PLEADING

I.SERVICE OF PROCESS: FRCP 4

  1. Service of Process is used often to refer to the delivery to the part or witness of various court orders required by the relevant rules of law to be served upon him, including subpoenas, writs, and other orders that are entered in the course of litigation. The issue here is notice!
  1. The 14th Amendment Due Process Rule: There must be reasonable effort to provide notice! Notice must be reasonably calculated, under all circumstance, to inform interested parties of the pendency of the action and afford them an opportunity to present their objections – to appear and be heard.
  2. Purpose: Ds must have a chance to respond – this highlights the general purpose of all the rules “just, speedy, and inexpensive determination of every action.” – FRCP (1)
  1. Factors: Process Requires Efficiency: The cost of improved service should be less then the cost of what is at stake and the potential problems with reliability. Ask, what makes process fair?
  2. Reliability (P-probability): how reliable are other alternatives?
  3. Cost (C): $ of delivery, $ passage of time, $ to courts, Social $.
  4. Interest at Stake (I): what does the litigant have to loose/gain?
  5. These factors can’t really answer the question but it can help frame the circumstance:
  6. Formula:a new process is insufficient if Calternative means - Ccurrent means < (Palt - Pcur) (I) – The increase in cost must be less then the increase in reliability times the interest at stake.
  1. Case: Green v. Lindsay – Posting of summonses on apt. doors in eviction action deemed unconst. by SC. The SC affirms AC and holds, “merely posting notice on an apt. door does not satisfy minimum standards of due process”. (Means of process must be reasonably calculated to give notice to D) It must go further – they advocate mail but don’t provide a real means or solution. The dissent attacks the superiority of the mail v. posted notice -the difference is not of ”constitutional dimension”.
  1. RULE 4: SUMMONS
  2. 4(a):The Form (consents): clerk signature, seal of court, ID court & parties, directed to D; state name & address of P attorney, time for D to appear, notification of failure to appear = default judgment
  3. 4(b): Issuance:Upon or after filing, P may present summons to clerk for signature/seal. If ok, clerk signs and copy sent to defendant(s).
  4. THE “WHO” OF SERVICE
  5. 4(c)(1): What docs? Summons & complaint must be served together. P responsible for furnishing 120 days (4m) after initial filing.
  6. 4(c)(2): Who serves? Service by a non-party and is at least 18 years old. P can request effectuation through a Marshall or other officer.
  7. 4(d)(2): Service Waiver:D does not waive any objection to venue or jurisdiction by waiving service. There is a duty imposed onto D to save cost – an ethical obligation to avoid unnecessary costs of service. P can do this through solicitation of waiver of all technicalities by sending defendant 2 copies of notice of action & request of waiver of formal service of summons & complaint. To avoid costs, notice and request to waive must be:
  8. (A) In writing and addressed directly to D.
  9. (B) Shall be dispatched through 1st class mail or other reliable means
  10. (C) Accompanied by copy of the complaint & identify court in which filed.
  11. (D) Inform D of consequences of compliance & failure to comply.
  12. (E) Set forth date on which sent
  13. (F) Allow D reasonable time to return waiver - 30 days from date (60 days from the date if D is outside US).
  14. (G) provide D w/ extra copy of notice & request & prepaid means of compliance
  15. If D fails to comply with waiver, court imposes cost of effecting service on D unless good cause for failure be shown – see 4(d)(5)
  16. 4(d)(3):Response Reward: If D returns waiver, gets 60 days rather then usual 20 days to respond to complaint (90 days if outside US)
  17. 4(d)(4):Waiver, cont.:when P files a waiver, action proceeds as if summons & complaint had been served to D – no proof of service required.
  18. 4(d)(5): Failure to Comply Costs: Costs of formal service + reasonable attorney fees, of any motion required to collect the costs of service imposed on D for failure to comply w/ request to waive service.
