Trial Practice & the Federal Rules

Civil Procedure II - Klein

Civil Procedure 2:

Trial Practice & The Federal Rules

Pleadings:

General Rules
Pleading the Right to Relief:
Π must plead what he has to “prove” at trial (The elements of C/A)
Π must show he can meet any prima facie burden
If ∆ has a legitimate defense, Π will have to introduce evidence sufficient to avoid the defense
Rarely, Π is required to plead the “nonexistence” of a defense
If Π pleads to these, ∆ will carry the burden of proof to show they exist
Typically Π is not required to plead “nonexistence”
∆ must plead all affirmative defenses available
Raise it or waive it
Types of pleadings: Rule 7(a)
Standard Pleadings:
Complaint
Answer
Reply to an answer containing a counterclaim
Answer to a cross-claim
Ө Indemnity or Contribution Pleadings:
Ө complaint
Ө answer to Ө complaint
Truthfulness in Pleading: Rule 11
Every pleading, motion, or other paper prepared for a client must be signed
The attorney certifies:
Reasonable inquiry into the facts has been conducted, and
The claim is either warranted by law, or
There is a good faith reason for the extension, modification, or reversal of good law, and
The pleading was not interposes for an improper purpose
Violations:
Subjective bad faith is not required to violate R. 11
Attorney’s violate if:
Fail to perform due diligence, or
Reasonable inquiry into the facts
Also violate if the signed pleading:
Is frivolous, or
Legally unreasonable, or
Not based in facts
Reasonableness is measured by an objective standard
Sanctions:
If R. 11 is violated courts MAY impose an appropriate sanction (i.e. sanctions are not mandatory)
Sanctions may applied to:
The Attorney, or
The Client, or
BOTH
The court has unfettered discretion as to what sanction to apply
Examples: fines, reasonable attorney’s fees, dismissal of the case, publishing your bad deeds, disbarment
Factually-grounded complaints CANNOT be sanctioned as harassing, regardless of the attorney’s subjective intent
Procedural Due Process requires notice and opportunity to be heard before imposition of a sanction
Claim/Prayer for Relief
Usually found at the end of the complaint or answer
Identifies what the party is seeking:
May include:
Money damages
Injunctive relief
Declaratory relief
Complaint[Rule 8(a)]
Three Required Components:
Grounds for Subject Matter Jurisdiction
Statement of the claim
Demand for a judgment that grants relief
Statement of Grounds for SMJ: R. 8(a)(1)
A short plain statement of the court’s jurisdiction
Purpose:
Recognize that Federal Courts are limited
Π must show:
Federal Question exists, or
Diversity exists, and the amount in controversy exceeds $75K, or
Federal statute specifically grants the court jurisdiction
Statement of the Claim: R. 8(a)(2)
Also must be short and plain
Π must state claim and entitlement to relief
Notice Philosophy:
The goal of this rule is to give the other side a clear statement of the claim and relief
Failure to do this opens up the client to a R. 12(b)(6) motion
Generally:
Failure to state a claim will be dismissed with leave to amend
If the pleader makes not progress by amendment, court is likely to dismiss
NOTE: Pro Se (without counsel) Π are not held to as strict a standard
Demand for judgment granting relief: R. 8(a)(3)
Allows the Π to seek any and all legal and equitable relief
Π may seek in the alternative or cumulatively
Inconsistent Alternatives:
May be pleaded except in default cases under R. 54(c)
Can be raised by the court Sua Sponte even if not pleaded to
Particular Matters[Rule 9]
Some matters require detailed pleadings:
Capacity to Sue
Fraud or Mistake
Conditions Precedent
Special Damage
R. 9 therefore is an exception to the general rules regarding minimal pleading
Capacity to Sue:
This is a challenge raised by ∆
Must show:
Why Π lacks capacity
Capacity affects the court’s SMJ
NOTE: Capacity is UNAVAILABLE unless the issue affects the court’s SMJ
Fraud or Mistake:
To be sufficient, Π must state:
Time
Place
