Fall 2013 Civil Procedure I Final Exam Outline

Fall 2013 Civil Procedure I – Final Exam Outline

Pleadings

Complaint
Rule 8(a) governs what must be in complaint:
Short and plain statement of grounds for subject matter jurisdiction.
Short and plain statement of the claim showing pleader is entitled to relief.
Demand for relief sought.
Rule 10 – Form
Caption stating the name of the court, title of the case, identity of the document, and file (case) number
Body has claims or defenses in numbered paragraphs
Parties are allowed to reference allegations found elsewhere in the document
Parties are allowed to attach to their pleading a copy of a significant written instrument (like a contract)
Legal Sufficiency:
Does P state a claim upon which relief may be granted?
On the face of the complaint, if every fact alleged by the plaintiff was taken as true, does the law provide a remedy for P?
D can challenge whether P has stated a claim under Rule 12(b)(6)
D can make this challenge at other points in proceedings as well under Rule 12(h)(2)
Factual Sufficiency:
If the pleading is legally sufficient, has P pleaded her claim in sufficient detail to proceed in the litigation?
FRCP Rule 8(a)(2) requires that defendant have enough factual information to respond to complaint.
Historically, notice pleading did not require details in complaint, but changed with:
Twombley (2007) and Iqbal (2009):
Court ignores conclusions of law and looks only at alleged facts.
The facts must support a plausible claim.
The court uses its experience and common sense to assess plausibility. This is very subjective.
Pleading inconsistent facts and alternative theories:
Rule 8(d)(2): A party may set out 2 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)(3): A party may state as many separate claims or defenses as it has, regardless of consistency
Pleading with Particularity:
Rule 9(b): In alleging fraud or mistake, a person must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and any other conditions of a person’s mind may be alleged generally.
Rule 9(g): If an item of special damage is claimed, it must be specifically stated
Special damages differ by court
Majority – hospital and medical bills and lost profits for a business are special damages

Dismissal of Complaint
Voluntary Dismissal, Rule 41(a): A plaintiff may dismiss an action (without prejudice, unless P has previously dismissed an action based on or including the same claim) without court order by filing
A notice of dismissal before the other party files an answer or makes a motion for summary judgment in response to the complaint, OR
A stipulation of dismissal signed by all parties who have appeared
Involuntary Dismissal, Rule 41(b): A defendant may move for dismissal, with prejudice
Not dismissed with prejudice if it is dismissed for lack of jurisdiction, improper venue, or failure to join a party under Rule 9
Link v. Wabash R. Co.: Court may dismiss a case on its own motion under 41(b)
General: Defendant’s ways to get the case dismissed
Dismiss complaint (Rule 41)
Dismiss for failure to state a claim (Rule 12(b)6))
Summary Judgment (Rule 56)
Directed verdict (judgment as a matter of law)
Judgment Not Withstanding the Verdict

Defendant’s response
Rule 12: defendant must respond within 21 days of service, either by:
Answer – is a pleading.
Must respond to complaint by:
Admission
Denial – FAILURE TO DENY IS AN ADMISSION ON ANY ALLEGATION EXCEPT FOR DAMAGES.
General denial: deny every allegation
Specific denial: respond to each paragraph/allegation individually
Qualified general denial: admits everything except X
Argumentative denial: pleading contrary facts (bad)
Negative pregnant: denial that is too specific/literal (bad)
Conjunctive denial: deny an allegation that only some of which is false (bad)
Lack sufficient information. Rule 8(b)(5): information must be about something not in your control.
Must raise affirmative defenses, if any:
Introduce new legal claim or practical matter.
Denying the allegation with a new fact. If D is right, P should not win.
Rule 8(c)(1): Includes things like duress, re judicata, statute of frauds, statute of limitations.
If not in answer, affirmative defenses are waived.

