Civ Pro I, Autumn 1998
Civil Procedure I Outline
Professor Buss
Autumn Quarter 1998
I. An Introduction to Procedure: Service of Process
A. Greene v. Lindsey (eviction notices posted on doors, not mailed or in person)
1. The SC said that KY statute permitting service of process via posting on an apartment door in forcible entry or detainer actions does not satisfy the Fourteenth Amendment’s Due Process Clause. (Posting alone is not enough.)
2. Factors affecting the amount of process required:
a. Reliability (maybe mail is more reliable than posting in 20th century)
b. Efficiency (don’t want to overburden court resources)
c. Expense (want to be able to afford service for good claims)
d. Stakes (eviction notices are more important than traffic tickets)
3. What is a reasonable cost?
a. Let C=cost, P=Probability of error, I=magnitude of interest involved.
b. Then, to decide if a new procedure is better than the current procedure,
we determine if: C2 – C1 < (P1-P2)·I
c. Quantifying this could be hard, maybe the legislature should do it.
4. What’s the overall rule?
1. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane 339 U.S. at 314, cited in Greene.
2. Who can serve? See Rule 4(c) and (e). Note that who and how can now be split (federally ok who with a state ok how), but why not just do it all the same way for safety’s sake?
i. Summons should be served with a copy of the complaint.
ii. Anyone over the age of 18 who is not a party may serve.
3. How can process be served? See Rule 4(e)(1) and 4(e)(2).
i. In accordance with state rules.
ii. Or by handing a copy to in person, leaving copies at ’s home with an adult, or by delivering a copy to ’s authorized agent.
5. General considerations
a. This case is assigned to make us think about policy implications of various process rules, not to make us learn how to serve a summons or why we care about due process.
b. Procedural posture is key in these cases (here, Lindsey was suing from a writ of summary judgement entered for ).
c. Dates matter, since often a lot of time passes between a case and appeal.
B. Relevant Rules
1. Rule 1: Scope and Purpose of Rules
The Federal Rules of Civil Procedure govern procedure in US district courts in all civil suits. They are to be administered in a speedy and inexpensive way.
2. Rule 2: One Form of Action
There is one form of action, known as civil action. This combines courts of law and equity into one court.
3. Rule 3: Commencement of Action
A civil action is commenced by filing a complaint with the court.
4. Rule 4: Summons
a. Form - The summons must contain:
i. Signature of a clerk, bear the seal of the court, identify the court and parties, be directed to , and state the name of ’s attorney.
ii. Time within which must appear and defend
iii. Consequences of a failure to do so.
b. Issuance: After filing the complaint the may present a summons to the clerk for signature. The summons is served to the if it is found to be in order.
c. Service with Complaint:
i. Summons is served with a copy of the complaint.
ii. Summons can be given by anyone not a party who is 18 or older. Alternatively a US marshal can give the summons, or other officer appointed by the court.
d. Waiver of Service; Duty to Save Costs of Service; Request to Waive
i. A who waives a summons does not waive an objection to the venue or jurisdiction of the court.
ii. No unnecessary costs. To save money a may notify a of the commencement of action so that the can waive service of summons.
a. Summons shall be in writing
b. Shall be sent by first class mail or other reliable means
c. Shall be accompanied by a copy of the complaint
d. Shall inform the of the consequences of compliance
e. Shall set forth the date on which the request is sent
f. Shall give the time to return the waiver, 30 days within the US and 60 days outside the US
g. Shall provide the with an extra copy of the notice
iii. If fails to comply with the request the court shall impose subsequent costs incurred on the unless shows good cause for the failure.
iv. After returns a waiver can wait to file an answer to the complaint for 60 days in the US and 90 days outside the US
v. When files s waiver of service with the court, the action shall proceed as usual
vi. Costs imposed on under paragraph 2 include attorney’s fees
(Note that the waiver streamlines the process, is less expensive, and encourages to work with a little. gets more time to answer if waives service.)
e. Service Upon Individuals Within a Judicial District of the United States
Unless otherwise provided service from a waiver may be effected in any US judicial district
i. Pursuant to the law of the state in which the court is located
ii. By delivering a copy of the summons and of the complaint to the individual personally, or by leaving copies at the individual’s dwelling.
