CIVIL PROCEDURE

FALL 2008

PROFESSOR STEPHEN BURBANK

SECTION 1: INTRODUCTION

Rule of Thumb:

-No bright line separating “procedural” v. “substantive” law

1)Burbank’s three reasons on the importance of studying civil procedure

  1. Understanding procedural posture is a key to understanding the substance of any case
  2. Historically, rules of procedure have been central to the development of substantive law
  3. Study of procedural rules is an indicator of our societal values re: dispute resolution

2)History leading up to Rules Enabling Act of 1934

  1. Process Act of 1789 – Required static conformity in federal court procedures. This meant that federal courts had to apply the procedures that were used in their states in 1789.
  1. This became a problem when states began to reform their procedures. Many states began to codify procedure in state statutes – (e.g. New York, the Field Code – merged equity and law but further divided state and federal procedures). With revised state procedures and static federal procedures, there was hodgepodge between state and federal courts.
  1. Conformity Act of 1872 tried to remedy this problem by allowing for “dynamic” conformity where federal courts could modify procedures to match states “as near as may be”; this provision allowed for too dynamic a system and a still lingering lack of uniformity. (problems: (1) fed rules trumped state rules; (2) federal judges applied own understanding of state procedures; (3) Conformity Act did not apply to certain rules distinctly within jurisdiction of federal courts. (Compare, Swift v. Tyson?) Problem: Lawyers required to know rules of many states.
  1. Early American (post-const) history – states were suspicious of equity courts. In 1822, however, Supreme Court, pursuant to statutory authority, promulgated equity procedures for federal courts. These equity procedures were left in place for quite some time, and were eventually revised in 1912. (When the equity rules were revised, a big push began to revise the federal rules in actions at law.)
  1. These previous two points (equity rules + Conformity Act) led to a movement to create a uniform system of federal civil procedure. Movement finally culminated in Rules Enabling Act of 1934. (Now codified as 28 U.S.C. § 2072)

1934 Rules Enabling Act; Congress gave S. Ct power to promulgate rules for Federal District Cts.

  • Sec I; Supreme Ct power to promulgate rules for St law; Sec II; Merged system of law and equity

3)Sibbach v. Wilson; Interpreting the Rules Enabling Act

FACTS: Sibbach claimed to have received bodily injuries in Indiana which were presumably caused by an employee of Wilson Co.  sued  in N.D. Ill. for negligence and money damages.  moved under R 35 for a medical examination of Sibbach.  refused and  responded with motion under R 37 for an order to show cause why  should not be held in contempt.

  1. Substance of the arguments in Sibbach
  1. Sibbach’s dilemma:  had to decide whether to call R. 35’s provisions substantive or procedural. If she labeled them substantive, then the court would have to use the substantive law of Indiana which required a physical examination. If she called them procedural, the court would use the uniform rules of procedure, specifically R. 35. So, ’s raise the argument that R 35 is procedural but it impinges on a substantive right (to be free of bodily invasion) which is prohibited under § 2 of the Rules Enabling Act.
  1. To avoid the dilemma, P admits that Rules 35 and 37 are rules of procedure. She insists, nevertheless, that by the prohibition against abridging subst rights, Congress has banned the rules here challenged. To reach this result, she translates “substantive” into “important” or “substantial” rights. And urges that if a rule affects such a right, albeit, the rule is one of procedure merely, its prescription is not within the statutory grant of power embodied in the Act of 1934. In other words, in some sense, it was “procedural” but nevertheless ran afoul of the rights granted to the ct in the Rules Enabling Act ***She creates a 3 class of law : A procedural right that violates a substantive law*** (Page 8 of Casebook)
  1. Court’s Interpretation of the Act: Turns Sibbach’s argument into their conclusion. Because she admits that it’s a procedural rule, it is therefore procedure. Court supports this conclusion with the following arguments:
  1. Congress meant to work a change in policy so as to emphasize uniformity in federal court procedure; if the court found a substantive violation here, it would open up the floodgates to further litigation
  2. FEDERALISM: Congress would never have intended to nullify substantive rights guaranteed under state law – “touching the broader questions of Congressional Power and obligation of Fed Cts to apply state law is foreclosed” ; purposely restricted to not modify the “subst law in the guise of procedure” (Burbank: WRONG; Congress probably did not have this in mind b/c the rules deal mostly with federal litigation.)
  3. Congress had approved rules (passively); b/c they did not raise any concerns about R 35, there should not be any problems (Frankfurter homes in on this point; one of the reasons no objections were raised is that Congress wasn’t given enough time to review the rules) Note, a recurrent theme: (passive approval by Congress used to support Cts interpretation of FRCP under the REA)
  4. The use of arrest as a sanction was outside the court’s power under R. 37 – and the DC acted improperly by ordering Sibbach’s arrest. By ruling out arrest as a sanction, the court found no invasion of substantive rights. (Stupid argument – Sibbach wasn’t concerned with being arrested – she was claiming that the forced medical exam was the violation of her rights).
  5. IN SUM, the court uses language and legislative history to conclude that a rule of procedure, if it arguably governs procedure, is therefore procedural
  6. Realistically, in creating this “test,” the majority was alleviating concerns about further litigation, and, more importantly, creating DISuniformity in court rules of procedure.