  19. THE “HOW” OF SERVICE
  20. 4(e): Service upon anyone from whom waiver not obtained, other than a child or an incompetent person, demands a response:
  21. (1): Alternative to Below: (a) pursuant to law of the state in which DC is located OR (b) in which service is effected – P can choose either of these “state” options or the “federal” options below, whatever he wants.
  22. (2) Traditional Methods (reference to 4c2 – who!) (c) Deliver to individual personally (d) leaving copies at dwelling house or usual abode w/ person of suitable age and discretion residing therein (e) delivering a copy to an authorized agent by appoint. or by law to receive service of process.
  23. 4 (e) issue: The 1993 Amendment solidified the state OR federal rule choice. Now P can choose which works best for his needs – state or fed. Before amendment, the state rule would trump the FRCP. Why not pick and choose btwn. fed. “who” and state “how”? It may be generous “who” in Fed. but a very specific “how”. They compliment each other thus splitting over State and Fed. rules disjoin this complimentary union.
  24. 4(l): Proof of Service:if not waived, the person effecting service must make proof thereof – if made by a person other then a Marshall or official, person shall make affidavit thereof.
  25. 4(m):Time Limit of Service: if service not made upon D w/in 120 after filing w/ court, court shall dismiss w/o prejudice or direct that service be effected w/in a specified time. (if good cause shown for failure then court can extend time).
  1. HISTORY OF PROCEDURAL SYSTEM: COMMON LAW V. EQUITY
  1. System at Law: Common Law (The King’s Court)
  2. Jurisdiction: Limited Jurisdiction. There was substantial growth at first but that growth was limited by a catalog of writs for: trespass, debt, covenant (contract breaches), ejectment, trover, replevin, assumpit (breaches of oral contract). The purpose of the writs was to limit # of cases in KC, but b/c KC was speedier and evenhanded; people adjusted their claims to fit into the categories of writs.
  3. Parties: Only defendant and plaintiff. No joining of cases or multiple parties.
  4. Pleadings: The parties had to agree as to the nature of their dispute (narrowing): Stake whole case on:
  5. Law: Then file a demurrer – “I concede the facts/truth but challenge legal sufficiency
  6. Fact: Then file a traverse – “I concede legal sufficiency of claim, but the facts are disputed.
  7. Pleas of Confession/Avoidance: - “I concede the legal sufficiency AND facts but allege additional facts that change circumstance and/or legal significance.
  8. Proof: No formal system
  9. Pretrial (discovery): the pleading system, nothing formal.
  10. Trial:Witness testimony but the parties cannot testify b/c they are biases (they already have their pleadings). No subpoena pwr. – only people who want to testify.
