Civil Procedure Buss 2003
Civil Procedure – Buss 2003
Service of Process
Idea of service of process derived from due process of law requirements in 4th, 5th, and 14th Amendments.
Subjects of legal proceedings must be given notice of actions in court against them
Rule 4 Service of Process
- Defines requirements for summons
- A-C discuss what needs to be included
- C discusses who can serve - any person not a party at least 18
- D discusses waiver of service
- defendant gets 60 days instead of 20 to answer if she waives service
- failure to waive shifts costs of service to defendant
- defendant has 30 days to respond to request for waiver
- E provides method of service
- (e)(1) allows service according to the rules of the state
- (e)(2) allows service personally on defendant, or to leave notice with person of suitable age and discretion
- The who (c) and the how (e) are separate, so there is some dispute about following the federal who and the state how
- M – service must be performed within 120 days after filing complaint
Greene v. Lindsey (Packet - Page 3) – NOTICE INSUFFICIENT TO APPRISE PARTY OF PROCEEDINGS – DUE PROCESS VIOLATION
- US Supreme Court case
- Holding - posting notice on tenants' doors insufficient
- Court holds that the law requires notice of proceeding must be reasonably calculated to apprise the person of the proceedings under the circumstances
- Additional use of mails would have satisfied the standard, though court leaves open alternative to determination of the state legislature
Pleading
- To commence a lawsuit, a plaintiff must file a complaint.
- A legal claim has two parts - 1. invoking a body of law 2. Relating a set of facts that fall under the body of law
- Federal rules prefer not to make decisions on pleadings - demand very little
- Pleadings must contain at least enough information for the defendant to be able to respond
- Inconsistent claims are allowed
- Cannot just state legal conclusions, though sometimes it's unavoidable
Rule 8 - Pleading
8a - Claims for Relief
- What the pleading must contain
- Short and plain statement of grounds for court's jurisdiction
- Short and plain statement of the claim showing pleader is entitled to relief
- Demand for judgment for relief sought
8b - Defenses (Form of Denials)
- Defenses (Answers)
8c Affirmative Defenses
- Lists things required to be asserted as affirmative defenses, but list is not exhaustive
- Okay to mix up counterclaims and affirmative defense if justice requires
8d Failure to Deny
- Failure to deny means you admit them
8e Concise and direct, consistency not required
- Pleading to be simple, concise, and direct
- No technical language is required
- State as many claims or defenses as desired, consistency not required
8f
- Pleadings construed to do substantial justice
Gillispie v. Goodyear Service Stores (Packet - Page 25) – PLEADING INSUFFICIENTLY SPECIFIC
- Code pleading case in North Carolina
- Plaintiff stated a lot of legal conclusions, but no facts
- Amendment of pleading available, but plaintiff chose to appeal instead
- Pleading did not specify WHO was being accused, did not contain any specific facts, defendants and court had no idea what claims existed
Rannels v. SE Nichols (Packet - Page 31) – PLAIN STATEMENT OF FACTS OKAY
- Plaintiff sued for malicious prosecution by defendant under bad check statute
- Defendant filed motion to dismiss under 12(b)(6), saying probable cause existed for prosecution as required by part 2 of the malicious prosecution statute
- District court granted motion, court of appeals reversed - facts needed are bare minimum
- However, district court also interpreted the bad check statute in favor of plaintiff
Haddle v. Garrison (Casebook - Page 417) – PLAIN STATEMENT OF FACTS OKAY
- Supreme Court case
- Sued under Civil Rights Act of 1871 for conspiracy to retaliate against Haddle by injuring person/property for testifying in a fraud trial against defendants
- Motion to dismiss because at-will employment does not constitute property
- Court held that at-will employment counts as property under tort law; law not just confined to property under constitution
- Not something that could be fixed by amendment
Rule 12 - Defenses and Objections (Pre-Answer Motions)
12a When Presented
- Cross-claims and counterclaims must be answered within 20 days of service
- If motion denied or postponed, 10 days to serve responsive pleading
- If motion for more definite statement granted, responsive pleading must be served 10 days after service of more definite statement
12b Motion to Dismiss
- Seven different motions allowed
- Lack of subject-matter jurisdiction
- Lack of personal jurisdiction
- Improper venue
- Insufficiency of process
- Insufficiency of service of process
- Failure to state a claim upon which relief can be granted
- Failure to join a party under Rule 19
12c Motion for judgment on the pleadings
- Judgment made on pleadings
- If outside material used, then treated like summary judgment
12e Motion for More Definite Statement
- If granted, must be obeyed within 10 days after notice of the order
12f Motion to Strike
- Insufficient defense can be struck
- Redundant, immaterial, impertinent, or scandalous matter can be struck
- Court's discretion
- Before responding to a pleading, or if no responsive pleading, within 20 days after service of the pleading
- Court can do it anytime
12g and h (Waiver and Preservation)
- Four motions are waived if not brought up in the first filing (pre-answer motions, or answer)
- Lack of personal jurisdiction
- Improper venue
- Insufficiency of process
- Insufficiency of service of process
- Lack of subject-matter jurisdiction can never be waived
- Failure to state a claim, failure to join a party indispensable, and failure to state a legal defense (defense version of 12(b)(6)) can still be used in judgment on the pleadings, summary judgment, trial on the merits, etc.
Rule 11 - Sanctions targeting misuse of litigation, sloppiness, harassment, etc.
- After 1993, amended to make sanctions at court's discretion, minimum punishment necessary to deter, monetary sanctions and fee shifting viewed as last resort
- Higher level of proof than 12(b)(6) - not just untrue, but unreasonable to believe it might be true, and/or party does not really believe it to be true, or has done nothing reasonable to think it might be true (research, good arguments, etc.)
- Does not stop the clock
11a Signature triggers provisions of rule - signature on pleadings required
11b Defines violations
- 1. Harass, unnecessary delay or cost
- 2. Claims warranted by law, or argument for extension or reversal of law, new law
- 3. Allegations have support (sloppiness)
- 4. Denials are warranted
11c Sanctions
- Safe harbor provision exists - once informed, violator has 21 days to amend or retract complaint
- Court can determine different period
- Can disadvantage defendants who must answer within 20 days, while plaintiff given an extra day to amend or retract
Business Guides v. Chromatic Communications Enterprises (Casebook - Page 424) – RULE 11 SANCTION FOR LACK OF RESEARCH AND SPECIOUS DEFENSE
- Allegation of copyright infringement based on 10 seed errors
- Turns out all but one were not real errors
- Firm held responsible under 11(b)(3) for lack of research following discovery of first error, and attempting to raise the "coincidence" defense
Religious Technology Center v. Gerbode (Casebook - Page 427) – RULE 11 SANCTION FOR CLAIMS UNWARRANTED BY EXISTING LAW
- Gerbode alleged that RTC violated RICO - racketeering act by setting up false nonprofits to use money to sue Gerbode
- Court held under 11(b)(2) that claims weren't warranted under existing law
- Went ahead and engaged in fee-shifting b/c of magnitude of abuses and use of frivolous actions in this case, also fine to be paid to court
- Sanctioned counsel, but not co-counsel, though acknowledged court's authority to do so
Qualified Immunity and Heightened Pleading Requirements
- Individuals that are subjects of a civil rights claim can use the qualified immunity defense
- Individuals are protected if they acted under a reasonable belief that what they did was constitutional
- Debate on requiring plaintiffs to plead with particularity regarding the qualified immunity defense in civil rights cases
- Case law does not require this particularity for entitites (Leathermen)
- In 5th circuit, suggestion that pleading does not need to address qualified immunity, but if defense invoked, then plaintiff is required to reply
Leatherman v. Tarrant County Narcotics Unit (Packet - Page 39-40) – HEIGHTENED PLEADING NOT NECESSARY FOR SUING CITY
- Supreme Court held that heightened pleading requirements not necessary for suing a city
- However, left room open for government individuals
Schultea v. Wood (Packet - Page 40) – HEIGHTENED PLEADING NOT NECESSARY FOR SUING OFFICIAL, BUT REPLY REQUIRED IN CASE OF QUALIFIED IMMUNITY DEFENSE
- Plaintiffs only need a short and plain statement
- But IF the defendant answers with a qualified immunity defense, then the plaintiffs must reply to address the qualified immunity defense, or else no discovery
Answer
- Defendant must answer, stating defenses to each claim within 20 days, unless service was waived, then 60 days
- Denials must specify if denying only in part or generally
- Can also deny by stating lack of knowledge or information sufficient to form a belief
