Early Common Law Distinction Between Law and Equity

Historical Development
Early common law distinction between law and equity
King’s Courts
Courts of Equity (Chancellor)
Reform
Need for reform
Early reform: code pleading
FRCP
The Federal Rules of Civil Procedure
1934: The Rules Enabling Act: gave SCOTUS the power to propose rules for federal courts. The rules, however, “shall not abridge, enlarge or modify any existing right.”
1938: Adoption of the Rules of Federal Procedure
Principles of the Federal Rules
Union of law and equity, same procedure for all cases
Jury retained in actions formally at law
Simplicity and liberal amendment in pleadings and motion practice
Liberal provision for joinder of claims and parties
Comprehensive discovery procedures
Reliance on discretion of trial judge
Simple provisions for appeal
The Functions of Pleading
Give notice (notice pleading)
Dispose of claims that are legally or factually inadequate
Establish facts
Guide parties and court through case
Issues
Discovery
Evidence
Jury instructions
Create record
Rule 1: Scope and Purpose of Rules
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
Rule 2: One Form of Action
There is one form of action—the civil action.
Why litigate?
Damages
Compensatory
Liquidated
Punitive
Injunctive relief
Other specific relief
Constructive trust
Accounting
Rescission
Reformation
Declaratory Judgment
Provisional Remedies
Temporary restraining orders
Preliminary injunctions
Anatomy of a Lawsuit—Pre-Complaint
Client Interview
Investigation
Conflicts of interest check
Determine SOL
Fee arrangement
Determining Whether Claim Exists
Legal and factual research
Rule 11
Determining Whether to Proceed
Settlement Negotiations
Deciding Where to File
Anatomy of a Lawsuit
Pre-Complaint
Complaint
Responding to the Complaint
Discovery/Defining Scope of the Litigation
Pretrial Settlement/Mediation Conferences
Summary Judgment and Daubert motions
Final pretrial conference/order
Trial/judgment
Post-judgment motions
Appeal
Rule 3: “A civil action is commenced by filing a complaint with the court.”
For what purses is the date of commencement significant?
Subject matter jurisdiction (diversity)
Personal jurisdiction
SOL
Race to the courthouse issues
Generally, filing tolls SOL in federal question cases. In diversity cases, state law controls. Under Mississippi law, filing tolls the SOL.
Rule 8(a): Pleading
Claims must contain:
A short and plain statement of the grounds for jurisdiction
A short and plain statement of the claim showing the pleader is entitled to relief
A demand for the relief sought (different types of relief or relief in the alternative)
Rule 8(a)(1): Subject Matter Jurisdiction
Diversity
Allege the citizenship of each party
For a corporation, allege the state of incorporation and principal place of business
Amount in controversy > $75K, exclusive of interest and costs
Federal Question
Cite the constitutional provision, statute, etc.
Supplemental Jurisdiction
Form 7: Statement of Jurisdiction
Rule 8(a)(2): Short and Plain Statement of the Claim
Notice Pleading
Does the pleading provide sufficient notice of the claim and relief sought to enable defendant to make an adequate response?
Does the complaint contain allegations from which the material elements can be discerned?
Form 11: Complaint for Negligence
Forms 10-21 are for various types of complaints.
Rule 8(a)(3): Demand for Relief
Specify the type of relief
Money damages
Equitable relief
Declaratory judgment
Is there any reason to specify the amount of money damages plaintiff is seeking?
Diversity
Strategy
Rule 54(c)/Default Judgment
Rule 54(c): Demand for Judgment
A default judgment cannot:
Exceed the amount prayed for in the demand for judgment.
Award relief different in kind from that prayed for in the demand for judgment.
Rule 8(d) and (e):
(d)(1): concise, simple, direct
(d)(2): alternative and inconsistent claims/defenses are permissible within the confines of rule 11.
(e): pleadings are to be construed so as to do justice.
Rule 9: Pleading Special Matters
9(b) and (g) establish heightened pleading requirements for
Fraud and mistake
Special damages
Why require heightened pleading?
Reputation of defendant on the line
To ensure reliability of claim
Conditions precedent?
Generally plead performance
Specifically plead failure to perform
Time and Place
If pleading, may be used to support claim or defense.
Rule 10: Form
10(a): All pleadings must contain a caption which includes the name of the court, title of the action, the file number (except for the complaint) and a rule 7(a) designation
The complaint must list all parties
Later pleadings may name the first party and refer generally to other parties
Form 1
10(b): Limit allegations in each paragraph/defense to a single set of circumstances. Limit claims in a single count to those based on the same transaction or occurrence. State defenses separately. Can refer to a paragraph in an earlier pleading.