Nature of activities/circumstances
Purpose of requiring this information is to allow ∆ opportunity to adequately prepare.
Possible result of failure to provide:
R. 12(b)(6) motion – Failure to state a claim
Dismissal
With prejudice
R. 12(e)motion – More definite Statement
Dismissal
Without prejudice
Π can amend and re-file with the required information
Conditions Precedent:
Particularity only applies when the pleading is in denial of performance
Thus, if ∆ makes a general denial:
∆ may have waived trial on the issue, or
Performance may deemed admitted to
Special Damage:
Actual/compensatory damages are classified as either general or special and pleaded accordingly
General damages – Those that naturally result from and act or omission (i.e. pain and suffering from a car accident)
Special damages – Those that don’t naturally follow from the act or omission (i.e. loss of earning or income from a car accident)
Typically failure to plead special damages means evidence of them is inadmissible at trial
Pretrial Motion Practice[Rule 12]
R. 12(b)(6) – Failure to State a Claim for Relief
Motion to Dismiss
How it attacks:
Filed by ∆
Examines the “face” of the document
Court must construe all the alleged facts in a light most favorable to Π
After so construed, Π has not stated facts sufficient to support a claim for relief under any legal theory
Timing:
Usually filed before ∆ files his answer
∆ can achieve the same result with a R. 12(c) motion later
If Granted:
Π usually given the opportunity to amend complaint once
If Π amends once and still fails to meet burden issue is res judicata
Privilege as a basis:
Absolute privilege can be the basis for a R. 12(b)(6) motion
Conditional privilege cannot be the basis for a R. 12(b)(6) motion
R. 12(b)(7) – Failure to join an indispensable party
Filed underR. 19
Timing:
Usually filed during discovery
Can be filed at any time, as soon as the party is revealed
R. 12(c) – Judgment on the pleadings
Timing:
Typically filed after the pleadings have closed
Must be filed in a timely enough manner so as to avoid delay of trial
Otherwise:
Same standard as a R. 12(b)(6)
R. 12(e) – More Definite Statement
Π has filed a pleading that is extremely vague, and
A responsive pleading is required, and
∆ cannot reasonably form a response
∆ can:
Move for a more definite statement
Can do this before filing the required response
But:
∆ must expressly identify the defects complained of, and
∆ must express clearly the level of detail desired, and
Request must be reasonable
R. 12(f) – Motion to Strike
Timing:
Made before the required response to any pleading, OR
Made within 20 days after the service of any motion, OR
Made any time sua sponte
What can be stricken:
Insufficient defenses
Redundant, irrelevant, impertinent, or scandalous material
Answer[Rule 8(b)]
A pleading in which the ∆ admits, denies, or makes a non-positive denial to all the claims in the complaint
Additionally, ∆ must state defenses and make claims for affirmative relief such as counterclaims and/or cross-claims
Answer v. Motion
Answers are NOT motions
Answers are:
Factual responses to the allegations made in the complaint, and
Not asking the court to do anything/rule on matters of law, and
Only concerned with the facts alleged and possible defenses
Motions:
Ask the court to do something/rule on a matter of law, and
Not usually concerned with the general facts in the case
Types of Denials:
General Denial – “I didn’t do any of it!”
Denies all the allegations made in the complaint
Used often in English Common Law
Including SMJ so be careful using this
Called a General Issue Plea (GIP)
Not so much a denial, as it is a “Fine just try and prove it”
Disfavored by the FRCP because it will not narrow down the issues of a case
Specific Denial – “Some of this is true, but not all of it”
Favored and safer for your client
Three ways:
Specifically admit or deny each allegation separately
Specify what is admitted to, and deny the rest
Specify what is denied and admit the rest
