Civil Procedure Condensed Outline – Fall 2007

  1. Pleading
  1. Systems of pleading
  2. Common Law Pleading
  3. Code Pleading

a)Required pleading of “ultimate facts” that were neither too detailed (evidentiary) nor conclusory (conclusions of law)

  1. Federal Rules

a)Only requires “a short and plain statement of the claim showing that the pleader is entitled to relief” (Rule 8(a)(2))

  1. The Complaint
  2. Elements of the complaint (three)

a)A “short and plain statement of the grounds upon which the court’s jurisdiction depends” (Rule 8(a)(1))

b)A “short and plain statement of the claim showing that the pleader is entitled to relief” (Rule 8(a)(2))

c)A “demand for judgment for the relief the pleader seeks” (Rule 8(a)(3))

  1. The form of the pleadings

a)Any pleading [caption] must state: (Rule 10(a))

  1. The name of the Court
  2. The title of the case (by the parties’ names)
  3. The identity of the document itself
  4. File number/case number

b)The body of the pleading sets forth the claims or defenses in numbered paragraphs (Rule 10(b))

  1. Legal Sufficiency

a)Legal sufficiency is tested by Rule 12(b)(6) motion (equivalent to a general demurrer) – “failure to state a claim upon which relief can be granted”

  1. Factual (or “Formal”) Sufficiency

a)Rule 8(a) – requires only “a short and plain statement of the claim showing that the pleader is entitles to relief”

  1. Heightened Specificity Requirements in Certain Cases

a)Claims involving fraud or mistake have a heightened pleading standard
(Rule 9(b))

  1. A party must state with particularity the circumstances constituting fraud or mistake.
  2. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally

b)Special Damages

  1. If an item of special damage is claimed, it must be specifically stated (Rule 9(g))
  1. Pleading Inconsistent Facts and Alternative Theories

a)If either alternative theory is sufficient, then the pleading is sufficient(Rule 8(d)(2))

b)A party may state as many separate claims or defenses as it has, regardless of consistency (Rule 8(d)(3))

  1. Voluntary Dismissal

a)Voluntary dismissal without a court order before the defendant files an answer or a motion for summary judgment (Rule 41(a)(1)(i)) or by stipulation from all parties who appear(Rule 41(a)(1)(ii))

b)Dismissal can also be by court order, at the request of the plaintiff, and only on terms that the court considers proper. (Rule 41(a)(2))

  1. Involuntary Dismissal

a)A district court maydismiss the casesua sponte

b)Involuntary dismissal (except for lack of jurisdiction, improper venue or failure to join a party) operates as an adjudication on the merits

  1. Defendant’s Options in Response to a Complaint
  2. Defendant has 20 days after service of a summons and complaint to file an answer (Rule 12(a)(1)(A)(i))
  3. Defendant has two basic options in response to a complaint:

a)Motions – A request of the court to do something

  1. 12(b)(2)-(5) are waivable if not asserted before or with the answer
  2. 12(b)(6)-(7) can be brought up at any point during the trial
  3. Motions:
  4. 12(b)(1): Lack of subject matter jurisdiction
  5. 12(b)(2): Lack of personal jurisdiction (waivable)
  6. 12(b)(3): Improper venue (waivable)
  7. 12(b)(4): Insufficient process (waivable)
  8. 12(b)(5): Insufficient service of process (waivable)
  9. 12(b)(6): Failure to state a claim upon which relief can be granted
  10. 12(b)(7): Failure to join a party under Rule 19
  11. Rule 12(e)motion: Motion for a more definite statement
  12. Rule 12(f) motion: Strike an insufficient defense
  13. Rule 56:Motion for summary judgment (Rule 12(c))

b)Answer – two options respond to allegation or state affirmative defense

  1. Responses to the Plaintiff’s Allegations – three possible responses
  2. Admissions
  3. Denials
  4. General denial – defendant denies all of the allegations of the complaint (including jurisdictional grounds)
  5. Specific denial – Responding to each paragraph of the complaint
  6. Errors in denials

1)Argumentative denial – pleading fact with are contrary to the complaint

2)Negative pregnant – making a denial too literal, which in essence admits a similar complaint

3)Conjunctive denial–where the complaint alleges a series of events and the defendant denies the paragraph