10(c): Adoption by reference
Copies of “written instruments” attached to pleadings are part of the pleadings.
Rule 38: Jury Trial
(a) Right to jury trial preserved
(b) Party must demand jury trial in writing no more than 14 days after service of the last pleading directed at that issue.
Best practice: Demand it in the complaint or the answer/counterclaim
(d) Otherwise, right to jury trial is waived.
Rule 39(b): court may order jury trial in cases were demand was filed out-of-time.
Other Requirements
State law may impose additional requirements
Medical malpractice
Prior notice in some states
Certification re: expert
Cannot demand specific amount of money
Shareholder derivative claims (demand)
Miss. Tort Claims Act (advance notice)
Claim against doctor in a prescription drug case (heightened pleading)
Federal statute may impose additional requirements
Employment discrimination
File claim with EEOC
Obtain right to sue letter
Private Securities Litigation Reform Act
Heightened pleading
Rule 11(a) Signature Required
Attorney or unrepresented party must sign every pleading, motion or other paper and list address, e-mail and phone number
No verification/affidavit necessary unless required by another rule or a statute
Court must strike unsigned papers
Rule 11(b): Certifications
By signing, filing, submitting or later advocating a pleading, motion or paper, the person is certifying that to the best of his or her knowledge, information, and belief, formed after a reasonably inquiry under the circumstances:
No improper purpose
Not to harass
Not to cause unnecessary delay
Not to needlessly increase cost
Claims, defenses, and other legal contentions are warranted by existing law or a nonfrivolous argument for extension, modification or reversal
Factual contentions have evidentiary support or, if specifically so identified, are likely to have support after reasonable investigation/discovery
Denials of factual contentions have evidentiary support or are reasonably based on belief or lack of information
Rule 11(c): Sanctions
Who can be sanctioned?
Lawyers, law firms, parties who have violated rule 11(b)
Absent exceptional circumstances, law firms will be held jointly responsible along with lawyer/employee (Rule 11(c)(1))
If the court finds a violation, does it have to sanction the responsible party, firm, or lawyer?
No, rule 11(c)(1) says the court MAY… not that the court shall or must
Rule 11(c)(2), (3)
Procedure
Sanctions can be initiated by motion by a party, in which case the safe harbor provision applies.
Motion should be filed separately and specifically describe conduct that allegedly violates rule 11.
Party serves motion but doesn’t file it or present it to court until more than 21 days after service.
Sanctions may be initiated by court
Court must first enter show cause order describing the conduct that appears to violate rule 11(b)
Rule 11(c)(4)
What type of sanctions may the court impose?
Directives of a nonmonetary nature
Order to pay penalty to court
Award of reasonable attorneys’ fees and expenses incurred as a result of the violation
Rule 11(c)
Are there any limitations on the court’s discretion?
Sanction shall be limited to what is sufficient to deter comparable conduct by others similarly situated (Rule 11(c)(4))
Monetary sanctions may not be awarded against a represented party for a violation of rule 11(b)(2) (Rule 11(c)(5)(A))
Certification re: good law or nonfrivolous argument that law should be changed.
Monetary sanctions may not be awarded on court’s own initiative unless court enters show of cause order before a voluntary dismissal or settlement (Rule 11(c)(5)(B))
Court awarding a sanction shall describe conduct constitution a violation and explain the basis for the sanction in its order (Rule 119(c)(6)).
Rule 11
Rule 11(d): Doesn’t apply to discovery
Standard of review: Abuse of Discretion
Is there any risk in filing a rule 11 motion?
Yes, rule 11 applies to rule 11 motions
Court may award prevailing party fees and expenses incurred in presenting or defending the motion (Rule 11(c)(2))
Walker v. Norwest Corp. et. al. (8th Cir. 1997)
The Walkers filed suit in federal court based on diversity jurisdiction, alleging that Norwest Bank breached its fiduciary obligations in connection with a trust fund held for the Walkers’ son.
Failure to allege citizenship of defendants in diversity case warranted award of attorney fees and expenses incurred by defendants to obtain dismissal as Rule 11 sanctions.
Rule 12(b)(6): Failure to State a Claim (BEFORE Twombly & Iqbal)
Claim can be subject to dismissal based on legal or factual inadequacy.
Dismissal pursuant to 12(b)(6) is a legal issue for the trial judge; it will be reviewed de novo by appellate court.