Non-positive Denials – “I don’t know, maybe?”
Usually stated when the issue is unclear and in dispute
Court will treat this as a functional denial
Failure to Deny:
Averments not expressly denied are admitted
EXCEPTION: Damages
If no responsive pleading is required, all averments will be seen as either denied or avoided
THUS: If you do not expressly deny an averment, your client has admitted to that averment
Affirmative Defenses: R. 8(c)
Core Concepts:
“Yes I did do this but you can’t win because…”
Must be pleaded separately (at the end of the answer)
Yes, No, Yes, Yes, No, No, No…And you can’t win because…
MUST BE PLEADED, OR IT IS WAIVED!
List of possible defenses:
Accord and Satisfaction
Arbitration and Award
Assumption of Risk
Contributory Negligence
Discharge in Bankruptcy
Duress
Estoppel
Failure of Consideration
Fraud
Illegality
Injury by Fellow Servant
Laches
Liscense
Payment
Release
Res Judicata
Statute of Frauds
Statute of Limitations
Waiver
Plus Others
Consult the list in R. 8(c)
If not in the list, determine on your own
See The Burden of Pleading
Affirmative defenses pleaded erroneously
When an AD is mistaken pleaded as a counterclaim the court will treat it as though the pleader had correctly identified it
Amending Pleadings[Rule 15]
“Matter of Course” Amendment: Rule 15(a)
Parties may amend a pleading ONCE
As long as the responsive pleading has not been served
Once the Answer has been served:
Normal motion practice resumes
Court leave will be required in order to amend
“Leave” Amendment
Before Trial – Normal Motion Practice
With leave of the court, a party may:
Seek permission to amend a pleading after a responsive pleading has been served
Federal courts are very liberal in permitting amendments in order to reach the merits of a case
During Trial – New Evidence Has Come to Light
If:
Evidence is object to on the ground it is not relevant to the pleadings, and
Leave to amend is requested on the issue
The court will usually grant the motion where:
The evidence will facilitate presentation on the merits
Admitting the evidence is in the interest of justice
After Trial – Rule 15(b)
Amendment is allowed after trial if:
The amendment would reflect the issues litigated
The issues have impliedly been tried by the consent of the parties
This type of amendment may alter the affirmative relief awarded
If an amendment of this type is challenged, the court must:
Search the record for indications the party received notice of the actual issue, and
This will usually be found if:
The party has failed to object to evidence not in the pleading, or
Evidence was introduced that was relevant to the new issue
The party had the opportunity to litigate the issue at trial
“Relation Back” Amendment – Rule 15(c)
What is it?
The pleadings have closed, and now the party wants to amend
The Statute of Limitations has run on the “new” claim
Thus, if the party want to get the claim admitted, they must amend all the way back to filing the cause of action
Success in a motion like this is very difficult
Two potential possibilities:
File the motion with NO NEW PARTIES only new claims, or
File the motion and CHANGE ALL THE PARTIES, but none of the claims
Adding a new claim:
To succeed in these cases the party must show:
Special relationship between the “old” and “new” claims
They should arise from a “common nucleus of facts”
In these situations the amendment will be treated as if it were filed with the original claim, even if the Statute of Limitations has already run
Adding a new party:
Pleadings amended back adding a party, and claim against that party will be amended back to the original filing date
Moving party must show:
Common nucleus of facts, and
Statute of limitations has NOT run, or
New party had notice of the impending claim BEFORE the SoL ran, or
The new party should have known that a claim would have been made against them
If the moving party can meet these standards they will be successful
This is very difficult to do successfully, and is rarely granted!