Motion – not a pleading. It is a request for a court order.
Rule 12(e) – motion for more definite statement, usually when complaint is unintelligible.
Rule 12(f) – motion to strike, any party can ask court to strike part of the pleading.
Rule 12(b) – most important, motions to dismiss. All defenses under this rule can be raised either by motion or in answer.
12(b)(1) – lack of subject matter jurisdiction
12(b)(2) – lack of personal jurisdiction
12(b)(3) – improper venue
12(b)(4) – insufficient process (did not include correct docs - rare)
12(b)(5) – insufficient service of process
12(b)(6) – failure to state a claim upon which relief may be granted
12(b)(7) – failure to join an indispensable party (Rule 19)
Rule 12(g): Any Rule 12 motion may be joined with any other Rule 12 motions
Rule 12(h) imposes very strict rules on waiver:
The 12(b)(2), (3), (4), and (5) must be put into first Rule 12 response, or else they are waived.
The 12(b)(6) and (7) defenses can be raised for first time at any time through trial.
12(b)(1) can be raised at any time; never waived.If lack of subject matter jurisdiction is discovered at any time, the court must dismiss the case.
Classic Hypo: P sues and D makes timely motion under 12(b)(5) for insufficient service. Court denies motion. Now D files answer and asserts lack of personal jurisdiction therein. NOT ALLOWED because it was waived by not raising it in her first Rule 12 response.

Claims made by defendant
Defendant can assert claims against other parties and sometimes join additional parties
Counterclaim: Claim against an opposing party
Crossclaim: Claim against a co-party
Plaintiff must file answer to a counterclaim so designated, following Rule 12.

Failure to Respond
Rule 12(a): Responsive pleadings must be served within 21 days after the original pleading is served (some exceptions)
Default, Rule 55(a): When a party against whom a judgment for affirmative relief is sought has failed to plead or defend, a clerk must enter the party’s default

 Just a notation in the court’s docket; can be set aside for good reason

Default Judgment, Rule 55(b): If the plaintiff’s claim is for a liquidated amount, the clerk must enter judgment for that amount and costs against a defendant who has been defaulted. If the claim is for an unliquidated amount, the party must apply to the court for a default judgment (holds hearings on damages and enters judgment)
 Can also be set aside for good reason but much harder.

Amendments

Rule 15(a):Whether you can amend pleading before trial
As a matter of course, Rule 15(a)(1): A party may amend its complaint once as a matter of course within 21 days after serving it, or if a responsive pleading is required, 21 days after service of the responsive pleading or 21 days after service of a motion under Rule 12
Other amendments, Rule 15(a)(2): In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
When does “justice so require”?

Balance the moving party’s need to amend, considering any unwarranted delay, with prejudice that will result for the non-moving party, considering any ways to mitigate it.

Time to respond, Rule 15(a)(3): Any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
Cannot amend complaint to add non-diverse party when diversity is sole basis for jurisdiction.
Court would deny amendment and proceed with original parties, EXCEPT for when party is indispensable, in which case court would dismiss case.

Effect of variance at trial, Rule 15(b)
Relevant for issue presented at trial that was not raised in the pleadings
Objection at trial, Rule 15(b)(1): If a party objects to an issue raised at trial that was not in the pleadings, the court may permit the pleadings to be amended when doing so will aid in presenting the merits and there is not prejudice to the objecting party. Court may grant a continuance to enable the objecting party to meet the evidence.
No objection at trial (consent), Rule 15(b)(2): When an issue not raised by pleadings is tried by the parties’ express or implied consent, it must be treated as if raised in the pleadings. A party may move at any time to amend the pleadings to include the issue but failure to amend does not affect the result of the trial of that issue.