Court must accept the allegations as true, resolve doubts and inferences in pleader’s favor, and view the pleadings in the light most favorable to pleader.
Conley: “A complaint should not be dismissed for failure a state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Bell Atlantic v. Twombly (2007)
Plaintiffs brought putative class action claim against incumbent local exchange carriers (ILEC) alleging antitrust conspiracy in violation of Sherman Act.
The complaint
Alleged
ILECs engaged in parallel conduct in their respective service areas to inhibit competition by and growth of competitive local exchange carriers (CLECs).
ILECs commonly failed to meaningfully pursue attractive business opportunities where they possess substantial competitive business advantages.
An agreement… a conspiracy
DID NOT allege
Any specifics about an agreement.
Plaintiffs inferred an agreement from the parallel behavior.
Court: Factual allegations must be sufficient enough to raise the right of relief above the speculative level. The alleged facts must plausibly suggest…
Is there an obvious alternative explanation that the facts/complaint are consistent with?
Overturns Conley: “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
How could the plaintiffs have avoided the dismissal?
Asserting specific facts supporting a conspiracy OR
Pleading facts that tend to exclude self-interested conduct as an explanation for defendants’ parallel behavior.
Dissent
Goes back to fact pleading—difficult to tell the difference between facts and bare conclusions.
Do not overrule Conley. Under Conley, if there was a conceivable set of facts, then the case went forward.
Now, there must be facts indicating that the claim is plausible, not just conceivable.
Can cure cost concerns by reigning in discovery.
Iqbal (2009)
Iqbal filed a Bivens claim against Ashcroft and Mueller alleging that they violated the constitution by subjecting him to harsh conditions while in confinement based on his race, religion, or national origin.
The complaint
Alleged
Defendants knew of, condoned and willfully and maliciously agreed to subject plaintiff to harsh conditions of confinement as a mater of public policy, solely on account of his race and/or national origin.
Ashcroft = primary architect of policy
Mueller = instrumental in adoption and execution
Defendants approved of the police of holding detainees in highly restrictive conditions of confinement.
Court: A complaint must contain sufficient factual matter, accepted as true, to state a claim that relief is plausible on its face.
The court DOES NOT have to accept bare legal conclusions as true.
Determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.
Specifically, this complain was a bare legal conclusion with NO assumption of truth.
This complaint also contained a factual allegation, but there is an obvious alternative explanation. (Twombly)
Iqbal Two Prong Test
(1) Fact allegation or bare legal conclusion?
(2) Do the fact allegations make the plaintiff’s claim plausible?
Hamilton
Form 13: Complaint for Negligence Under the Federal Employers’ Liability Act
Does the complaint plausibly allege that plaintiff was an employee rather than an independent contractor?
Other facts alleged:
Defendants provided unsafe tools and equipment.
Defendants failed to provide safe tools and safety equipment.
Court: Doesn’t have to be probable to be plausible (can be improbable).
Cooney
Complaint alleges:
Broad conspiracy to deprive plaintiff of child custody in violation of § 1983.
Most defendants were immune from suit.
Private individuals (lawyer and therapist) are not immune. They become defendants.
Complaint must charge defendants in a § 1983 suit with agreeing with a state officer to deprive plaintiff of constitutional rights.
Conclusory allegation: these defendants aided the others in continued violations.
Court: Ignore the conclusory allegations and examine the remaining fact allegations to determine if they allege an agreement or conspiracy. (Here they do not.)
Pleading with More Specificity than Necessary
Pleading elements to avoid rule 12(b)(6) motion.
Pleading to broaden discovery.
Rule 54(c): demand specific relief even though not technically required, because defendant might claim lack of notice.
Ability to amend may be greater if plead with more detail.
Amended pleading relates back if it arises out of the same transaction or occurrence.
Claim preclusion—use it or lose it.
Establish facts.
Tell a good story to the court, to the defendant, to lawyers, and to the public.
Heightened pleading (fraud and special damages).
Rule 5(d): Filing the Complaint
Where or with whom?
With the clerk
If the judge permits, with the judge (who must note the date of filing and forward it to the clerk)
By what means?
In person
By mail (filed upon receipt, not mailing)
Filing Fee ($350)/Civil Cover Sheet
The Summons
Rule 4(a): What information must be included?
A summons must:
Name the court and parties
Be directed to defendant
State the name and address of plaintiff’s lawyer or of plaintiff if plaintiff is unrepresented
State the time within which defendant must appear and defend
Notify defendant that failure to appear and defend will result in default judgment for the relief demanded in the complaint.
