be used for “just, speedy, and inexpensive determination of every action and proceeding”
2: “This is one form of action – the civil action.” [merges law and equity]
3: “A civil action is commenced by filing a complaint with the court.”

4: Summons
4a1: What a summons must include
4c1-3: WHO can serve it (can go by state rules or federal rules below)
4d: Waiving service – If D waives service, has 60 days instead of 20 to respond. If D fails to waive service, must bear cost of making service
4e: HOW to serve individual/corporation in the US
4l: Must have server’s affidavit to prove serving if service is not waived
4m: D must be served within 120 days of filing complaint

5th Amendment (Due Process Clause): “No person shall be …deprived of life, liberty, or property, without due process of law.”

Greene et al v. Lindsey et al (SC, 1982, Supp. 1, 1)
Notice must be reasonably calculated, under all circumstances, to inform parties and give them opportunity to defend themselves. Notice on door not sufficient b/c children often tear down (mail better…). State deprived P of property without due process, which is unconstitutional b/c of 14th amend.

PLEADINGS

Rule 11: SANCTIONS for misrepresentation in pleadings (Christian v. Mattell)
11a: Every pleading and written paper must be signed
11b: Signature certifies not presented for improper purpose, have or likely will have evidentiary support, etc. Certifies all these things to the best of signers knowledge “after inquiry reasonable under the circumstances.”
11c: Sanctions: May be monetary, but courts usually prefer nonmonetary
Christian v. Mattell (Barbie copyright case): P’s lawyer was terrible, D awarded monetary damages under Rule 11c, appeals court reversed and said needed to reconsider because might have awarded money based on lawyer’s behavior instead of just on written documents
COMPLAINT (Gillispie v Goodyear, Conley v Gibson, Twombly)
Rule 8:
8a: P’s complaint must have short and plain statement of claim showing entitled to relief, and demand for relief sought.
8b: In response to pleading, D must state in “short and plain” terms its defenses to each claim, and admit or deny allegations asserted against it by opposing party
8c: Affirmative defenses
8d: Pleadings must be concise and direct, and inconsistent pleadings allowed
8e: “Pleadings must be construed so as to do justice”
Twombly “retired” language of Conley. Conley said that complaint shouldn’t be dismissed unless no possible way P’s version of facts are true. Twombly says they need to be “plausible” or “probable” not just “possible.” (Sherman Act, competitive (Twombly) v. incumbent (AT&T/Bell) local exchange carriers).
RESPONSE (Haddle v Garrison, Zielinski, Jones v Block)
Default judgment: If D fails to respond at all, default judgment entered against her (Rule 55)
Pre-Answer Motions (optional)
Rule 12b6: Motion to dismiss for failure to state a claim for which relief can be granted (sometimes called demurrer) (Haddle v. Garrison, claimed conspiracy for firing injured people or property, SC said was a legal claim)
Answer:
Denial or Admission: Rule 8b requires D to deny only allegations he actually disputes, and anything not denied is deemed admitted.
There can be general denial of whole thing, or specific paragraphs
Zielinski v. Philadelphia Piers: Insurance company may have deliberately done confusing general denial to protect other client past statute of limitations, sanctioned under Rule 11.
Affirmative defenses (Any fact asserted by D that vitiates P’s claims; acknowledges P’s claims as true)
Amendments to Pleadings (Beeck v Aquaslide, Zielinski)
Rule 15, can amend once as matter of course (before being served with responsive pleading, or within 20 days if no responsive pleading allowed), and amend before trial with permission of opposing party or court, who “should freely give leave when justice so requires.”
Beeck v. Aquaslide (D allowed to amend to say didn’t manufacture slide, destroying case, even though statute of limitations had run because no bad faith and not really prejudice to P)
In general, amendments are to be freely granted (both before and during trial) as long as doing so won’t unduly PREJUDICE one of the parties

8: Pleadings and Responses
8a: Pleading must include short and plain statement showing court’s jurisdiction, short and plain statement of claim entitling P to relief, and demand for relief
8b: Admissions and denials as defenses; can admit or deny everything or specific claims
8c: Affirmative defenses: basically admitting facts but offering justification
8d: Pleadings must be concise, and can include contradictory claims
8e: “Pleadings must be construed so as to do justice.”