Joinder:

Joinder of Claims[Rule 18]
Claim
The cause(s) of action one party has against another
Rules:
There is NO LIMIT to the amount of claims that can be joined
The only real limitation to joinder is SMJ
Same transaction or occurrence?
Sometimes, but, claims can be unrelated
In all but one case claims can have a different subject matter
R. 18(a) – Joinder of Claims
A party asserting a claim for relief may join as many claims as the party has against on opposing party
Allowed:
Original, counter-claim, or Ө
Independent or In the Alternative
Legal, equitable, or maritime
R. 18(b) – Joinder of Remedies; Fraudulent Conveyances
If:
A claim is cognizable ONLY AFTER another claim has been prosecuted, and
The separate claim has been prosecuted to conclusion, and
The two claims can joined into a single action
Then:
The claims may be joined, but
The court shall only grant relief in that action in harmony with the relative substantive rights of the parties
In other words:
Parties may plead claims even if they are irrelevant until a separate, but related, claim is prosecuted to conclusion
Addition of Claims[Rule 13]
Counter claims – R. 13(a-f)
Definition:
When a ∆ raises a claim against a Π after being served with the original complaint
Π is required to respond or reply to all counterclaims
Compulsory Counterclaims – R. 13(a)
Must be asserted or they are waived
Cannot be reserved and filed later
Standards:
The court must have proper SMJ
Either:
Federal question, or
Diversity
Counterclaim must arise out of the sametransaction or occurrence as the original claim
Must not require a Ө for adjudication
Permissive Counterclaims – R. 13(b)
May be reserved, and filed later
Standards:
Proper SMJ is preferred, but not required
Supplemental jurisdiction is NOT ALLOWED, but
The claim does not have to arise from the same transaction or occurence, but
The counter claim must have the same subject matter
Other types of counterclaims:
Post-pleading Maturation – R. 13(e)
Deals with pleadings acquired or discovered after the pleading has been filed
Party can still file the counterclaim with:
Permission from the court
By supplemental pleading
If it is in the interests of justice
Omitted Counterclaims – R. 13(f)
Not all omitted counterclaims are considered waived, even if they are compulsory
If the claim is in the interests of justice, and
With the leave of the court,
A party may assert claims omitted through:
Oversight, or
Inadvertence, or
Excusable neglect
Counterclaims seeking this status must meet a very high burden of proof to be admitted
Cross-claims – R. 13(g)
Definition: A claim against a “co-party” (same side of the case)
Standards:
Cross-claim must arise from the same transaction or occurrence
If not from a common nucleus, the cross-claim and original claim must be logically related
Cross-claims CANNOT be compulsory
Parties may plead or reserve cross-claims
Generally all cross-claims must be within a court’s SMJ (thus, they should require no independent basis for jurisdiction
Joining Additional Parties to a Cross-Claim – R. 13(h)
When joining a party to a cross claim and not to the original action:
Parties must comply with Rules 19 20 regarding the standard for joining