Be signed by the clerk
Bear the court’s seal
On or after filing the complaint, the clerk will sign, seal, and issue a properly filled out summons for each defendant. (Rule 4(b))
Form 3
Rule 4: Serving the Complaint
What must the plaintiff serve?
A summons and a cop of the complaint (Rule 4(c)(1))
Who can serve the complaint?
Anybody who is at least 18, and who is not a party (Rule 4(c)(2))
Example: process server, private investigator, sheriff’s office
US Marshall: If court so orders
How can a competent adult/individual in the US be served? (Rule 4(e))
Any means authorized by law of state where case filed or law of state where service is to be made
Personal service (delivering to defendant)
Leaving it at defendant’s dwelling or usual place of abode with resident of suitable age and discretion
Delivering a copy to authorized agent
In accordance with any federal statute
How can a corporation, partnership, or unincorporated association be served in the US?
By any means authorized by state law in state where case is filed or in which the service is to be made (Rule 4(h)(1)(A)).
Delivery to officer, managing agent, general agent or authorized agent (follow-up with mailing if agency is authorized by statute and statute so required) (Rule 4(h)(1)(B)).
In accordance with federal statute.
Timing: When must service be accomplished?
Within 120 days unless plaintiff shows good cause (Rule 4(m))
If good cause is shown, court must extend time for service.
If plaintiff fails to show good cause, court has discretion to dismiss without prejudice or extend time for service.
Is there any alternative to actual service?
Rule 4(d): Request defendant to waive service
Plaintiff can mail (or deliver by other reliable means) a complaint, a notice, and a request for waiver (Form 5), two copies of the waiver form (Form 6), and a prepaid means for returning the form. The notice and request must comply with Rule 4(d)(1).
Must be addressed to proper person.
Notice must inform defendant of consequences of failing to waive service, state the date the request was sent, and give defendant at least 30 days to return the waiver.
30 day rule: Rule 4(d)(1)(F)
If defendant in the US refuses to waive service without good cause, the court must impose the cost of service on defendant and reasonable attorneys’ fees and expenses incurred in making the motion for service expenses. (Rule 4(d)(2)).
If defendant waives service, defendant must answer/respond within 60 days after the date the request was sent. Rule 4(d)(3)
The summons and complaint will be deemed served on the date plaintiff files the executed waiver with the court.
Filing executed waiver sets date for Rule 4(m) and the date for SOLs requiring service. (Rule 4(d)(4))
Waiver does NOT include waiver of personal jurisdiction or venue. Defendant only waives objections to process and service of process. (Rule 4(d)(5))
Rule 4(l): If plaintiff actually serves defendant, plaintiff shall make proof of service to the court (server’s affidavit).
Rule 4(k)(1)(A): Serving a summons (or obtaining a waiver) establishes personal jurisdiction over a defendant who is subject to personal jurisdiction in a court in that state.
Bulge Rule (Rule 4(k)(1)(B)): Serving a summons (or obtaining a waiver) establishes personal jurisdiction over a defendant joined pursuant to Rule 14 or 19 who is within 100 miles of court.
Responding to the Complaint
What are the defendant’s options?
Serve and file an answer
Serve and file a motion pursuant to rule 12
When?
If served, within 21 days after service (Rule 12(a)(1)(A)(i))
If service upon defendant within US was waived, within 60 days after date request for waiver was sent (Rule 12(a)(1)(A)(ii))
How do you count days/compute time?
Rule 6
If you file a rule 12 motion, when must you answer?
If court denies motion or postpones ruling until trial, within 14 days after notice of the court’s action (Rule 12(a)(4)(A))
If court grants motion for more definite statement, within 14 days after service of more definite statement.
Rule 12(b) Motions
Lack of subject matter jurisdiction
Lack of personal jurisdiction
Improper venue
Insufficient process
Insufficient service of process
Failure to state a claim
Failure to join a party under Rule 19
Motion asserting these defenses must be filed before a responsive pleading
Rule 12(h): Waiver
If you file a motion pursuant to rule 12, you must include the following defenses or they will be waived:
Lack of personal jurisdiction
Improper venue
Insufficiency of process
Insufficiency of service of process
See Rule 12(g)(2) and 12(h)(1)
If you file an answer rather than filing a motion, you must include these defenses in the answer or an amendment allowed as a matter of course or they will be deemed waived (Rule 12(h)(1)(B)(ii))
Rule 12(g)(2): Consolidation
If a rule 12 motion is filed, all rule 12 defenses must be included to avoid piecemeal motions.