  1. Denials for Lack of Knowledge or Information
  2. Rule 8(b) allows a party to state that she is “without knowledge or information sufficient to form a belief as to the truth of the averment” (acts as denial)
  1. AffirmativeDefenses
  2. Must be stated in defendant’s response(Rule 8(c))
  3. If not raised in pleading, cannot be argued in court
  4. Rule 8(c)(1) lists 19 affirmative defenses (not exclusive)
  1. Claims by the Defendant

a)Counterclaim and crossclaim (Rule 13)

b)Join a Third Party (Rule 14)

  1. Failure to Respond and Default Judgment

a)If a defending party fails to respond in an appropriate and timely way, she may finder herself in default

b)Rule 6(b) – Extending time

c)Rule 54(c) – Demand for Judgment, Relief to be Granted

d)Rule 55 – Default, Default Judgment

  1. Amended Pleadings
  2. Basic Principles (Rule15(a))

a)Amended once as a matter of course:

  1. Before being served with a responsive pleading; or
  2. Within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar

b)Otherwise with the opposing party’s written consent or the court’s leave

  1. Balancing test for court’s leave: (should be freely allowed to amend)
  2. Plaintiff’s need to amend and the reason for the delay, vs.
  3. The prejudice to the defendant and the defendant’s chances to mitigate
  1. Variance(Rule 15(b))

a)Variance – the presentation of evidence not covered in pleading

b)If objected to, the court may allow the pleading to be amended.

c)If t not objected to, may be agreed to by express or implied consent and be treated as if it were raised in the pleadings.

  1. Amendment and the Statute of Limitations(Rule 15(c))

a)Relating back amendments (Rule 15(c)(1))

  1. Relates backwhen:
  2. Statute of limitations allows relation back;
  3. [changing claims]The amended claim arose out of the same transaction or occurrence as the original pleading
  4. [changing parties] (1) Amended within 120 days of filing (Rule 4(m)) and (2) arises out of the same transaction or occurrence and (3) based on the service of summons and complaint, the party to be amended
  5. Received such notice of the action that it will not be prejudiced in defending the merits; and
  6. Knew or should have known that the action would have been brought against it, but for a mistake in identity
  1. SupplementalPleadings (Rule 15(d))
  2. Supplemental pleadings include facts that were discovered after the original filing

a)Enter new facts or change the relief sought or add additional parties (can be any transaction or occurrence)

b)Supplemental pleadings are allowedonly with the consent of the court

  1. Veracity in Pleading: Rule 11 and Other Devices
  2. Rule 11

a)Basic requirements:

  1. Applies to every pleading, motion, paper and argument (including oral) to the court, but does not apply to discovery
  2. Requires certification in rule 11(b) to be made by the lawyer:
  3. Not to harass, cause needless delay, or increase the cost of litigation (11(b)(1))
  4. Claims, defenses or other legal contentions are warranted by existing law or non-frivolous arguments for extending, modifying, or reversing existing law (11(b)(2))
  5. Factual contentions have evidentiary support or will likely have evidentiary support after further investigation (11(b)(3))
  6. Denials of factual contentions are warranted on the evidence or reasonably made on belief or lack of information (11(b)(4))

b)21-day Safe Harbor Provision:

  1. Party moving for Rule 11 sanction must give the violating party 21-days notice before filing the motion with the court
  2. The 21-day safe harbor is mandatory and waivable

  1. Notice and the Opportunity to be Heard
  2. Notice
  3. After filing the complaint, plaintiff must give notice to defendant

a)Defendant must be aware that the case exists

b)Must give defendant a good idea of the circumstances out of which the case arises

c)Must tell defendant how long they have to respond to the complaint and the time period for a reply

  1. Constitutional Requirement of Reasonable Notice

a)Fundamental requirement of due process: notice reasonably calculated to inform interested parties of the pendency of the action

b)Constitutionalvalidity: the form of notice is defensible when the form of notice is notsubstantially less likely to give notice than other feasible and customary substitutes

c)Notice for known persons: must be reasonably certain to reach most of those interested.

  1. Ordinary mail is likely sufficient
  2. When many people are in the same position (Mullane), notice must only reach a majority of the people
  3. Known addresses, plaintiff must send individualized notice to the person

d)Notice for unknown or missing persons:Statutory minimum is defensible

  1. The Statutory Mechanics of Giving Notice

a)Service of Process

  1. Service on Individuals – Rule 4(e)
  2. An individual – Unless waived,otherthan a minor, an incompetent person, or a person whose waiver has been filed – may be served by:
  3. Following state law either where the action is brought or the service is made (Rule 4(e)(1)), or
  4. Doing any of the following:

1)Delivering a copy of the summons and of the complaint to the individual personally (Rule 4(e)(2)(A));

2)Leaving a copy of each at the individual’s dwelling or usual place of abode with someone of (a) suitable age and (b) discretion (c) who resides there (individual may have more than one residence for service of process) (Rule 4(e)(2)(B)); or

3)Delivering a copy of each to an agentauthorized by appointment or by law to receive service of process(Rule 4(e)(2)(C))

  1. Corporation – (Rule 4(h))
  2. Unless the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
  3. In a judicial district of the United States:

1)Following the state law where the district court is located or where service is made [ie. Rule 4(e)(1) for serving an individual]; or

2)By delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and – if the agent is one authorized by statute and the statute so requires – by also mailing a copy of each to the defendant; or

  1. At a place not within any judicial district of the United States, in any manner prescribed byRule 4(f) for serving an individual except personal delivery under [Rule 4(f)(2)(C)(i)]
  1. Statutory Requirements – Rule 4

a)Contents of a Summons (Rule 4(a)(1)) – A summons must:

  1. Name the court and the parties;
  2. Be directedto the defendant;
  3. State the name and address of the plaintiff’s attorney or – if unrepresented – of the plaintiff;
  4. State the time within which the defendant must appear to defend;
  5. Notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;
  6. Be signed by the clerk; and
  7. Bear the court’s seal

b)Service – Rule 4(c)

  1. In General. A summons must be served with a copy of the complaint.
  2. By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.
  3. By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court….

c)WaivingService – Rule 4(d)

  1. Plaintiff may send defendant a request for waiver of service via first class mail or other reliable means. Plaintiff must send two copies of the waiver and a copy of the complaint.
  2. Defendant has a reasonable time (at least 30 days) to waive service of process after the waiver and complaint is delivered
  3. A failure to waive service of process, without good cause, allows a court to impose (1) expenses incurred in making service and (2) reasonable expenses, including attorney’s fees,of any motion required to collect those service expenses
  4. If service is waived in a timely manner, the defendant has 60 days to answer the complaint (instead of the usual 20 after service is performed)

d)Rule 4(m) – D must be served within 120 days after the complaint is filed. If not served in this time period, complaint will be dismissed without prejudice

  1. PersonalJurisdiction
  2. Analyzing Personal Jurisdiction
  3. Is there aJurisdictional Statute?

a)Federal Personal Jurisdiction – Rule 4(k)

  1. The District Court will use the same laws as the state statute in which the District Court sits

b)Statutory Limits on Jurisdiction

  1. New York Rule: A tort is deemed to have been committed within the state only if the tortious act or omission itself, and not merely the injury resulting therefrom, occurred in the state (Feathers)
  2. Illinois Rule: A tort resulting in damage or injury within the state is deemed to have occurred insidethe state regardless of where the tortious act or omission took place (Gray vs. Am. Radiator)
  1. Due Process:
  2. Traditional Bases

a)Presence (transient jurisdiction)

b)Property

  1. Anti-Cybersquatting Exception to Property
  2. Anti-cyberquatting statute gives a trademark owner the right to sue owners of domain names that infringe their property rights by allowing in rem jurisdiction in the place of domain name registration in the absence of any other jurisdictional basis

c)Domicile

  1. Natural Persons–Citizenship –uses common law definition (two elements)
  2. Residence (physical element)
  3. Intent to stay (mental element)
  1. Domicile is retained until both elements change
  2. Corporations:
  3. State(s) of incorporation

d)Consent

  1. Ways to waive personal jurisdiction
  2. (1) Contractually (dictum in BKing)
  3. (2) Inaction: Failure to challenge personal jurisdiction
  4. (3) Action: By appearing before the court
  1. GeneralJurisdiction

a)Continual and SystematicContacts

  1. Contacts with the forum are so pervasive that the corporation is subject to jurisdiction in the State’s courts no matter where in the world the claim arises (Compare Helicopteros with Perkins)
  2. Possible factors to examine:
  3. Office locations
  4. Location of company files
  5. Location of Director’s meetings
  6. Location from which correspondence is carried out
  7. Location from where salaries are distributed from
  8. Location of banks where payments are sent
  9. Location of supervising (or supervised) activities
  10. Location of retail stores or distribution centers
  11. Advertising in forum
  12. Recruiting from forum

b)Fairness (balancing test)

  1. Burden on D [AGAINST]
  2. Forum interests
  3. Plaintiff interest
  4. System Convenience
  5. Impact on Substantive Policy
  1. SpecificJurisdiction

a)MinimumContacts

  1. Claim arises out of contacts with the forum State
  2. Purposefully direct activities to the forum state; or
  3. Stream of Commerce theory (Three competing theories in Asahi)
  4. O’Connor:The action must be purposefully directed at the forum state
  5. Brennan: Any manufacturer in the stream of commerce is liable to suit in the state of the ultimate buyer because manufacturer receives a benefit from the forum state. (See Gray v. Am. Radiator)
  6. Stevens: Constitutional determination that is affected by (1) volume, (2) value, and (3) hazardous character of the components
  7. Contract, look at: (BKing)
  8. Prior negotiations (what happened during negotiations)
  9. Language of the contract
  10. A choice of law provision alone is not sufficient to establish personal jurisdiction
  11. Expected future consequences (what did they expect after contract was signed and ratified)
  12. Actual course of dealing (what actually happened and what did parties actually do)

b)Fairness (balancing test)

  1. Burden on D [AGAINST]
  2. Forum interests
  3. Plaintiff interest
  4. System Convenience
  5. Interstate judicial system’s interest in seeking the most efficient resolution to the controversy
  6. Ex. Location of witnesses, police, evidence, doctors, scene of accident, etc…
  7. Impact on Substantive Policy
  8. The shared interest of the several States in furthering social policies
  9. Must consider the social effects (where applicable) that personal jurisdiction will have on other areas of the law (Kulko v. Superior Court)
  1. Internet Jurisdiction

a)ZippoTest (Zippo)

  1. Interactivity test, sliding scale from “passive” to “interactive”
  2. Measures the activity of the site owner
  3. Passive – site owner may only post information to website
  4. Interactive – site owners engage in repeated contacts with forum residents over the internet

b)TortiousEffects Test (Calder)

  1. First apply Zippo, if “passive” no jurisdiction, if “interactive” then apply Calder test
  2. Whether defendant “expressly aimed” their conduct at the forum state
  3. Tests whether the forum is both the (1) focal point of the story and (2) the harm suffered
  4. Factors include:
  5. drawing sources from forum
  6. activities of the target within the forum state
  7. directed conduct at residents of forum state
  8. knowing forum state will bear the brunt of the harm
  9. targeting a reputation within the forum

c)Must still examine fairness (balancing test)

  1. FederalCourtPersonalJurisdiction– Rule 4(k)(1)(A)-(C)

a)Serving a summons or filing a waiver of service established personal jurisdiction over a defendant:

  1. Who is subject to jurisdiction in a court of general [state] jurisdiction in the state where the district court is located (Rule 4(k)(1)(A))
  2. Who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued (Rule 4(k)(1)(B))
  3. When authorized by a federal statute (Rule 4(k)(1)(C))
  1. SubjectMatterJurisdiction
  2. Alienage Jurisdiction – § 1332(a)(2)-(3)
  3. Must meet amount in controversy requirements (greater than $75,000)
  4. § 1332(a)(2) – citizens of a State and citizens or subjects of foreign states
  5. § 1332(a)(3) – citizens of different States and in which citizens or subjects or foreign states are additional parties
  6. Diversity Jurisdiction – § 1332
  7. AmountinControversy

a)Amount must be in excess of $75,000 (ie. $75,000.01) exclusive of interest and costs

  1. Diversity of Citizenship [based on when the lawsuit is filed]

a)Citizenship of Natural Persons – two elements

  1. Citizen of the United States (or resident alien); and
  2. Domiciliary of the State
  3. Domicile – (1) residence; and (2) intent to stay
  4. A resident alien is a citizen of the state where they are domiciled

b)Citizenship ofCorporations – § 1332(c)

  1. State(s) of incorporation (any and all); and
  2. State of principal place of business
  3. Nerve Center Test – corporate HQ (formalistic)
  4. Office from which business is directed and controlled
  5. Place of Activity Test (Muscle Test) – center of gravity of activity (formalistic)
  6. Factors:

1)Location of operations

2)Location of employees

3)Location so distribution facilities

4)Location of tangible and real property (warehouses, production, refineries, plants, etc…)

  1. Total Activity Test – balances nerve center and place of activity (holistic) –
  2. When the operations are far flung, the sole nerve center is more significant in determining principal place of business (nerve center dominates)
  3. When the sole operation is in one state and executives are in another, then the place of activity is most significant (place of activity dominates)
  4. When the activity of a corporation is passive and the “brain” is in another state, then the “brain” is given greater significance, seek out “center of gravity” (nerve center dominate)

c)Citizenship of Non-Incorporated Businesses