Whether an amendment can relate back, Rule 15(c)
An amendment relates back to the date of the original pleading when
Rule 15(c)(1)(A): The law on the statute of limitations allows relation back
Rule 15(c)(1)(B): The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleading
Rule 15(c)(1)(C): The amendment changes the party against whom a claim is asserted, if 15(c)(1)(B) is satisfied and if within 120 days from when the original complaint was filed [Rule 4(m)],
The party to be brought in by amendment received notice of the action AND
Knew or should have known that the action would properly have been brought against it

Notice
Service of process must comply with constitutional and statutory requirements.
Constitutional standard for notice:
Mullane v. Central Hanover Bank:
Notice must be noticeably calculated under all the circumstances to apprise the party of the proceeding (due process violated in this case for parties whose addresses were known – must directly contact them).
Methods under Rule 4 are all constitutional, even if D did not receive the actual notice.
Jones v. Flowers (2006): if P is aware that D did not receive service, P may have to try other means of giving notice.
Due process requires that defendant gets notice and has chance to be heard.
Reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to be heard.
Of such a nature to reasonably convey the required information.
Afford a reasonable time for those interested to make an appearance.
Statutory Requirements (FRCivP Rule 4, or state statute where federal court sits)
Summons must be served with a copy of the complaint [Rule 4(1)]
By any person over the age of 18 who is not a party to the litigation [4(2)]
Within 120 days of when the complaint is filed [4(m)]
Waiving Service, Rule 4(d)
P may request, by first class mail or other reliable means, that D waive service
D has 30 days to return the waiver
If D fails to waive without good cause, the court must impose the expenses later incurred in making service and the reasonable expenses of any motion required to collect those service expenses on D
If D waives service, D has 60 days to answer the complaint (instead of 21)
Serving an Individual, Rule 4(e):
Follow service methods permitted by state law, in the state where federal court sits, OR
Delivering service to the individual personally. Can be done anywhere. OR
Leaving a copy at the individual’s dwelling or usual place of abode with someone of suitable age (usually >16) and discretion who resides there, OR
Delivering service to an agent authorized by appointment or law to receive service of process.
FRCivP generally does not allow service by mail, but some states allow.
Serving a Corporation/Partnership, Rule 4(h):
Follow the state law for service in the forum state, OR
Deliver service to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process.

Personal Jurisdiction
Can be waived – if you don’t object it Court will have power to haul you into court.
One issue to determine: CAN THE PLAINTIFF SUE THE DEFENDANT IN THIS STATE?
Answered exactly the same in federal or state court. The court must have power over:
Defendant herself
Defendant’s property
Three types of personal jurisdiction:
In personam – court has power over person of D (through various contacts). This is the preferable type of PJ but we cannot always get it.
In rem – court has power over D’s property
Quasi in rem – court has power over D’s property
How do we know if Court has power? Set by due process statutes of constitution.
Due process sets outside boundaries of PJ. If case falls within the boundaries, the court has jurisdiction and the judgment is entitled to full faith and credit.
It is not enough to just fall within boundaries of due process. State must also have statue that grants Personal jurisdiction.
Some states do not reach to full extent of due process clause of constitution.
Analytically, on exam ask:
IS THERE A STATE STATUTE THAT ALLOWS JURISDICTION?
Rule 4(k)(1)(A) – Federal Long Arm allows forum’s jurisdictional statute to apply to federal cases.
IS JURISDICTION CONSTITUTIONAL?
Traditional bases?
If not, general or specific jurisdiction?
We start with the Due Process test in this lecture.