- General denials are subject to Rule 11 sanctions if irresponsible
- Components of answer
- Admissions
- Denials
- Without sufficient knowledge for belief (same as denial)
- Affirmative defenses
- Counterclaims (against plaintiff) - replies required by plaintiff
- Cross-claims (against other defendants)
- Can include all defenses, except those waived if pre-answer motion was filed, otherwise all can be included
Zielinski v. PPI (Casebook - Page 457) – GENERAL DENIAL MISLEADING, DEFENDANT MUST ACCEPT CLAIM AS TRUE
- In paragraph 5 of the pleading, Zielinski alleged that:
- Forklift was owned by PPI
- Forklift operated and controlled by PPI
- Forklift operated in negligent manner
- Contact was made with the other forklift
- Plaintiff was unaware that PPI had sold company to Carload Contractors
- Defendant denied paragraph 5 generally
- Plaintiff thought defendant was denying negligence, but PPI was denying ownership
- Statute of limitations ran out before plaintiff discovered ownership change
- Court held that jury must find that forklift is owned and operated by PPI, though not true
Affirmative Defenses
- One standard is if the defense concedes the original facts, but additional facts change the legal significance of the original facts
- However, this standard raises the question of what facts are inherently part of the elements of a claim - i.e. if trespass necessarily assumes lack of easement, then a general denial seems to allow easement as a defense, but if trespass does not assume it, then easement will have to be pleaded as an affirmative defense
- Also, the stakes may be relevant - if the stakes are low, pretrial conferences and discovery are likely to be minimal, and the possibility for genuine surprise may occur
- Or should the standard be one of surprise, like in New York - is the plaintiff given fair notice, or genuinely surprised?
- Should the law be concerned with potential for surprise, or genuine surprise?
- The problem with mixing up a denial with an affirmative defense is the problem of assuming the burden of proof in the case of an affirmative defense
- Rule 8(c) allows court to correct counterclaim and affirmative defense mixups, but not denial and affirmative defense mixups
- Plaintiff has option of using a Rule 12(f) motion to strike to eliminate an insufficient defense
- Plaintiff may also reply to an affirmative defense, but is not required under Rule 7(a)
Layman v. SBC (Casebook - Page 463) – EASEMENT MUST BE PLEADED AS AFFIRMATIVE DEFENSE, DISALLOWED IN TRIAL
- Defendants responded to pleading with a general denial
- SBC used defense of easement, conceding many of the facts previously denied
- Plaintiffs alleged that SBC failed to plead easement and cannot use defense
- Court held that easement was an affirmative defense, and could not be used at trial - standard used was if defense conceded original facts, but additional facts change the legal significance of original facts
- However, this holding also assumes that a claim of trespass does not necessarily involve an element of assuming a lack of easement
Burden of Pleading/Burden of Proof
Plaintiff is assumed to have the burden of pleading, but not always clear who has the burden of proof
Some factors involved in determining burden of proof (not always followed, and some factors cut against each other)
- Who has better access to information?
- Who is making the less probable, more difficult to prove claim?
