CIVIL PROCEDURE II/Spring 2008/Grebeldinger/Syllabus 1

Please prepare one numbered assignment per class, unless directed otherwise.

Introduction; Client Interview

Assignment 1:

Civil Procedure II Info Sheet.

Basic Civil Trial Process and What They Didn’t Tell You in LawSchool.

$We will not discuss these articles in class, but they help explain how this course will be taught.

Overview of Religious Accommodation under Title VII.

$You are planning to meet with prospective client Paul Perry. All you know about the case is that he was allegedly terminated from Deed Corp. because of his religion. Prepare a list of 12 questions to discuss with Perry. Not all of these questions should deal with the facts of the case – there are other considerations.

The Complaint; Motions in Response to the Complaint

Assignment 2:

FRCP 1 and FRCP 2.

$A civil action consists of one or more claims or causes of action, which may be legal or equitable. What is a legal claim? What is an equitable claim?

$Consider the goals of the FRCP. Are they realistic? Are they in conflict?

FRCP 3.

$The filing of the complaint with the court stops the running of the statute of limitations for a federal question claim. However, for a state-law claim (whether diversity or supplemental), look to state law. State law might require both filing with the court and service on the opposing party to stop the running of the limitations period.

FRCP 7 and FRCP 8(e).

$What documents are pleadings?

$Contrast a pleading from a motion.

$A party “moves the court” or “files a motion,” but he does not “motion” for something.

$How should a court construe all pleadings?

FRCP 7.1.

$What is the purpose of this Rule?

FRCP 8(a) & (d).

$What must a complaint (or any other pleading seeking relief) contain? Commit to memory the FRCP 8(a) language.

$Why should a party be able to raise alternative or inconsistent claims or defenses?

$The complaint typically must be served within 120 days of filing. FRCP 4(m).

Rule 8(a) allows notice pleading, per Conley v. Gibson (U.S. 1957). 5 Wright and Miller, Federal Practice and Procedure § 1215 explains:

* * * [I]t is clear from the Court’s opinion in that case that the federal rules require the complaint to give defendant “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Implicit in this passage is the notion that the rules do contemplate a statement of circumstances, occurrences, and events in support of the claim being presented. Of course, great generality in the statement of these circumstances will be permitted as long as the defendant is given fair notice of what is claimed; nonetheless, Rule 8(a)(2) does require that the pleader disclose adequate information concerning the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it.

Assignment 3:

FRCP 10.

$Understand the format required for pleadings.

$What is “adoption by reference”?

FRCP 83.

$Consider the importance of local rules, promulgated by each federal district.

$Consider the power of the judge in the absence of federal statute or local rule.

FRCP 84 and Form 11.

$Understand the importance of the FRCP’s Appendix of Forms.

Complaints in Hunt v. Nebraska Public Power District, United States of America v. City of Newton, and Smith v. XYZ, Inc.

$Consider how each complaint complies with FRCP 8 and 10. We will discuss the complaints paragraph by paragraph.

Assignment 4:

FRCP 12(b), (d), (g) & (h).

$Contrast a demurrer from a motion to dismiss.

$The demurrer was the antecedent to the modern Rule 12 motion to dismiss. If D demurred and lost, he was not allowed to contest the complaint’s facts. If the

demurrer was granted, P had no right to replead or amend her complaint.

$Know all the FRCP 12(b) bases for a motion to dismiss.

$Commit to memory the language of Rule 12(b)(6).

$What happens if a Rule 12(b)(6) motion contains material outside the pleadings?

$Parties may make several motions in one document, entitled “joint motion to . . .”

$What defenses are waived if not made in D’s first motion or pleading? What defenses may be raised as late as trial?

$What defense is never waived, even on appeal? Why?

FRCP 12(c).

$A Rule 12(c) motion is made by D after he has filed an answer. The motion is held to the same standards as a 12(b)(6) motion.

FRCP 12(e) & (f).