  11. Decision Makers: All considered fact finders:
  12. Judge – handled case where it was a matter of law
  13. Jury - handled case where matter of fact
  14. Oath Helpers – (debt) fact finders more then witnesses
  15. Trial by Battle
  16. Trial by Ordeal
  17. Relief: Money damages only.
  1. System at Equity: Chancery Court
  2. Jurisdiction: Even more limited then CL – where CL is not sufficient to bring a conclusion.
  3. Fraud
  4. Mortgage
  5. Trusts
  6. Specific Performance / Injunctive relief
  7. Parties: multiple parties permitted
  8. Pleadings: No narrowing of issues w/ pretrial motions: no writ categories: no limits on forms or details.
  9. Proof: No clear line btwn. pretrial and trial: Written depositions only
  10. Pretrial (Discovery)/Trial: subpoena testimony, no live witnesses and parties can testify.
  11. Decision Makers: Judges only.
  12. Relief: Beyond money damages – specific performance and injunctive relief.
  1. Common Law v.Equity
  2. Common Law Advantages:
  3. Defined dispute
  4. Fast
  5. Fair – very evenhanded of everyone follows the same rules – weeds out bias
  6. Common Law Disadvantages:
  7. Skewed claim by forcing into categories where it didn’t really fit, hiding real nature of dispute
  8. Artificial Simplification:
  9. Issues may not necessarily be of fact or law
  10. Excluding valid disputes b/c too much formality
  11. No multi party claims – bad at gathering info pretrial (discovery!)
  12. Equity Advantages:
  13. More fair – individualized results!
  14. Allows for more complex cases (law+ equity) – not stuck in formalism + multi parties allowed
  15. Good at gathering pretrial info (discovery!)
  16. Equity Disadvantages:
  17. Cumbersome and takes forever (no limits on forms / discovery)
  18. Allows too much discretion – uneven process allows for bias
  1. Contributions of Both Systems to Modern System: The Move Toward One System
  2. Looking at the history shows divisions and categories of modern substantive law.
  3. Common Law
  4. Pleading Procedure:
  5. Formal, set procedure: complaint, response, motions, etc.
  6. Goal= to agree about the nature of dispute
  7. Properly frame/set up dispute for discovery
  8. Categorical definitions of legal claims
  9. Summary Judgment
  10. Legal decision only
  11. Judge can clean up / throw out cases allowed in by generous pleading
  12. Equity
  13. Discovery
  14. Detailed and lengthy
  15. Balances simplicity of pleading
  16. Bad b/c expensive/ time consuming (reform discovery?)
  1. CODE PLEADING:
  2. Started in 19th Century to make law more flexible and accessible to the people.
  3. This abolished forms of action (strict legal theory) & eliminated law and equity distinction: A Two Step Revolution To Our Current System:
  4. (1) Introduction of Code Pleading:
  5. 1848: David Dudley Field established the FIELD CODE
  6. Requirement: Just the facts! Set out facts in a concise, understandable, and simple way to show you have a cause of action. The facts must demonstrate you are entitled to relief.
  7. (2) Federal Rules of Civil Procedure
  8. Developed/ influenced by code pleading
  9. Some states still follow the Code pleading requirements (NY, IL, CA)
  10. Cause of Action: Every Substantive law has a set of elements that must be proven to show your cause of action.
  11. EX: Elements of Negligence:
  12. Duty of care
  13. D was negligent thus breach of duty of care
  14. Injury is the consequence of breach
  15. Relief – money damages for injury
  16. Substantive law must stand BEHIND the pleading. You cannot make a claim for “public insult” if no such substantive law exists.
  17. Requires Allegation of Fact: plead facts showing a legal right or wrong: gives D notice and allows the court information to either grant relief or strike/dismiss insufficient claims.
  18. Inadequate Complaints:
  19. (1) Fails to allege anything pertaining to elements of law in question (no facts + no conclusions of law)
  20. (2) States conclusions of law pertaining to an element but no facts (no facts, just conclusions) See Gillespie)
  21. (3) Mentions facts that, even if proven, are not legally sufficient to satisfy elements of law (facts and conclusions BUT no match to substantive claim)
  22. Pleading is NOT Proof – it is only establishing a claim for relief, not that the claim is true.
  1. Case: Gillespie v. Goodyear Service Stores – SC of N. Carolina (Code Pleading State): P files a claim, which state no facts, (not even names of Ds) only legal conclusions on which no substantive claim of negligence can be predicated. The trial crt. granted D’s demurrers b/c P didn’t support her COA under code pleading requirements. The SC affirms the demurrers w/ leave to amend on the grounds that a statement of facts “is not only necessary to enable the opposite party to form an issue, and to inform him of what his adversary intends to prove, but to enable the court to declare the law upon the stated facts.”
  1. How much work do we want pleading to do?Marked a shift in requirements of pleadings = shift in function (pleading stage changed from central to content of litigation to merely giving notice to court and D – discovery becomes central to litigation!
  1. FEDERALNOTICE PLEADING GENERAL RULES: FRCP 8(a) - 8(f)
  2. FRCP (1938) govern procedure in all federal district courts and some state that have adopted them (or a similar version).