- Public policy concerns
- Language of the statute
- Perhaps plaintiff has burden of proof because of costs of litigation
- Alleging something that deviates form normal circumstances
Amendments
Permission is freely given by the judge
Pleading or answer can be amended at virtually any point
Exceptions – Foman standard
- Bad faith
- Dilatory or delaying tactics
- Withholding information or manipulation
- Futility of amendment
- Statute of limitations has run, and new claim does not relate back to original
- Undue prejudice - other party is worse off because of the timing, not because of the existence of the amendment
Rule 15 Amendments
15aAmendments
- Anytime before responsive pleading, or 20 days after service
- Party may respond within time remaining, or 10 days, whichever is longer
- After that period, amendment only with leave of court or written consent of both parties – however, leave must be granted unless violates the Foman standard
15c Relation Back of Amendments
- Allows amendment to relate back to date of original pleading if
- Permitted by law of statute of limitations
- Claim or defense arose out of conduct, transaction, occurrence in original pleading - common nucleus of relevant facts
- Changes the party if prior requirement is satisfied, and the new party will not be prejudiced in defense and has received reasonable notice (typically 120 days), and knew or should have known that the action would have been brought against the party
Beeck v. Aquaslide 'N' Dive Corp. (Casebook - Page 470) – AMENDMENT ALLOWED B/C WON’T UNDULY PREJUDICE PLAINTIFF
- Beeck was seriously injured using a waterslide and sued Aquaslide
- Aquaslide admitted manufacture in answer, interrogatories
- Statute of limitations ran
- President of Aquaslide suddenly discovered that slide was not manufactured by them
- Court allowed defendants to amend
- Court assumes that plaintiff will probably be able to amend, but does not say for certain
- Court dismisses undue prejudice concern, but Buss says that she could also decide for Aquaslide because of requirement of justice
Statute of Limitations
Why does it exist?
- Stale evidence, memories, etc.
- Value of repose - shouldn't force people to continuously anticipate suit, want people to assume that stuff is settled so we can act - buy property, etc.
- Liability is punishment, so should come quickly, otherwise pointless
Moore v. Baker (Casebook - Page 477) – AMENDED CLAIM DISALLOWED – DOES NOT RELATE BACK TO ORIGINAL AND STATUTE OF LIM. RAN
- Patient suffered complications from surgery
- Sues doctor for failing to inform of alternatives
- Doctor moves to dismiss for failure to state a claim
- Patient wants to amend to add a negligence claim
- Court denies leave to amend because period before and during surgery are distinct, so the amendment does not relate back and the statute of limitations on negligence has run
Bonerb v. Richard J. Caron Foundation(Casebook - Page 479) – AMENDED CLAIM ALLOWED – COMMON NUCLEUS OF FACTS – RELATION BACK
- Amended to change negligence to counseling malpractice
- Essentially the same set of facts necessary for each claim
- Amendment was allowed
Overview of Pleading
- Pleading should provide enough information to the parties so that the basic issue of the case is known to both parties. This standard is much lower than common law pleading and code pleading.
- Rule 11 permits the courts to sanction parties for pleading improperly. That and other elements of the rules grant the courts a great deal of discretion for hearing or not hearing cases.
- The general rule is that we want the case to move forward on the merits, but will qualify that in certain cases, like qualified immunity from litigation or we might feel that action is too burdensome.
- Defendants can be relatively simple in responses, but they must be similarly specific relative to the plaintiffs’ pleadings. Defendants are under obligation to assert an affirmative defense.
- But, there is recourse if new theories or facts – amending is fairly generous to both sides.
Discovery
- Discovery is the stage of a civil action where plaintiffs and defendants request, share, and provide information relevant to the case
- Party must phrase questions in the right way and ask for the right things in order to get relevant information
- So long as the questions are appropriately framed, the other party ought to provide truthful and complete answers
- Discovery is also often the most expensive and most time-consuming part of the process
- Much potential for harassment, abuse, and intrusiveness
- Imposes great burden on provider of information as well
- Court is not involved, unless parties cannot resolve a dispute
- Discovery can use interrogatories, production of documents, depositions, physical and mental examinations
26b Discovery Scope and Limits
- Anything that is relevant, but not privileged
- Doesn't have to prove the issue (be admissible at trial) if reasonably calculated to lead to something that proves the issue
- Privileges are fairly narrow
- Not generally tied to the issues of the case
- Tied to preserving relationships
- Even the goal of getting to the truth on the merits is subordinate to preserving certain relationships
Automatic Disclosure
- Used to be even broader before 2000 - what other side needed to prove its case, in addition to what you needed to prove yours
- Now only requires disclosure of evidence necessary to prove your case
- Can't reveal evidence during trial in support of an element of your case that you failed to disclose
- This standard is also easier to enforce - hard to determine what the other side may have needed
26a Required Disclosures
- Name and contact info of people likely to have info that the disclosing party may use to prove her case
- Copy of or a description by category and location of documents, data, tangible things that may be used by party to prove case
- Stuff relevant to damages and computation of damages