$A motion for more definite statement may be used in addition, or in the alternative, to a 12(b)(6) motion.

$When is a motion to strike properly used?

FRCP 9(b).

$What claims or defenses must be stated with particularity?

Swierkiewicz v. Sorema N.A.

$Contrast pleading requirements from the elements to be proven at trial.

$Understand the application of each FRCP cited by the Court in support of its holding.

Assignment 5:

Bell Atlantic Corp. v. Twombly.

$Why did the complaint fail to state a claim?

$How did the Court reconcile this decision with its rulings in Conley and Swierkiewicz?

Garcia v. Hilton Hotels International.

$The elements of a defamation claim are: (1) a false and defamatory statement about P; (2) published (orally or in writing) by D to another person; (3) causing harm to P.

$D raised two affirmative defenses. What were they?

$P’s complaint need not anticipate or rebut D’s affirmative defenses.

$D made four motions in response to the complaint. What were they?

$For each motion:

$Did the court grant or deny?

$What was the court’s reasoning?

Exercise A to be distributed in class: Draft Perry’s complaint.

Answer to the Complaint; Reply to the Answer

Assignment 6:

FRCP 8(b) & (c).

$Rarely will D “generally deny” the entire complaint. Why not?

$What are D’s options in responding to each allegation in a complaint?

$What if an allegation is only partly true?

$If the answer fails to deny an allegation in the complaint, what is the result?

$The answer must also contain affirmative defenses. FRCP 8(c) provides an illustrative (not exhaustive) list of 19 affirmative defenses.

$Students with last names beginning A-K must look up the meaning of the first 10 defenses.

$Students with last names beginning L-Z must look up the meaning of the next 9 defenses.

$If D files a 12(b)(6) motion to dismiss only part of a complaint, what should D do with respect to the other parts of the complaint?

Answers in Hunt v. Nebraska Public Power District and Smith v. XYZ, Inc.

$Consider how each answer complies with FRCP 8 and 10.

$Compare the format, style, and strategy of the answers.

Materials to be distributed in class: Perry’s complaint and defense interview notes.

Assignment 7:

Carefully read Perry’s complaint and defense interview notes. Consider how to draft an appropriate answer, including:

$How you would respond to each allegation in the complaint, paragraph by paragraph, sentence by sentence, and sometimes word by word.

$What defenses you would present.

FRCP 7(a) and FRCP 8(b)(6).

$When is a reply required under the FRCP?

$If P is not permitted to reply to D’s answer, what is the effect of D having the last pleading word via its answer?

Service and Filing of Post-Complaint Documents; Computing Time

Assignment 8:

FRCP 5 and FRCP 77.

$Generally, every pleading, motion, or paper filed by a party must be served on all other

parties.

$What are the accepted methods for serving all papers other than the original complaint?

$When is service by mail or electronic means considered complete?

$What is a certificate of service? For samples, see the Hunt and Smith answers.

$How does a party file a document with the court?

$How does the court serve its orders on the parties?

FRCP 6 and 2005 Advisory Committee Notes on FRCP 6(e) [now 6(d)].

$Understand how time is computed.

$Does the day of the triggering event count?

$When does/does not the last day of the designated period count?

$What if the designated period is fewer than 11 days? 11 days or greater?

$How might a party get an extension of time? Before the designated period has expired? After the designated period has expired?

$Understand the three-day addition.

Securities and Exchange Commission v. Wynne.

$Should the court have granted an extension of time for excusable neglect?

$Other courts have stricter standards. E.g.Dean v. Chicago Transit Authority (7th Cir. 2005) (“An attorney’s busy schedule, however, does not rise to the level of excusable neglect.”)

FRCP 12(a).

$When is D’s response (whether answer or motion) to the complaint typically due?

$Understand how the service of intervening motions alters the time periods.

Amendments to Pleadings

Assignment 9:

To gauge your understanding of D’s options, and the timing, in responding to a complaint, be prepared to answer the following questions:

$Assume that D moves to dismiss the complaint in its entirety pursuant to FRCP 12(b)(6).

$What is the deadline for serving the motion? FRCP 12(a)(1)(A).

$What if D cannot timely file and serve the motion? FRCP 6(b).

$What if D attaches exhibits, affidavits, etc. to the motion? FRCP 12(d).

$If the court grants the motion, what is P’s recourse?

$If the court denies the motion (at least in part) or postpones ruling on the motion, what happens next? FRCP 12(a)(4)(A).

$Instead, assume that D moves to dismiss or strike one claim in a multi-claim complaint.

$What, if anything, must D do regarding the other parts of the complaint? What is the deadline for service? FRCP 12(a)(1)(A).

$Instead, assume that D moves for a more definite statement. FRCP 12(e).

$What happens if the motion is granted? FRCP 12(e) & 12(a)(4)(B).

$What happens if the motion is denied or postponed? FRCP 12(a)(4)(A).

FRCP 15(a).

$Rule 15(a) allows amendment of pleadings, but not of motions or other papers.

$When may a party amend as of right?

$If a party cannot amend as of right, how may she be able to amend?

$How much time does the opposing party have to plead in response to an amended pleading?

Duda v. Board of Education.

$Why did P have an absolute right to amend the complaint?

$Review the difference between a pleading and a motion.

Innocent v. HK Hotels, LLC.

$What is the appellate court’s standard of review for the grant or denial of a motion to amend under FRCP 15(a)?

$Understand the Foman factors to be considered by a court in ruling on a motion to amend.

Assignment 10:

FRCP 15(c)(1).

$Distinguish the three circumstances in which an amended pleading will relate back to the filing date of the original pleading.

Miller v. American Heavy Lift Shipping and Nettis v. Levitt.

$Why was the FRCP 15(c)(1)(B) requirement of “conduct, transaction, or occurrence” met in Miller, but not in Nettis?

$Note the courts’ disagreement on the appropriate standard of review.

Bradley v. MacombCounty.

$Why was P able to use FRCP 15(c)(1)(C) to add a new party after the statute of limitations had run?

FRCP 15(d).

$Contrast an amended pleading from a supplemental pleading.

$What must a party do prior to filing a supplemental pleading?

Exercise B to be distributed in class: Solve problems re computation of time.

Rule 11

Assignment 11:

We will grade Exercise B in class.

FRCP 11 and Rule 11 and Other Sanctions.

$FRCP 11(a) & (d):

$What documents are covered?

$How must each document be signed?

$There is no general requirement for verification or affidavit. What are they?

$What aspects of litigation are not covered?

$FRCP 11(b):

$The Rule covers not only documents, but what else?

$The signature certifies four elements, after inquiry reasonable under the circumstances.

$What is a reasonable inquiry?

$Why are those four elements so important?

$What is a nonfrivolous argument? Contrast a good faith argument.

$FRCP 11(c):

$Why are sanctions allowed only after notice and opportunity to respond?

$If the court finds a Rule 11 violation, must it sanction the violator?

$Upon whom may sanctions be imposed?

$Understand the “safe harbor” provision in FRCP 11(c)(2).

$What types of monetary or nonmonetary sanctions might a court impose?

Assignment 12:

Shlikas v. WakeForestUniversity, Leuallen v. Borough of Paulsboro, and Chaplin v. Du Pont Advance Fiber Systems.

$Should courts treat pro se litigants more leniently for Rule 11 purposes?

$Which cases were decided by a Rule 11 motion? By the court acting sua sponte?

$What section(s) of FRCP 11(b) formed the basis of sanctions in each case?

$When should a court sanction the client, not just the attorney, for a Rule 11 violation?

$In light of Rule 11, what actions should P’s attorney undertake prior to filing a complaint? What actions should D’s attorney undertake prior to filing an answer or counterclaim?

Contrast a Rule 11 motion from a Rule 12(b)(6) motion.

Exaggeration is No Virtue, Moderation No Vice.

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