Addition of Parties[Rules 19, 20, 21]
Permissive Joinder – R. 20
Allows joinder of claims by multiple Π or multiple ∆
Promotes trial convenience
Reduces multiplicity of law suits
Two-part Test:
The parties arise from the same transaction or occurrence, and
The parties have a question of law, or, a question of fact in common
Timing:
Typically all parties must be joined at the beginning of the case
As the case proceeds, it is harder, but not impossible, to bring in additional parties
Court discretion:
Judges may severe parties pursuant to R. 42(b)
Typically only done when the claims are especially complex
Misjoinder & Non-Joinder of Parties – R. 21
Misjoinder is NOT a ground for dismissal of the claim
Parties may be added or dropped from a case by:
Motion from the parties
Sua Sponte order from the court
Parties may be severed at any stage in the trial
All claims against severed parties can be proceeded with separately
Joinder of Necessary Parties – R. 19
Three part test:
Party is necessary to the claim
It is feasible to join the party to the case
Party is indispensable to the claim
A party is necessary if: R. 19(a)
The Other parties will not be able to get complete relief, or
Non-joinder will impair a party’s ability to protect his own interests, or
Non-joinder would subject the party/others to double or multiple liability
Joinder is feasible if: R. 19(b)
The party is subject to service of process (i.e. not too far away, etc.), and
Joinder will not destroy SMJ
All necessary parties will be joined if feasible
If joinder is not feasible:
The action may proceed, but
The court gets to make the determination
It must decide whether it is within both equity and good conscience to proceed
Indispensable Parties: R. 19(b)
Factors for determining a parties status:
Will absence cause prejudice to those already in?
Will non-joinder impair the outsider’s interest?
Will absence affect the public’s interest
Will the judgment be adequate without the party?
Will the Statute of Limitations permit joinder?
ALL indispensable parties MUST be joined to the action
If joinder is not feasible, the case MUST be DISMISSED
Impleader[Rule 14]
The process whereby a ∆ may bring a Ө into the case after the suit has begun – R. 14(a)
Reduces duplicative litigation
Prevents circuitry of action
Test:
The Ө “is” or “may be” liable for all or part of the Π claim against ∆
Judgment for Π binds the ∆ and precludes the Ө∆ from re-litigation on the same issue
Timing:
All Ө complaints must be filed within 10 days after serving the original answer
If 10-day period has lapsed, ∆ may still file a Ө complaint with leave of the court
FYI:
If ∆ seeks impleader:
∆ becomes ӨΠ
Ө becomes Ө∆
Π becomes Original Π
ӨΠ claim may be in the alternative
Ө∆ has the same rights and privileges as ӨΠ
Original Π can still sue Ө∆
When may a Π bring a Ө into a lawsuit – R. 14(b)
If ∆ asserts a counterclaim against Π
Π may bring a Ө into the suit subject to the same standards above
When to deny Impleader:
If it is reasonably clear the ∆ will defeat Π without Ө, impleader is unnecessary
If presence of Ө will unduly delay the trial for Π
If presence of Ө will prejudice Π

Interpleader[Rule 22]
A special procedural device that allows a company to become a pro-active Π
Not common except when an insurance company is involved as a party
What it does:
Protects a party from multiple and possibly inconsistent lawsuits
Allows a party to sort out its legal relationships with a number of opposing parties simulatineously
“Statutory” Interpleader
§ 1335
Allows a party holding property which “is” or “may be” claimed by 2 or more claimants, and
The claimants are ADVERSE to EACH OTHER
To bring those parties into the suit
Test:
Parties to be interpleaded must be citizens of different states, and
Value of the property must EXCEED $500
Statutory Interpleader is much broader than R. 22 Interpleader
Test:
Party should be interpled when:
Π “is” or “may be” exposed to double liability over the same property, and
The claims involved DO NOT have a common origin
Especially, where the claims are adverse and independent of each other
Court makes the final determination of appropriateness
If Interpleader is appropriate:
Π must post the predetermined policy money (bond)
Court will handle proceedings from that point forward
Π is then allowed to leave the proceedings:
They will be considered “disinterested”
They have admitted liability so, it doesn’t matter who the money is adjudicated to
If Interpleader is NOT appropriate:
Motion is denied
Suit moves forward as is
Intervention[Rule 24]
Allows a Ө with an inadequately represented interest to join the suit
Intervention of Right:
If timely, intervention shall be permitted when:
U.S. statute gives an UNCONDITIONAL right to intervene, or
Ө has a related “interest” that may be “harmed” if not added, and
That interest is not being “adequately” represented by the current parties to the action
Leave of the court is NOT required to file for intervention
Permissive Intervention:
If timely, permissive intervention shall be granted when:
A U.S. statute confers a CONDITIONAL right to intervene, or
When the applicant’s claim or defense and the main action have a question of law or a question of fact in common.
Court Discretion:
Granting intervention is at the discretion of the court
In granting such a motion the court consideres:
Delay to the original action
The prejudicial effect of allowing Ө to enter
Though not onerous, this can be a difficult burden to meet
Timing:
How does the court determine what is a “reasonable” time?
Will the court and those already parties suffer from the fact that the application did not come earlier?
Can the applicant be faulted for not applying earlier?

Discovery: