Civil Procedure I - Fall 1999 - Prof. Buss Joseph Ferraropage 1

Civil Procedure I - Fall 1999 - Prof. Buss – Joseph FerraroPage 1

Civil Procedure I

Fall 1999 - Prof. Buss

Joseph Ferraro

I.Service of Process - FRCP 4

Service of Process is often used to refer to the delivery to a party or witness of various court orders required by the relevant rules of law to be served upon him, including subpoenas, writs, and other orders that are entered in the course of litigation. Issue here is initial notice.
14th Amendment Due Process Notice Rule (Mullane v. Central Hanover Bank):

Reasonable efforts to provide notice. Notice must be reasonably calculated, under all circumstances, to inform interested parties of the pendency of the action and afford them an opportunity to present their objections (appear & be heard). Must be inside constitutional minimum.

Purpose - assure that s have a chance to respond, highlights purpose of rules in general: To commence the

“just speedy and inexpensive determination of actions” – FRCP Rule 1

Considerations:
Speed – interest of P to commence action
Quality – interest of D, fairness (justice for D), interest of P too  avoid risk of mistake & keep process moving

D. Factors: Process requires efficiency

1) Reliability (P -- probability)

2) Cost (C): $$ of delivery & redelivery and passage of time (e.g. landlord rent loss in Greene due to

cumbersome service)

3) Interests at stake (I)

E. Formula: insufficient if Calternative means - Ccurrent means < (Palt - Pcur) (I)

(increase in cost) < (increase in reliability times interest at stake)

F. Notice in Greene how procedure is important because procedure can always affect the substance of a case.

Case - Greene v. Lindsay - Supr.Ct. - Posting of summonses on apartment doors in eviction actions, pulled down in Ky. housing project by kids. Due Process requires that means of process be “reasonably calculated under all the circumstances” (RCUAC) to give notice to s. “Merely posting notice on an apartment door does not satisfy minimum standards of due process. S.Ct. held that due process must go further than posting, perhaps mail, though S.Ct. cannot say what means – dissent attacks superiority of this method. , state deprived class s of property w/o due process of law and posting statute = unconst.

O’Connor dissent: inadequate record to overturn Ky. statute as unconst. w/o better proof--conflicting testimony.

Mail problems: 1) not 100% reliable, 2) proof of service missing [get response even with waiver 4(d)(2)]

Examples – (1) E-mail service: would that be enough? Decent reliability (P) but not sure we’d get the right person: name issue under 4(a); (2) parking ticket on windshield

G. FRCP 4 – Summons: The What, Who & How

4(a): The Form(Contents) – clerk signature; seal of court; ID court & parties; directed to state name & address of P’s attorney or P is not represented; time w/in which D must appear; notification of judgment by default if no appearance.

4(b): Issuance– Upon or after filing complaint, P can present summons. If OK clerk will sign and copy sent to defendant(s).

4(c)(1): What docs? Summons & complaint served together. P responsible for furnishing 120 days after filing(m).

4(c)(2): Who serves? Service effected by any person who is not a party and is at least 18.  can request a U.S. Marshall or other specially appointed officer.

4(d)(2): Waiver of Service Process – Whoever is subject to service “has a duty to avoid unnecessary costs of serving the summons”  rare ethical component. Can do this through solicitation of waiver of all technicalities by sending defendant 2 copies of notice of action & request of waiver of formal service of summons & complaint.

To avoid costs, notice and request to waive must be:

(A) in writing and addressed to 

(B) sent via 1st-class mail or “other reliable means”

(D) inform D of consequences of compliance & failure to comply

(E) include date on which request sent

(F) allow D reasonable time to return waiver (30 days from date)

(G) give D extra copy of notice & request & prepaid means of compliance

If D fails to comply with waiver, court imposes costs imposed in effecting service on D unless good cause for failure be shown. [Also see 4(d)(5)]

4(d)(3): Response Reward – If D timely returns waiver, gets 60 days rather than usual 20 to respond to complaint.

4(d)(4): Waiver, cont. When P files waiver, action proceeds as if summons and complaint had been served & no proof of service required.

4(d)(5): Failure to comply, cont. Costs for non-compliant D = cost of effecting service, w/ costs, incl. reasonable attorneys fees, of any motion required to collect costs of service.