(i)This decision, and later opinions (i.e. Hanna) took the “teeth” out of the Rules Enabling Act by rendering the protection of substantive rights relatively toothless

  1. Frankfurter’s Dissent:
  1. Congressional inaction is not the same as active approval
  2. Major Point: Right to be free from bodily invasion is an extremely important right derived from national law (i.e. a federal statute dictating that parties in litigation did not have to submit to medical examination unless the state in which the case was being tried required such an examination)
  1. A few questions specifically about legal strategy/opinion in Sibbach
  1. Why federal court?

-differences in the law; size of docket (try to get case settled faster); lawyer’s familiarity with diff’t courts

  1. Why try case in Illinois?

-At time of suit (before Rules Enabling Act), if there was no statute in IL re: medical examination, then she would not have had to have an examination; i.e. fed ct have to apply law in state where case is tried.

-More likely than not, this was a TEST CASE where Sibbach’s lawyer, who had a large personal injury practice wanted to see what effect the rules would have on his clients.

  1. Is the Court’s statement of issues valid?

-No, Sibbach did not raise the issue of R. 37, the court itself did – which raises the point that the Supreme Court is using this case to give the rules that it promulgated an air of authority

  1. A few finer points from Burbank’s 3-day discussion of Sibbach
  1. Civil Contempt vs. Criminal Contempt: Criminal Contempt is to punish a party for disobedience of court. Civil Contempt is sought for the benefit of the other party who would benefit from the contemnor’s behavior. W/ civil contempt: “contemnors carry the keys of their prison in their own pockets”; can get out any time they want by obeying order of the court. (so, this is civil contempt; if she submitted to the med exam, she would have been released.)
  2. Delay: Sibbach’s case was pursuant to an interlocutory appeal which highlights what critics of procedure see as a big problem – there should be an attempt to make cases proceed EFFICIENTLY. (this also relates to the Cts willingness to hear the case so as to give the Rules it promulgated an air of authority. )
  3. Why diversity cases? Citizens of states did not want to be subjected to the prejudices of other states.

SECTION 2: PHASES OF A LAWSUIT

I.Common Law Pleading/Code Pleading

  1. Aim of common law pleading:

Was to produce a single issue; this goal was rarely reached. Most potential litigants were thrown out of court on technicalities required by common law emphasis on “form.” This kind of pleading also allowed legal fictions (see Case of the Kettle).; required hiring only the best lawyers in the land because of the technical requirements.

  1. Code Pleading (codified set of rules to govern pleading)
  1. Simplified pleading greatly and lessened problem of lawsuits being dismissed on basis of technicalities. Problems still remained in that some codes required s to state a “theory of the pleadings.” When s wanted to change their theories (in trials, for example), courts would not allow them to do so.
  1. “Fact Pleading” Also problems in that Code Pleading required  to plead all of the facts. If you did not know all of the facts, then you could not sue (limited access to courts). This is now taken care of by discovery.

C.Functions of Common Law/Code Pleading and Changes w/ Modern System

  1. Fact Stating – now accomplished through discovery
  2. Definition of Issues – Now accomplished through discovery and pre-trial conferences
  3. Sham Claims – Meritless claims now disposed of through Summary Judgment
  4. Notice Giving – now the only purpose of pleading (see below)
  1. Pleading Under the Federal Rules of Civil Procedure

General Statement about Pleadings: Guiding principle of pleading under the federal rules is that the pleadings should give notice to all parties of the nature of the lawsuit, sufficient to allow other parties to make pre-trial and trial arrangements. The process is party initiated (the fed ct cannot reach out and discuss the disputes b/w the parties that it deems interesting.)

The intricacies of the pleading system are integrally related with the purpose of pleading – to create an efficient legal system that promotes justice.

Imp considerations: Burdens to Raise; in alleging facts who has the burden to raise?

Specificity – the level of specificity to be included in pleading has major implications in ability to gain access to court and bring disputes forward.

A.Stating the Claim [Rules 8(a), (c), (e), and (f), 9(b), 11; Forms 3-18]

  1. Complaint: Rule 8(a) provides three requirements for complaint:
  1. short, plain statement of claim showing that pleader is entitled to relief
  2. grounds on which court’s jurisdiction depends
  3. demand for judgment/relief sought (the rule the P is invoking to demand relief?)
  1. Exception to Generally Stated Claims: Rule 9(b): Averments of “fraud or mistake” shall be stated with particularity. “Malice, intent, knowledge, or other condition of mind,” however, may be inferred generally.
  1. Dividing the Burden of Allegation/Affirmative Defenses

Three burdens associated with a lawsuit:

  1. Burden of pleading -- often, two questions are asked:

(i)Who has superior access to information?

(ii)Is a specific issue relevant to the lawsuit?