C. “A Survey of the Civil Action”
1. Assigned as background reading, not for class discussion.
2. Civil procedure = the rules courts use by courts to resolve disputes before them.
3. The line between substantive law and procedure is rarely clear.
4. How to sue someone:
a. Pick the right court (limited choice)
b. Commence the action (serve the summons as above)
c. Pleading (alleging the wrong done, some jurisdictions want legal theories only, others want theories and facts)
d. Response (motion to dismiss, challenge venue, etc.)
e. Discovery (depositions, interrogatories, orders to produce documents)
f. Summary Judgement (no factual disputes, as a matter of law)
g. Trial
i. Jury selection
ii. Presentation of evidence
iii. Jury instructions
iv. Verdict (general, with interrogatories, special)
v. Judgement (final determination of a case, unless there’s appeal)
a. If wins - takes nothing
b. If wins - $, declaration of rights, injunction, recovery of property, usually just money changes hands
c. Enforcement – if $, by writ of execution, if injunction, by holding in contempt if he does not comply
h. Post-trial motions (new trial, JNOV)
i. Appeal (one as a matter of right, second appeal for limited grounds)
i. Affirm, reverse or modify lower court
ii. Appeals lie from final judgements only
5. Remedies – not always enforceable, not always greater than the legal costs.
II. Pleading
A. History of Pleading
1. Historical Purposes
a. Give notice of the nature of the claim
b. State the relevant facts
c. Narrow the issues
d. Serve as guides to discovery and trial
e. Expose insubstantial claims
f. Separate legal and factual issues
g. Today, only the first and second (to some extent) of these are relevant
2. Courts of Law (royal court, power comes from the king)
a. Good at defining the dispute very specifically
b. Bad at:
i. Gathering (accurate) factual information
ii. Only two parties at a time, can’t sue more than one person
iii. No subpoena powers to compel witness testimony
iv. Monetary relief only, no injunctive relief
c. Service was done via attachment (i.e. the sheriff grabbed the guy)
d. Pleading was very formal, structured, occasionally at expense of facts
i. Desire to get the case into royal courts (disturbance of the peace)
ii. Designed to narrow the case to one question:
a. Question of fact => Jury or other fact-finder decides
i. Oath helpers
ii. Trial by battle
iii. Trial by ordeal
b. Question of law => Judge decides
e. Types of responses to pleadings
i. Dilatory pleas (responses delaying suit, didn’t address the merits)
a. Jurisdictional challenges (“Not here – wrong court.”)
b. Pleas in suspension (“Not now – wait.”)
c. Pleas in abatement (“Not like this – defective pleading.”)
ii. Peremptory pleas (forced a choice on merits between law/facts)
a. Demurrer (“So what? It’s not illegal.”)
b. Traverse (“Not true facts.”)
c. Confession and avoidance (“Yes, but it was ok.”)
f. Types of acceptable writs
i. Trespass (several subcategories)
ii. Debt (recover sums owed)
iii. Covenant (breach of written, sealed contract)
iv. Ejectment (recover unlawfully occupied land)
v. Trover and replevlin (unlawful takings of personal property)
vi. Assumpsit (breach of informal, oral contracts – “he promised”)
3. Courts of Equity (a.k.a. Chancery, also a royal court with power from the king)
a. Good at:
i. Gathering information
ii. Suing multiple parties
iii. Remedies included specific performance decrees, injunctions
iv. Ruled on contract cases involving fraud, mortgages
b. Bad because attempts to find a complete solution often led to long trials with uncertain results.
c. Job was to deal with cases not adequately handled by regular courts
4. Differences between the two systems
a. Chancellors sat without juries
b. Pleadings were enormously detailed in Chancery
c. Written depositions (Chancery), not live witness testimony (law)
d. Testimony was done under oath in Chancery
e. Had subpoena power to compel testimony (Chancery)
5. Both types of pleadings had to include jurisdictional allegations
B. Code Pleading
1. By the 19th century, pleading became incredibly complicated and confusing
2. States adopted the Field Code, rules of pleading designed by David Field.
a. Simplified pleading
i. State “dry, naked facts” instead of fitting facts to a writ
ii. One cause of action, no need for various forms of action
iii. Regardless, the facts must match with a substantive legal claim.
