Civil Procedure Outline – Fall 2007

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

a)  Old system which differentiated between courts of law and courts of equity

  1. Court of law – court for seeking relief against a wrong done
  2. Court of equity – stemmed from the right to do justice, could overrule a court of law
  3. Could only seek remedy in a court of equity if one could prove that the legal remedy was inadequate

b)  System was designed to get a case down to one issue

  1. Plaintiff was forced to plead a single writ of action. If wrong writ was chosen, complaint was dismissed
  2. Defendant could challenge the complaint on three issues
  3. Demurrer – challenged legal sufficiency
  4. Traverse – challenged factual sufficiency
  5. Confession and avoidance – stated a defense to the case after admitting the facts (affirmative defense?)
  6. Code Pleading

a)  Developed in reaction to common law pleadings

b)  Abolished law and equity, creating one united court system

c)  Required one to set forth “a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”

  1. Required pleading of “ultimate facts” that were neither too detailed (evidentiary) nor conclusory (conclusions of law)
  2. Evidentiary facts –
  3. Conclusory facts –
  4. Federal Rules

a)  Adopted in 1938

  1. Prior to 1938, federal courts adopted the procedural rules of the state where the federal court sat

b)  “Trans-substanstive” procedural law – uses same rules of federal procedure regardless of case type

c)  Changed pleading system

  1. Dropped code pleading
  2. Complaint need not state a legal theory
  3. Only requires “a short and plain statement of the claim showing that the pleader is entitled to relief” (Rule 8)
  4. The Complaint
  5. Elements of the complaint

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. Plaintiff does not have to demand a dollar value in the complaint, but can instead “demand damages in an amount to be shown at trial”
  2. There is nothing improper about alleging more than $75,000 for jurisdictional purposes and making a demand in an amount to be shown at trial
  3. The amount demanded does not limit the amount the plaintiff can recover at trial (unless judgment is in default) (Rule 54(c))
  4. 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. Rule requires that separate claims only need to be stated when the claims are founded on separate transactions
  2. Most courts are stricter and ask plaintiffs to set forth separate counts for different claims even when transactionally related

c)  Parties may adopt allegations found elsewhere in the complaint by reference (Rule 10(c))

  1. Parties may attach a copy of a written instrument (such as a contract) to the pleading, which makes the instrument part of the pleading “for all purposes”
  2. 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”

b)  Question for legal sufficiency: “If the plaintiff proved everything she alleged in her complaint, would the law provide a remedy for her?”

  1. If not, then the court grants the Rule 12(b)(6) motion and dismisses the case

c)  Usually cases are dismissed “with leave to amend”

  1. Means plaintiff has another opportunity to amend her complaint and make it legally sufficient
  2. “With leave to amend” is also termed “without prejudice”
  3. If plaintiff may not amend the claim, then the dismissal is “with prejudice”
  4. Dismissals with prejudice may be appealed because final judgment has been given (final judgment rule)

d)  A 12(b)(6) motion or generally demurrer does not have to attack the entire complaint, but can instead target selected claims

  1. Factual (or “Formal”) Sufficiency

a)  Code pleading

  1. Plaintiff is required to plead “ultimate facts”
  2. Facts which are alleged too specifically are called “pleading the evidence” and will be dismissed
  3. Facts alleged too generally may be considered “pleading conclusions of law” and the case will be dismissed

b)  Federal Rules Pleading

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

c)  The Common Counts

  1. Counts allowed to be claimed in shorthand
  2. Quantum Meruit – value of labor done
  3. Quantum Valebant – value of goods delivered
  4. Indebitatus assumpsit – for money owed
  5. Heightened Specificity Requirements in Certain Cases

a)  Rule 9 expressed exceptions to the liberal pleading standard of Rule 8

b)  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
  3. Denney v. Carey, the plaintiff need not allege the specific documents where fraud can be found or the specific fraud conducted, but only the ‘category of documents’ and the ‘nature of the information’
  4. The exact facts can be found in discovery
  5. Denney v. Barber, same facts as Denney v. Carey and same complaint, was dismissed for being too general. Most courts follow Denney v. Barber in an effort to prevent strike suits (where the corporation settles to save time and money on preparing for litigation)
  6. Plaintiffs in fraud causes generally need to identify specific transactions not general categories of fraud
  7. When does something fall under the heightened pleading standard?
  8. Expressed mention of one thing (such as fraud in Rule 9(b)) excludes all things not mentioned
  9. In Leatherman v. Tarrant County, a complaint against a municipality only has to meet Rule 8(a)(2) not 9(b) because although municipal employees have immunity to respondeat superior, they can still be subject to suit
  10. Federal employees have qualified immunity and the ability to appeal immediately to avoid litigation (exception to final judgment rule?)