Form 11 (example of sufficient complaint for negligence):
(statement of jurisdiction, see form 7)
On date at place, the D negligently drove a motor vehicle against the P.
As a result, the P was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $___.
Therefore, the P demands judgment against the D for $___, plus costs. Date and Sign, see form 2.

11: Signing stuff, sanctions for untruths
11a: Every pleading, written motion and other paper must be signed by attorney (or party representing self)
11b: By signing, signer is certifying that “to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances,”
No presented for improper purpose
All claims and legal contentions are warranted by existing law, or by nonfrivolous argument to extend existing law
Factual contentions have, or are likely to have upon further investigation/discovery, evidentiary support
Any denials of factual contentions are warranted on the evidence
11c: Sanctions
Court may impose appropriate sanction on attorney (or party rep. self) who violates 11b
Opposing party may make motion for sanction
Or court may order sanction on its own initiative
Should be “what suffices to deter repetition of the conduct” by guy sanctioned or others in similar position. May include “nonmonetary directives [one judge ordered a class], an order to pay penalty into court…pay…reasonable attorney’s fees and other expenses directly resulting from the violation.”
11d: These sanctions not applicable to “disclosures and discovery requests” etc. (but apply to all other written documents)

12: Defenses and Objections, Motions to Dismiss (called Defenses) etc., and when and how to present
12a1A: D must serve answer within 20 after served (unless service waived, in which case D has 60 days after request for waiver was sent)
12b: D can assert following defenses by motion (as opposed to part of responsive pleading):

1)Lack of subject-matter juris., -fatal, can be made anytime

2)Lack of personal juris., -fatal

3)Improper venue, -fatal

4)Insufficient process, -amendable

5)insufficient service of process, -amendable

6)“Failure to state a claim upon which relief can be granted.” –amendable, can be made anytime. -In judging, court views pleading in light most favorable to non-movant.

7)failure to join a party under Rule 19

12c: Motion for Judgment on the Pleadings (can move for this as long as it’s early enough not to delay trial)
12d: If matters outside of pleadings presented, treated as summary judgment
12e: Motion for a More Definite Statement. Must be filed before responsive pleading is allowed, P has 10 days to reponse.
12h: Waiving and Presenting Certain Defenses (see 12b)

15: Amended and Supplemental Pleadings
15a1: Can amend once before trial as matter of course
15a2: Other amendments before trial must have opposing party or court’s consent. Court “should freely give leave when justice so requires.”
15b2: When an issue is not raised in the pleadings, but is tried by parties “express or implied consent,” will be treated as if raised in the pleadings, and pleadings can be amended to include it later.
15c: Relation Back of Amendments – This comes into play when statute of limitations has run so if amendment didn’t relate back, P could not bring case.
15c1C: Can only change person against whom claim is asserted and have it relate back if the new person received such notice of the action that it will not be prejudiced in defending on the merits, and “knew or should have know”…that the action would be brought against them if it weren’t for mistake in identity.

16: Pretrial Conferences; Scheduling; Management
16f: Sanctions if don’t comply, including paying costs

Sufficiency of Complaint

Gillispie v. Goodyear Service Stores (SC of North Car., 1963, Supp. 2, 29) -OUT OF DATE
P’s complaint didn’t contain sufficient facts to constitute cause of action (under Code Pleading). Not enough to allege conclusions, must give facts. Possible repo gone wrong.
Conley v. Gibson (SC, 1957, Yeazell 358) -OUT OF DATE
“…a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the P can prove no set of facts in support of his claim which would entitle him to relief.”
TWOMBLY [Bell Atlantic Corporation et al, Petitioners v. William Twombly et al] (SC, 2007, Supp. 2, 35)
“Retires” language of Conley. Complaint can’t just show that it is POSSIBLE that allegations are true (which is what Conley demands). Complaint has to show that allegations are plausible or probable. Sherman Anti-Trust Act, competitive local exchange carriers (Twombly) competing with incumbent local exchange carriers (AT&T/Bell), Twombly alleging conspiracy with no proof.