b. Merged law and equity into one system
c. Reforms did lead to some problems
i. Substantive law didn’t change when pleading did, so if alleged the elements of a fraud claim, it was treated only as fraud, even if proved breach of contract.
ii. What’s a fact and what’s a conclusion?
d. How could a code pleading fail?
i. Fail to allege facts or conclusions necessary to meet the elements of the claim.
ii. Allege conclusions, but fail to allege facts. (Rannels trial court)
iii. Full factual allegations, but doesn’t meet elements of a claim because the facts don’t match. (Yeazell’s take on Rannels, given the trial court’s interpretation of the bad check law.)
e. Amendment is usually allowed for errors of types i. and ii. A defect of type iii. usually results in dismissal.
e. Many states (e.g. CA, IL) still use code pleading.
f. Gillispie v. Goodyear Service Stores (code pleading case)
i. The trial court held that ’s complaint did not contain sufficient facts to constitute a cause of action. The court upheld the lower court’s sustaining of defendants’ demurrers.
ii. Proof that it is not enough to allege conclusions. Facts are required to:
a. Allow judge to assess if there’s a sufficient legal claim
b. Allow to identify what the dispute is about.
iii. Defect was of type (ii), amendment was permitted by the court.
C. Federal Rules of Civil Procedure
1. Adopted in 1938, with an eye to fixing some problems of the Field Code.
2. Combines features of both common law and equity pleading.
3. Pleading is no longer the hinge of procedure, it’s a gatekeeper.
4. The SC has set a broad standard as to what counts as a good pleading. (See Note 2 on page 404, Conley v. Gibson.)
5. Rule 8: General Rules of Pleading (10/14)
a. Claims for Relief – a pleading that lays out a claim for relief needs:
i. A statement on the grounds of the court’s jurisdiction,
ii. A statement of the claim entitling the pleader to relief,
iii. A demand for judgement.
e. Pleading to be Concise and Direct; Consistency
i. Each pleading shall be simple, concise and direct.
ii. A party may set forth two or more statements of claim or defense. The insufficiency of one claim does not necessarily lead to the insufficiency of the other(s).
f. Construction of Pleadings – All pleadings will be constructed to do substantial justice.
D. 12(b)(6) challenges, or “How many facts are enough?”
1. Duncan v. AT&T (racial discrimination)
a. Court held that there just weren’t enough facts. ( doesn’t mention her race, for example.)
b. Baldly conclusive language is too much – problem of type (i).
c. The court does not deny amendment, but says that it would be futile.
2. Rannels v. Nichols, Inc. ($2 defective jeans)
a. Plenty of facts were alleged, but the appellate court was checking on the legal sufficiency of the claim.
b. The district court saw a problem was of type (ii), alleging conclusions, not facts.
c. The appellate court said the district court was too picky, asking for too many details. The real problem was of type (iii), a question of law.
3. Rule 12: Defenses and Objections-When and How Presented (10/15)
b. How presented- every defense shall be asserted in the responsive pleading if required, except the following, which may be made by motion
i. Lack of jurisdiction over subject matter
ii. Lack of jurisdiction over person
iii. Improper venue
iv. Insufficiency of process
v. Insufficiency of service of process
vi. Failure to state a claim upon which relief can be granted (Can be treated as SJ and disposed of according to Rule 56)
vii. Failure to join a party under rule 19.
These are to be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with other defenses or objections.
e. Motion for a more definite statement- this may be invoked when a response is required and initial pleading is too vague so that party cannot be reasonably expected to respond- there are 10 days to amend complaint before it is stricken
f. Motion to strike- w/in 20 days after pleading court may order stricken from pleading insufficient defenses, or other immaterial matters
E. Rule 11 Challenges
1. Any signed filings are subject to Rule 11 challenges, not just pleadings.
a. Sanctions are discretionary, not mandatory.
b. Courts prefer to use non-monetary sanctions like censure, admissions, referral for disciplinary action, suppression of improper evidence.