4(e): How?,Service on Individual Defendant: Service upon anyone from whom waiver not obtained, other than a child or an incompetent person, demands a response.

(1)Alternative to Below: Pursuant to law of the state in which district court is located OR in which service is effected – P can chose this or below, whatever he wants.

(2)3 Traditional Methods: (A) Delivering to individual personally, (B) leaving copies at dwelling or usual place of abode w/ person of suitable age and discretion residing therein, (C) to agent authorized by appointment or by law to receive service of process (corporations). REMEMBER WHO: 4(c)(2)

OTHER RULES NOT DISCUSSED IN CLASS

Issue: 4(e) as it is now is result of 1993 Amendment that did away with sharp distinction between state OR Federal rules choice. Now P has more flexibility to separate Who [(4(c)(2)] and How [4(e)(1)]. Feds say don’t have to worry about qualifications of state if don’t want to – can pick and chose state and Fed Rules for what you want.

II.History of Procedural System

Common Law Pleading

Derived from system of medieval English government
Basic premise: royal judicial power limited, king’s courts the extraordinary outside everyday courts
First has to explain why grievance one of concern to the king – came to be crimes against the peace. Opened door for certain forms of civil liability. Trespass vi et armis – any wrong with force of arms. When had this, breached peace and, therefore, had lay under jurisdiction of king’s courts
After establish jurisdiction, then state the claim – could cause what seemed like repetition in pleading. [Like F.R.C.P 8(a)]
Gradually such recitations that gave case king’s court jurisdiction became formulas bearing little relationship to facts of the suit.
After all this done, royal court had to decide what to do with case.
Court would separate 2 kinds of disputes
those focusing on law – settle by judges
those focusing on fact – settle by jury

Unlike now, this meant pleading forced parties to stake whole case on either law or fact. Went from oral to written process.
Meant limited # of responses to allegations:
Jurisdiction challenge – “Not here”
Pleas in suspension – “Not now”
Pleas in abatement – “Not like this”
None approach merits of case – dilatory pleas, (D) delayed suit, maybe permanently, but did not resolve merits
If these options didn’t work to get rid of suit, defendant then had to decide to rest on facts (deny them or plead additional ones) or law. Possibilities:

demurrer – “So what?” Concede truth, challenge legal sufficiency
traverse – “Not true” Concede legal sufficiency, deny facts
plea of confession & avoidance – “Yes, but” Concede law and fact, but allege additional facts that change their significance.

All called “peremptory pleas”

Great in theory but in practice created generally defined dispute. E.g. What if defendant didn’t commit armed violence? Common law begins expanding royal jurisdiction, stretching categories growing out of core cases. Sufficient closeness.

Each category had own Writ (P) – command to sheriff to summon defendant to respond to plaintiff’s grievance. Contained formula describing category of behavior court would concern selves with. They were:

trespass (& subcategories)
debt (recover sums owed)
covenant (contract breaches)
ejectment (recover land unlawfully occupied)
trover and replevin (unlawful takings of personal property)
assumpsit (breaches of oral contract)

In practice, preemptory pleas were not contained to rigid categories. French v. Baker example demonstrates addition of “special plea of self defense” combines traverse w/ confession and avoidance.

-“Replication de injuria” allowed plaintiff same latitude – courts OK with this once decided issues were factual, because up to juries to meddle through

Writ system created sophisticated and specialized conception of procedure in which each claim had own procedural form. Much attention to form of writ, e.g. of writ of debt, “wage of law” & “oath helpers” and move to a trespass writ – indebitatus assumpsit.

Equity – Procedure in Chancery Court

When common law could not bring lawsuit to satisfactory conclusion, move to Court of Chancery
Dealt with cases for which royal courts were not adequate – grew by happenstance.
Decreed many special remedies – specific performance and injunctions v. torts, also for fraud
Mortgage – right of redemption to debtor in pressing circumstances, when abused led to right of foreclosure for creditor – closed right of redemption
Chancery gave debtor credit for amount paid, lender had to give him that amount from sale proceeds.
Equity in property = debtor’s interest, court came to be known as court of equity, & doctrines those of equity
Trusts another procedural remedy
With no juries, chanceries relied on extensive written depositions –ancestor of modern discovery practice.
Brought about subpoena compelling testimony & joined all optimal parties
Suit in equity required both demonstration of royal jurisdiction AND that ordinary royal court did not offer adequate remedy, even if $$ damages (persists today)

Common Law v. Equity

Common Law Advantages
Defined dispute
Fast
Fair – very evenhanded if everyone follows same rules & keep out bias
Common Law Disadvantages
Skewed claim by forcing it into categories where it didn’t really fit, hiding nature of real dispute: Artificial simplification
Issues may be of fact and law
May exclude some valid disputes due to formality
Bad at gathering info before trial (discovery) to handle multi-party disputes
Equity Advantages
More fair, individualized results
Allows for complex cases of law and equity, not stuck in rigid formalism
Good at gathering pre-trial info and handle multi-party disputes
Equity Disadvantages
Cumbersome and takes forever
Allows too much discretion – uneven process allows for bias
Bad at producing complete resolution

Contributions of Both to Modern System

Common Law

Pleading procedure

Formal, set procedure: complaint, response, motions, etc.
Goal = to agree about nature of dispute
Properly frame/set up dispute for discovery
Categorical definition of legal claims

Summary Judgment

Legal decision only
Judge can clean up, throw out cases allowed in by generous pleading system

Equity

a.Discovery

Detailed, lengthy
Balances simplicity of pleading
Bad because expensive, time-consuming

Reform discovery? Decrease fishing, expense

Federal Rules combine elements of both, permitting extensive pre-trial fact gathering (discovery) and broadening joinder of claims

III.Code Pleading

Started in 19th Century, inspired by Populist sentiment to make law more flexible and accessible to the people.
States enacted statutes to govern the procedures in their courts – requirements are code pleading.
First was Field Code of 1848 in New York; still followed in states like NY, CA, IL
In those states must follow pleading rules set out in state’s “Code” but no technical language required
Abolished forms of action (strict legal theory) & eliminated law and equity distinction
Replaced form with Cause of Action = group of facts giving rise to one or more causes of complaint (whole

claim). Need to know substantive law to know what needs to be included.

E.g. Contract claim elements:

Binding K
Plaintiff performed
Defendant failed to perform

1-3 = Cause of Action

Requires allegation of facts, i.e. plead facts showing a legal right or wrong: gives D notice and allows court info

to allow it to strike or dismiss legally insufficient claims.

Complaint inadequate if:

1) fails to allege anything pertaining to elements of law in question (No facts and no conclusions of law )

2) states conclusions of law pertaining to an element but no facts (No facts, only conclusions) (Gillispie)

3) mentions fact that, even if proven, are not legally sufficient to satisfy elements of law (Yes facts &

conclusions but no match to a substantive claim)

Like old common law pleading:

1) have to have ‘right’ facts

2) couldn’t be too specific or vague

Case - Gillispie v. Goodyear Service Stores - Sup.Ct. of NC - NC = code pldg state. Trial ct. granted leave to amend b/c complaint was dismissed for failure to state fact sufficient for a cause of action. Pleadings must state facts and not conclusions of law. P must show facts sufficient to show D’s legal duty and its violation and injury to P so judge & D may know the right D asserts. No facts upon which the legal conclusions of negligence can be based or predicated stated No names even mentioned!  there is no factual basis to which court can apply law.

Marked a shift in requirements of pleadings = shift in function (pleading stage changed from central to content of litigation to merely giving notice to Ct. & s (discovery became central to litigation)

Federal Notice Pleading (1938) - FRCP 8(a) & FRCP 8(e)-8(f)

Federal Rules of Civil Procedure (FRCP) govern procedure in all federal district courts and many states that adopted them.
Comparison with Code Pleading

Similarities with Code Pleading

Merger of law and equity – FRCP 1
Gets away from arcane complexities & technicalities of common law and equitable proceedings.
Clear & simple articulation of legal grievances
Important to know substantive law in question in order to draft a complaint that addresses all elements of the law & that will survive a motion to dismiss (demurrer).

Primary difference: FRCP 8 allows pleading of conclusions of law. (not stated explicitly)

Distinction between allegations of fact and conclusions of law can be blurry (hazard of Code Pleading)
Still, Courts applying rules will reject some complaints as too conclusory, despite Rules’ allowance of pleading of some conclusions (hazard of pleading under the Rules)

A complaint that is sufficient under the Code will satisfy the Rules.

The Rules allow for pleading of conclusions that is not permitted under the Code.

Complaint inadequate if:

1) fails to allege anything (facts of conclusions of law) re: element of law,

2) (No facts, just conclusions) N/A

3) mentions fact that, if proven, are not legally sufficient to satisfy elements of law.

NOTE 1: Complaint 2 from Code Pleading not inadequate so long as conclusions alleged are sufficient to inform defendant and the court, in general terms, of nature of the claim.

NOTE 2: Defects 1 & 2 can be corrected by redrafting complaint. Defect 3 fatal – reveals P has no case. Courts can’t always tell if Defect 3 is there, so might grant leave to amend. After this, court may dismiss case with prejudice (prevent refilling) based on determination there is no set of facts/conclusions that P can allege that are legally sufficient.

6. Conley v. Gibson standard:

1) S.Ct. said some pleading of conclusions of law = accepted under FRCP. 2) “Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the  can prove no set of facts in support of his claim that would entitle him to relief.”

3) Very generous standard for pldgs under FRCP.

7. Such notice pleading is possible b/c liberal opportunity for discovery & pretrial procedures to define more narrowly the disputed facts & issues.

8. Generally = abuse of discretion for Ct. to fail to grant leave to amend complaint on 12(b)(6).

9. General rule of thumb = cover all elements of claim with concl. or, if have them, facts to be safe

Notice Pleading in General

(Rule 8(a)(2) = “Short and Plain Statement of Claim”)

Purposes

Just give notice to D

Underlying facts covered in discovery.
Formulation of issues for trial covered in pre-trial conference.
Weeding out sham claims is covered in summary judgment

Expose areas of controversy

Principles

Spirit of FRCP is to facilitate a proper decision on the merits. Technicalities should not thwart this. But we still have questions of detail!
Don’t dismiss claims altogether unless can’t prove beyond doubt that there is no claim for relief based on the facts. At least dismiss with leave to refile

Rannels v. S.E. Nichols = jeans/bad check: Inartful drafting

Factual allegations should be construed liberally to support elements of “malicious prosecution” claim. These are:

1)favorable termination of a criminal procescution

2)absence of probable cause for criminal prosecution

3)defendant’s malice in pursuing criminal prosecution

Case -Rannels v. S.E. Nichols, Inc. - U.S. Dist.Ct. for E.D.Pa. – ’s claim for malic. prosec. re: bad checks must only state gen’l facts suffic. to present elements neces. to support cause of action. Dist.Ct. erred in dismissal via 12(b)(6) for failure to state facts not concl., acc. to Ct.App., thereby imposing Code pldg req. on FRCP.

In Practice

Conclusions of law are permitted, but concept of notice encourages giving enough information (i.e., facts) to give a sense of the circumstances from which the grievance arose

Duncan v. AT&T = jumbled race discrimination claim w/no statement of race – substantive flaw!! “When a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.” – O’Brien v. DiGrazia

Facts must be clearly stated and sufficient to back up elements of claim

Case - Duncan v. AT&T (pp. 405-407) - S.D.N.Y. - Still have to worry about defects of type (1)--where allege no fact or concl.--under the FRCP. Ct. held poorly pleaded claims can’t be accepted as true if: (1) so poorly composed as to = illegible (grammar, etc.) and 2) so baldly conclusory as to fail to give note of the basic events and circumstance of which  complains. Duncan’s complaint deficient in both respects. Dismissed by FRCP 12(b)(6) b/c  failed to even state her race in §1981 claim & facts so obscured that Ct. can’t even suggest corrections. Must at least broadly plead facts or concl. to satisfy each element of the charge.

P must give enough info to allow D to frame an answer and commence discovery

Remember Gillespie v. Goodyear = trespass claim w/no specific facts

Legal conclusions only. No identification of who, where or when incident took place. Impossible for D to respond to or to commence discovery

Notice Pleading in Practice: The Complaint

3 Elements

Three parts must be satisfied -- Rule 8(a)

(1) Grounds for jurisdiction

(2) Short and plain statement of the claim – Rule 8(a)(2)