c)  Special Damages

  1. If an item of special damage is claimed, it must be specifically stated (Rule 9(g))
  2. Law distinguishes general and special damages:
  3. Special damages – those which flow from the actions in the complaint – anything that is quantifiable (?)
  4. Ex. Medical damages, lost profits in business, defamation
  5. General damages – what is alleged in the complaint – anything that is not quantifiable (?)
  6. Ex. Lost earning capacity, pain and suffering
  7. Two requirements: [WHAT ARE THESE??]
  8. Pleading Inconsistent Facts and Alternative Theories

a)  A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them 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))

c)  Alternative pleadings cannot be made unless one truly does not know what the correct allegation should be

  1. Trial by jury

a)  Within 10 days after the last pleading directed to the issue is served, either the plaintiff or defendant should demand the right to trial by jury (if they want one)

  1. Voluntary Dismissal

a)  Plaintiff may seek 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))

  1. Unless stated otherwise, the first dismissal by the plaintiff is “without prejudice”
  2. Any subsequent dismissal of the same claim by the plaintiff if “with prejudice”

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. Unless otherwise stated, a dismissal by court order is “without prejudice”
  2. Involuntary Dismissal

a)  A district court may, sua sponte, or by defendant’s motion, dismiss the case.

b)  Unless stated otherwise, an 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))

a)  Three types of defenses

  1. Legal defense – complaint does not allege actionable behavior (ex. 12(b) motions)
  2. Factual defense – denying that some or all of the facts set forth in the complaint are true
  3. Excuse – Also called an affirmative defense, admits to the facts but states a reason why defendant should not be held liable
  4. 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
  12. Motion for a more definite statement. If not obeyed within 10 days, a court may strike pursuant to 12(f)
  13. Rule 12(f): A court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
  14. On its own; or
  15. On motion made by the party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading
  16. Rule 56 Motion:
  17. Motion for summary judgment (Rule 12(c))
  18. Facts in the case and the defendant is entitled to judgment as a matter of law
  19. Ex. Statute of limitations has run or claim is barred for some reason (ex. Res judicata or collateral estoppel)

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

  1. Responses to the Plaintiff’s Allegations – three possible responses
  2. Admissions
  3. Admits the fact of allegation in the complaint
  4. Denials
  5. General denial – defendant denies all of the allegations of the complaint (including jurisdictional grounds)

1)  Must be made in good faith. If there is one fact or allegation not denied, the cannot make a good faith general denial

  1. Specific denial – Responding to each paragraph of the complaint

1)  Qualified general denial – A party may specifically admit certain allegations and generally deny the rest

  1. Rule 8(b) requires that “denials shall fairly meet the substance of the averments denied”
  2. 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. If one event in the series is false, a conjunctive denial would be proper but is bad pleading
  2. Defendant should, instead, admit or deny each event in the series
  3. Denials for Lack of Knowledge or Information
  4. 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”

1)  This statement has the effect of a denial

  1. This statement must be made only in good faith and defendant must take reasonable steps to ascertain the information necessary to form a belief as to the truth of the averment
  2. Affirmative Defenses
  3. Must be stated in the defendant’s response to a pleading, pursuant to Rule 8(c), when a denial of the averment alone is not enough to alert the plaintiff of the new subject matter
  4. If the affirmative defense is not raised in pleading it cannot be argued in court
  5. An affirmative defense stated as a counterclaim, or vice-versa, should be treated by the court as it if were properly designated
  6. Rule 8(c)(1) lists 19 affirmative defenses but this list is not exhaustive
  7. When the affirmative defense is not listed in 8(c), courts will look at three factors to determine if the defense is affirmative:

1)  Legal – responds to a necessary element in plaintiff’s action

  1. ex. Contributory negligence if the complaint alleges negligence

2)  Practical – if the matter is easier for the defendant to prove

  1. ex. That a payment was made since it is nearly impossible for P to prove that it was not. Therefore D’s payment is an affirmative defense

3)  Policy – Some things must be asserted because they can be waived by defendant

  1. ex. Personal jurisdiction and statute of limitations must be asserted or the plaintiff can still being the claim
  2. Claims by the Defendant

a)  Defending party can also assert claims against other parties and, in some circumstances, force the joinder of additional parties

  1. Counterclaim – a claim filed by defendant against an opposing party
  2. Plaintiff must file a “reply” to a counterclaim denominated as such
  3. Cross-claim – a claim filed by defendant against a co-defendant
  4. 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

  1. Default – a ministerial notation that the defendant failed to plead or otherwise respond in time
  2. The plaintiff cannot obtain money or other relief on the basis of a default. Plaintiff must get a default judgment.
  3. Default judgment – an adjudication which is enforced like any other judgment

b)  Rule 6(b) – Extending time.

  1. When an act may or must be done within a specified time, the court may, for good cause extend the time:
  2. With or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
  3. On motion made after the time has expired if the party failed to act because of excusable neglect
  4. Exceptions: A court must not extend time to act under Rule 50(b) and (d), 52(b), 59(b), (d) and (e), and 60(b), except as those rules allow

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