  3. Main Comparisons with Code Pleading:
  4. Similarities:
  5. Merger of law and equity (FRCP 1)
  6. Both systems design to get away from the arcane complexities equity and common law systems– particularly common law pleadings.
  7. Both designed for clear and simple articulation of legal grievances (no legalize)
  8. Under both systems, must know the elements of the substantive law in question in order to draft a complaint that will survive a motion to dismiss or a demurrer.
  9. Primary difference:
  10. Code Pleading requires allegations of FACTS while FRCP 8 allows for pleading of CONCLUSIONS (although not explicitly stated in Rule 8).
  11. Distinction between allegations of facts and conclusions can be tricky/blurry (hazard of code pleading – see Rannels Case).
  12. Courts may still reject claims as too conclusory despite the FRCP’s allowance for pleading of conclusions (hazard of pleading under FRCP)
  13. A complaint that is sufficient under Code Pleading will satisfy FRCP BUT the reverse is not necessarily true b/c FRCP allows for pleading conclusions.
  1. A Code Pleading Complaint Is Insufficient If:
  2. (1) It fails to allege anything (facts or conclusions) pertaining to an element(s) of law in question.
  3. (2) It states only conclusions of law (no facts) pertaining to an element(s) of law in question.
  4. (3) It alleges facts, that even if true, are not legally sufficient to satisfy the element of law in question.
  1. A FRCP Complaint Is Insufficient If:
  2. Number (1) and (3) above would be insufficient under FRCP pleading.
  3. Number (2) may not be insufficient b/c conclusions of law are permissible IFF they address every element of the substantive law in question & provides D w/ basic understanding of claim.
  1. Correctable and Fatally Defective Complaints (Under FRCP and Code):
  2. Defects (1) and (2) may be corrected by redrafting the complaint
  3. Defect (3) revels that P has no case and thus is a fatal defect!
  4. Sometimes the court cannot tell if a complaint suffers from (3) rather then (1) or (2). Generally, if there is a reasonable chance that an amended complaint could cure the defect the court will grant leave to amend. After amend., the court may dismiss w/ prejudice if based on their determination the complaint alleges no facts/conclusions that are legally sufficient.
  5. RULE 8 – General Rules of Pleading
  6. 8(a): Claims for Relief: a pleading which sets forth a claim for relief must contain:
  7. (1): a short and plain statement of the grounds upon which the court’s jurisdiction depends.
  8. (2): a short and plain statement of the claim showing that the pleader is entitled to relief.
  9. Functional Test: Will the court and D know what the complaint is about?
  10. Technical Test: Are all elements of law satisfied?
  11. (3): a demand for judgment for the relief the pleader seeks.
  1. Why Keep it Simple (plead only the minimum to satisfy 8(a)):
  2. If not sure about the facts (if they can be proved), leave them out.
  3. Case may be weak
  4. If D has more info then P: strategy to make D come out with it
  5. Don’t want to revel whole strategy in complaint – keep some key facts to yourself.
  6. Discovery will be more in-depth and broad – go on a fishing expedition!
  7. Drag out for better settlement
  8. Why Make if Specific (plead more then 8(a) requires):
  9. To make sure your complaint gets through (no dismissal, or amendments).
  10. Efficiency – may be faster and easier to get settlement/judgment if strong case
  11. Intimidate other side w/ strong complaint
  12. Start off well in face of court & judge – persuade them to your case 1st
  13. Keep discovery limited to what is alleged – no broad fishing expeditions
  14. D will have to admit or deny each fact pleaded w/ particularity (make D revel more)– the facts admitted are considered facts for the remainder of case.
  15. Public documents – press worthy material can sway settlement/judgment.

Case: Rannels v. Nichols, inc. – The Fed. Crt. of Appeals reverses a Dist Crt. decision to grant D a 12(b)(6) motion for P’s failure to state facts not conclusions of law. FRCP 8(a) only requires a “short and plain statement of the claim”. DC dismissed on Code pleading requirements when claim was sufficient under FRCP, which governed the situation.