Responses by D

Haddle v. Garrison (SC, 1998, Yeazell 340-54) - Motion to Dismiss, Rule 12b6
D made 12b6 motion, saying that there was no legal claim; SC said there was. Complaint alleged conspiracy to fire P who provided evidence against D in other matter. Had to allege conspiracy b/c no legal recourse just for being fired wrongfully under Georgia law, so had to use law from Civil Rights Act of 1871.
Christian v. Mattell Inc. (9th circ., 2003, Yeazell 381) - Rule 11 Sanctions
(Barbie copyright case): P’s lawyer was terrible, D awarded monetary damages under Rule 11c, appeals court reversed and said needed to reconsider because might have awarded money based on lawyer’s behavior instead of just on written documents
Zielinski v. Philadelphia Piers, Inc. (E.D. Pa. 1956, Yeazell 393) - Denial of Allegations (general vs. by claim)
(Forklift on docks): Complaint alleged PPI both owned and operated forklift. D responded with general denial of neg., which was assumed to mean denial of operating forklift but really was denying owning and operating forklift and didn’t make this clear, that they didn’t own the forklift, until after statute of limitations so that P then couldn’t file suit against real owner. Since insurance company was representing both companies, court issued jury instruction saying that PPI did own the forklift.
Jones v. Block(SC 2007, Yeazell 370) - What must be alleged as affirmative defense vs. be in the complaint
Prisoner needn’t show exhaustion of administrative remedies in the complaint (to do so would be requiring a higher standard than is required by FRCP, and D can respond that P hasn’t exhausted administrative remedies as an affirmative defense, per 8c)
Beeck v. Aquaslide ‘N’ Dive Corp (8th Cir. 1977, Yeazell 403) - Amending pleadings
Absent a showing of undue prejudice to P or bad faith by D, leave to amend shall be freely given by court. P hurt by Aquaslide, D realized after statute of limitations that it was not they did not manufacture slide, allowed to amend and relate back. Court said P not unduly prejudiced because can still pursue fraud claim.

DISCOVERY

(Stalnaker v Kmart, Hickman v Taylor, Zubulake)

Rule 26b1: “any nonprivileged matter that is relevant to any party’s claim or defense”
Limit: privilege (attorney-client, doctor-patient, husband-wife)
Limit: 26b3, work product (work developed in prep for litigation)
Case that prompted this rule: Hickman v. Taylor
Limit: 26b4, experts retained who will not stand at trial have their work product protected too
Limit: 26c, court can order protective order to prevent “annoyance, embarrassment, oppression, or undue burden or expense.”
Stalnaker v. Kmart, didn’t compel people to testify about their voluntary sexual relations with employers because didn’t have to do with sexual harassment case and just to embarrass.
Limit: 35, Physical and mental exams can only be obtained with court permission and good reason
Discovery can be: documents (34), depositions (30, 31), interrogatories (33), physical and mental exams (35), requests for admission (36)
Possible discovery abuses: stonewalling, over-discovery, and mismatched resources
Over-discovery: can use 26b1 to argue that isn’t “relevant to claim or defense,” or 26g if “cumulative or burdensome,” or 26c to ask for protective order
Can use 37 to compel discovery, there are sanctions if still don’t obey

Rules 26-37 govern Discovery (plus rule 45 for subpoena)

26: Duty to Disclose; General Provisions Governing Discovery
26a: Required Disclosures (what needs to be disclosed; names of witnesses, copy of all documents, etc.) (Automatic Disclosure)
26a1B: Various proceedings exempt from initial discloseure
26a1C: Time limits
26b: Discovery Scope and Limits
26b1: “any nonprivileged matter that is relevant to any party’s claim or defense”
26b2: Limitations on frequency and Extend
26b2B: Can limit discovery of electronically stored info for practical/expense reasons
26b2C: Limit discovery when discovery sought is “unreasonably…duplicative,” can be obtained in easier manner, should have been discovered before discovery process, burden or expense outweighs likely benefit.
26b3: Work product protected
26b4: Expert who is employed only for trial prep, not to testify, is protected like work product
26b5: To claim privilege/protected, must expressly make claim, and preserve documents until claim resolved
26c: Protective orders
Court can order protective order to prevent “annoyance, embarrassment, oppression, or undue burden or expense.”
26d: Timing and Sequence (can’t seek discovery until 26f Conference has happened)
26f: Conference of the Parties; Planning for Discovery (There must be pretrial conference and discovery plan)
26g: Lawyer (or nonrepresented party) must sign and this certifies that it’s for good purpose, etc.