In Personam Jurisdiction.
Two kinds:
General – D can be sued in forum on claim that arose anywhere in the world.
Based on D’s presence or domicile in the forum.
Specific – D is sued on claim that arose from contact with the forum (doctrine of relatedness).
Based on D’s consent or forum-direct contacts.
The Constitutional Limit. Chronology of cases establishing PJ rules:
Pennoyer(1878)– gives us traditional bases of In Personam Jurisdiction.
THE SUBSTANTIVE DUE PROCESS TEST HAS NEVER BEEN OVERRULED
D is served with process in the forum. Usually called “presence”.
D’s agent is served with process in the forum.
D is domiciled in the forum (gives general jurisdiction).
D consents to PJ in forum.
Under Pennoyer, it is tough to get PJ. If D is not domiciled or has agent in forum, the only way to get PJ is to catch him in forum for service.
Hess v. Pawlovski(1927) – expanded traditional bases of PJ from Pennoyer.
Non-Resident Motorist Act: by driving into the forum, D gives implied consent to jurisdiction and appoints state officer as agent for service in forum. Every state has this statute to this day.
Court upheld this because it is consistent with Pennoyer, but expanded to include implied consent.
Consent was stretched here based on social contract theory.
International Shoe(1945)
None of traditional bases of PJ from Pennoyer applied.
The court gave a new formula for PJ: “Defendant must have such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice.” But this is totally open-ended and hard to define.
Established standard of “continuous and systematic contacts.”
By now, it is clear we can serve process outside the forum.
It appears there are two tests:
Contact
Fairness
International Shoedoes not overrule Pennoyer, just says what to do with traditional bases does not applyUse “Minimum contact” as the test if D is not present when served.
McGee (1957)– Specific jurisdiction.
Upheld jurisdiction in CA over a TX insurance company after it purchased an AZ insurer and took over CA resident’s policy.
Court emphasized that TX Company had reached in to CA to solicit business, even if it sold just one policy. The claim arose out of the contact with the forum.
It also continued to send invoices and receive payments from CA citizen.
The CA Court had an interest in providing forum for its citizen.
Hanson(1959)
Upheld reasoning fromInternational Shoe and established standard the contact between D and forum must result from “purposeful availment.” D must reach out to the forum.
Here, wealthy woman in PA did business with DE bank for years, then moved to FL. There is no jurisdiction in FL over the bank because the bank did not avail itself to FL; it was a unilateral move there on woman’s part.
Gray v. American Radiator (1961)
OH defendant manufactured a valve that was sold to a PA company who incorporated the valve in a radiator, which was sold to IL customer and injured him in IL. OH company has not done any other business in IL.
Manufacturer put product in stream of commerce + derived benefit from the state where product was sold + expected product to be sold there = upholds personal jurisdiction.
Worldwide Volkswagon (1980)
Supreme court held that OK (site of accident) had no jurisdiction over the NY car retailer and distributor because those defendants did not avail themselves to OK. The only reason the car got there was that Ps drove it there.
Surprising ruling because it is foreseeable that a car is bought in one state and driven through others. Court says foreseeability is relevant but not enough.
It must be foreseeable that D could get sued in the forum. D’s contact with forum must be “such that he should reasonably anticipate being haled into court.”
Court does NOT find this to be stream of commerce case – WWVW did not inject their products into stream that led to OK.
Shaffer v. Heitner (1977)
P owns stock in Greyhound (incorporated in DE, principal place of business in AZ). P sues Greyhound and its officers in DE, based on the officers’ ownership of stock considered to be “present” in DE.
Property in the forum is not enough to satisfy personal jurisdiction. “Historic pedigree” of property as basis for PJ is not enough, must doInternational Shoetest.
“Historic pedigree” argument not consistent with Burnham (later).
Keeton v. Hustler (1984) – Libel
P is NY citizen but sued in NH because of statute of limitations.
Plaintiff doesn’t need minimum contacts with a forum state. Hustler did publish in NH and, even if that is its only contact with the state, is subject to personal jurisdiction there.
Calder v. Jones (1984)
Allegedly libelous story about the CA activities of a CA resident whose career was centered in CA. The harm was primarily felt by P in CA.
Personal jurisdiction upheld over a nationwide publication in CA because publisher was aware that the magazine had a significant circulation in CA, that the plaintiff resided in CA, and that the allegations made in the article would harm her career there.
“Calder Test” to evaluate specific jurisdiction for publishers:
Alleged libelous publication must be directed towards the forum as “focal point” AND
Produce the greatest harm for P in the forum state.
Revell v.