  1. 8(b): Defenses; Forms and Denials: D shall state defenses to each claim and shall admit or deny the claims put forth by P. D should state if he is w/o knowledge or info. sufficient to form a belief as to the truth – this will be regarded as a denial. D should deny with specificity! Rarely can D make a complete or general denial or deny everything except certain paragraphs. This would be subject to Rule 11.
  1. 8(c):Affirmative Defenses: In D’s answer to P’s pleading, D may set forth any affirmative defenses. If D mistakenly designates an AD as a counterclaim or vice versa, the court will treat the pleading w/ proper designation as justice so requires. 8(c) is not an exhaustive list of affirm. defenses.
  2. Affirmative defense is not a negation of P’s allegations but a raising of new facts that modify (akin to confession/avoidance under common law system pleading).
  3. Affirmative defenses must be pleaded w/in the answer b/f trial b/c:
  4. P shouldn’t be surprised at trail – needs to know what to prepare for.
  5. Determines which party has burdens – If bringing an affirm. Def. D gets burden of proving new facts are true.
  6. 8(d): Effect of Failure to Deny:Any allegation that requires a responsive pleading is deemed admitted if not denied. Allegations that do not require/permit a responsive pleading are deemed denied or avoided.
  1. 8(e): Consistency:(1)Each averment should be simple, concise and direct – no technical forms required. (2) When 2 or more statements are made in the alternative, one’s insuffic. does not mean all are insufficient. (3) all are made subject to FRCP 11 (so still must be aware of unsupported claims). Pleadings theories do not have to be consistent!! (They’re mutually exclusive of each other.
  1. 8(f):All pleadings shall be construed as to do substantial justice.
  1. PLEADING SANCTIONS: FRCP 11
  2. Purpose: Imposing a check on the liberal notice pleading standards and deterrence of abuse (not punishment). Impose limits on attorneys going forward with useless, frivolous, and uninvestigated claims. The attorney’s conduct need only be unreasonable – conduct need not be willful or intentional (i.e. good faith beliefs that are mistaken = still subject to 11).
  3. History:
  4. Before 1983: It was more of a Good Faith Rule: It had no teeth thus did not help deter frivolous suits.
  5. 1983 Amendment: Added objective standard: court SHALL impose sanctions and fee shifting caused a “chilling effect” on attorney’s bringing claims. Amend. had too much teeth it was deterring meritorious claims.
  6. 1993 Amendment: Added subjective standard: court MAY impose sanctions. Fee shifting not mandatory - $$ goes to court not adversary (monetary and non sanact.) Creates “safe harbor”.
  1. 11(a): Signature:a signature of attorney or unrepresented party is required on all written pleadings, motions, etc.. Unsigned paper will be stricken unless omission is corrected promptly.
  1. 11(b):Representations to Courts:By presenting a signed document to the court, the attorney is attesting that the info. In pleading is “to the best of the person’s knowledge, information, and belief, formed after a reasonable inquiry under the circumstances.”
  2. (1): claim is not being presented for any improper purpose such as to harass, delay, or increase cost
  3. (2): claim is warranted by existing law or by a non-frivolous argument.
  4. (3): claim has evidentiary support or is likely to have evidentiary support after reasonable investigation or discovery.
  5. Construed broadly: loophole rendering Rule 11 meaningless
  6. Construed narrowly: blocked access to discovery for meritorious lawsuits.

Case: Business Guides v. Chromatic Enterprises – SC, 1991 (under 1983 rules): P complained of 10 seeds in a competitor’s directory and sought a TRO signed by P attorney. DC clerk found 9/10 were not copyright infringement. DC referred issue to magistrate where Rule 11 sanctions could be brought due to (1) TRO filing w/o proper research (2) failed to inquire about accuracy after learning of clerk’s discovery. No bad faith but Rule 11 violated b/c failed to correct erroneous filing when claims could have easily been found groundless with sufficient research (11b3).