30: Oral depositions
31: Deposition by Written Questions
33: Interrogatories
35: Physical and Mental Examinations (Requires court assessment that it is relevant)
36: Requests for Admission

37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (i.e. Enforcement Mechanisms)
37e: Failure to produce e-documents may not be sanctioned if deleted as part of routine, good-faith operation of an electronic info system.

45: Subpoena

Stalnaker v. Kmart Corp. (D. Kan 1996, Yeazell 455) - Protective Orders
Rule 26c provides that the court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Sexual harassment case, holding can depose witnesses to limited extent and not about voluntary romantic relationships.
Long v. American Red Cross (SD Ohio 1993, Y Notes 457)
P wanted names of donors to further suit of neg. against blood bank for giving them HIV+ blood. Allowed discovery (with unspecified protective order) because donor name sought was deceased and thus had dimished prop. rights)
Coca-Cola Botting Co. v. Coca-Cola Co. (D. Del. 1985 Y Notes 457)
Coca-Cola Co. (D) refused to give up recipe for syrup because trade secret even when ordered to by court. Court order D to pay some attorney’s fees and instructed jury to infer formulas were identical (what P wanted to prove) but did not impose default judgment for failure to comply.
Hickman v. Taylor (US 1947, Yeazell 442) - Work Product
Can obtain info from written notes of opposing party’s lawyer when it’s the only way to obtain info and to not allow info would be a hardship on requesting party. Even then, mental thoughts, defense strategies, etc., will remain privileged/be redacted. P trying to obtain notes from D’s lawyer interviewing survivors of tugboat crash.
Zubulake v. UBS Warburg LLC (SDNY 2003, Yeazell 464) - E-discovery
Party must put “litigation hold” on any destruction of documents when party reasonably anticipates litigation (which can be before complaint filed). Inaccessible backup tapes can continue to be erased on normal schedule, unless know that these tapes contain documents relating to “key players.” Women employee suing company for sex discrimination.

SETTLEMENT

(Kalinauskas, Neary, Bancorp v Bonner, Evans v. Jeff)

Rule 41 deals with dismissal of cases.

41: Dismissal of Actions
41a: voluntary dismissal (by P)
41b: involuntary (move by D to dismiss for P’s failure to prosecute or comply with rules/court orders)

Kalinauskas v. Wong (D Nev 1993, Y 500) - Can confidentiality requirement of settlement trump future case subpoena? No, with limits.
May subpoena witness who previously settled with confidentiality agreement, but can’t ask about terms of settlement. Conflict of public and private interests. Sexual harassment case against Caesar’s Palace, wanted to subpoena previous employee who had settled sex harassment case with same employer.
Baker v. General Motors (US 1998, Y Notes 504)
Injunction as part of settlement in Michigan to forbid testifying can’t extend to cases outside of Michigan jurisdiction.
Neary v. University of California (Cal. 1992, P 46) - Can previous court decision be vacated? Cal. court says yes.
Absent extraordinary circumstances, when both parties settle while appeal pending, should vacate the decision if parties request it. Old cattle rancher, case had dragged on 13 years.
US Bancorp Mortgage Co v Bonner Mall (US 1994 P 48) - Can previous court decision be vacated? Fed. court says no.
Bankruptcy case, settled while appeal pending and Bancorp (but not Bonner) asked SC to vacate CoA decision. SC says DON’T vacate except in extraordinary situations, bc judgments are valuable to whole legal community, don’t just belong to parties. (Note: do vacate when controversy becomes moot through no action of the parties).
Evans v. Jeff D. (US 1986) - Can settlement bargain away atty’s fees that are otherwise collectable? Yes
Fees Act (allowing prevailing party to recover attorney’s fees in certain civil rights actions) doesn’t prohibit settlements that include a condition that attorney’s fees be waived. Legal aid lawyer on behalf of emotionally and mentally handicapped kids agreed to fee-waiving settlement but then asked SC to reject it bc Fee Act prohibits fees being waived (only SC says no).

PRELIMINARY RELIEF