2. Business Guides v. Chromatic Communications Enterprises (phone book seeds)
a. The court found a Rule 11 violation, holding that frivolously presented facts are subject to penalties. The first mistake was the company’s (lawyers asked for TRO in good faith), but lawyers filed an amended report without even investigating.
b. The case was dismissed with prejudice (death sentence) because the lack of research was such a grave error.
3. Gerbode v. RTC (crazed anti-church litigation)
a. (Gerbode) sought attorney’s fees from (RTC) under Rule 11.
i. This all started when sued (Church of the New Civilization, Gerbode) for RICO violations. That case was dismissed
ii. Problem – Rule 11 became effective the day the underlying case was dismissed.
iii. Problem - say that case should not be considered because it violated the safe harbor provision (see below). This is irrelevant, because the purpose of that provision is moot (case dismissed).
b. Safe harbor provision
i. A party wishing to file a Rule 11 claim must first give notice to the other party as to why the motion in question offends.
ii. After 21 days of service of the offending motion, if it has not been amended or withdrawn, the party may file the Rule 11 claim.
iii. This doesn’t help much, though, since they must respond to claims within 20 days (unless offered to waive service and has accepted, giving 60 days to answer).
4. Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to the Court, Sanctions (10/19)
a. All official documents need attorney’s signature (if none, then party’s), address and phone # of signer.
b. By presenting documents to the court, party or attorney is certifying:
i. The purpose is proper,
ii. Claims are warranted by existing law or by possible reversal or modification of old one, or new law.
iii. Allegations have evidentiary support or are likely to have such support after further investigation or discovery.
iv. Denials are warranted on the evidence, or reasonably based on a lack of information or belief
c. Sanctions- if court finds b violations after notice and reasonable opportunity to respond, court may impose sanctions on party responsible.
i. Initiated by motion- separate from others, in conjunction w/ Rule 5, and has to be after 21 day “grace” period. Attorney’s fees when warranted to the prevailing party.
ii. Initiated by court- order to show cause if apparent violation of b.
iii. Limitations- should be only to deter repetition of conduct of similarly situated persons. No monetary penalties until party is given a chance to remedy alleged violation. Court has to explain violation to parties.
d. None of this applies to disclosures and discovery requests, responses or objections, and motions that are subject to Rule 26 through 37.
F. Particularized Pleadings
1. In some circumstances, pleadings must meet a heightened standard.
2. Leatherman v. Tarrant C’nty Narcotics Unit (see page 434)
a. Here, the SC held that courts could not require more specific pleading in civil rights cases.
b. This holds even in cases when individuals in government wish to invoke a qualified immunity defense to claims of civil rights violations.
c. Qualified immunity is the right of individual government workers “not to stand trial” in cases of alleged civil rights violations if the actions were taken under a reasonable misapprehension of the law.
3. Schultea v. Wood (police chief gets fired for investigating city council)
a. The Fifth Circuit announced a two-tiered system of pleading for cases where a government official might invoke a qualified immunity defense.
i. The first pleading could be general, meeting the Rule 8 standard, but it has to have more than just conclusions.
ii. If the response alleges “QI,” then the court may require to amend and reply.
iii. The amendment must plead more than conclusions, and have enough facts to sustain a motion to dismiss under Rule 12(b)6, tailored to engage the QI affirmative defense.
b. There is a thin, but apparently constitutionally acceptable line between Leatherman and Schultea.
G. Burden of Pleading
1. Generally, bears the burden of proving elements of the pleading.
a. In close cases (50/50), loses.
b. The burden of proof often follows the burden of pleading.
2. Gomez v. Toledo (Puerto Rican police officer)
a. is not required to allege bad faith in a pleading bringing suit against a public official who might invoke a qualified immunity defense.
b. “ would have better information, make plead it” does not normally hold. However, only would know if she or he acted in bad faith or not (part of the QI defense is acting under a misapprehension of the law), so it makes sense to allocate the burden of pleading elements of a QI defense..
H. Answers
1. Pre-answer motion (7 claims can be brought in this kind of motion)
a. 4 must be brought right away (in pre-answer motion, if there is one, or in the answer itself), or are waived forever