  1. Burden of production
  2. Burden of persuasion (the last two are often combined to refer to “burden of proof”)

4. Claims are divided up into “If” clauses and “Unless” causes

  1.  responsible for “if” clauses (i.e. If . . . facts of case happened, then . . .  is entitled to relief)

b.  responsible for “unless” clauses – affirmative defenses

  1. Rule 8(c) provides s with a suggested list of affirmative defenses. Generally, complainant should avoid saying too much so as not to give the defendant any ground to voice these
  1. Why is the burden of affirmative defenses placed on the ?

(i)Example of bankruptcy: when filing complaint,  should not have to prove that  is NOT bankrupt

(ii) has better access to evidence for affirmative defenses (it’s also a matter of convenience; each P seeking $ in bankruptcy cases should not have to track the $ down

  1. How Particularized must the pleadings be?

(i)8a “short and plain”

(ii)8e1 “simple concise and direct”

(iii)9b sets different standards based on the type of claim and substantive law invoked (see above)

  1. Case Law ConcerningSufficiency of Complaints

a.Sierocinski v. E.I. DuPont De Nemours

FACTS:  was injured while crimping blasting cap mfg by . In complaint,  alleged that ’s negligence caused ’s injuries.  argued that it was not put on notice of what specifics  would claim. D’s made motion for a more definite statement under Rule 12(e)

Issue: how Specific must P’s claim be to withstand a D’s 12(e) motion?

Court responds that s have notified  that their general theory is negligence.

IN SUM, the court rules that under FRCP, the complaint does not need to be specific; P need not be as specific as Form 9 would indicate (P left out date of manufacture of blasting cap, as this would have represented a tremendous burden on them) rather, the  can get the information that it seeks through interrogatories (R 33). Keep in mind the notion of “access to courts.” If s were required to plead all of the facts/evidence, it would be very difficult for s to successfully raise any claims in court. Would require spending lot of $ before facts even pleaded.

Court cites the following statements from R 8:

R. 8(a)(2) “a short plain statement of the claim showing that the pleader is entitled to relief

R 8(e)(1) “each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.”

8(f) “all pleadings shall be so construed as to do substantial justice.”

Editor’s Question # 7 (p. 38): After Sierocinski failed to prevail on the second appeal, could he have proceeded with a different legal theory? NO. Principles of preclusion law would prevent  from bringing a new lawsuit grounded in the same facts as the lawsuit already adjudicated. Therefore, procedural choices one makes in first lawsuit have implications down the road in other suits.

Note; Cts reference to Rule 33 highlights the facts that we ought to think about pleadings in the context of thinking about discovery, no need to be specific in pleadings if we have discovery.

b.Conley v. Gibson

Afr. Am. Members of union sue to enjoin union from racial discrimination in its representation practices.

Court reaffirms holding in Sierocinski, that complaint does not have to provide details of the ’s case. Specifically, complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can(not?) prove a set of facts that would entitle him/her to relief. (i.e. if the case can’t be dismissed pursuant to a 12(b)(6) motion, the complaint is likely sufficient).

Positive: Won’t shut court house door to s who may not have sufficient information to commence law suit.

Negative: Problem with allowing generalized complaints is that they may allow for sloppy lawyering and frivolous lawsuits with no factual basis. How to solve that problem? Sanctions under…Rule 11. (Rule amended in ’93 to say that “may” instead of must; i.e. judge “may” use discretion to issue it.

  1. Rule 11: Ensuring factual basis of lawsuits/sanctions

Main purpose of rule is to deter s’ lawyers from asserting claims that have no basis in law or fact.

  1. When Sierocinski was litigated, Rule 11 was toothless
  2. Since that point, there was gradual movement to account for lax interpretation of Rule 8 – In Leathermancase, court ruled that any limitations on Rule 8 would have to come from the Rules (§ 1983 action here, presented, was not subject to the higher specificity requirement under Rule 9(b) -- and court would not reinterpret 9(b) to include 1983 actions)
  3. Many objections in legal community to expanding sanctions of Rule 11:

(i)would create satellite litigation of every Rule 11 claim, therefore not cost effective or efficient for courts.

(ii)Civil rights lawyers concerned about bringing cases with little factual backing

(iii)Drive wedge between attorneys and their clients

(iv)Decreased access to courts for poor people (more risk averse b/c fear of sanctions)

(v)It would chill zealous but legit litigation and retard the development of the substantive law (Brown v. Board of Educ)

  1. 1983 amendments to Rule 11 did not obviate problems. 1993 amendments (where Burbank got involved) were based on empirical research. Some of the 1993 Amendments are as follows:

(i)In 1983, Rule 11 applied to the pleadings at the instant they were signed. In ’93, the rule makers changed it so that sanctions only applied when a lawyer continued to advocate claims that she knew to be false.

(ii) must also specially identify in the complaint any assertions that s/he cannot prove at that point, but which  believes s/he will be able to prove at a later point.

(iii)(safe harbor provision) Lessening of burden – party has 21 days after being notified by the other party to withdraw the challenged pleading.

(iv)11(c) sanctions – changed in 1993 to have less of an emphasis on fee shifting and more of an emphasis on deterrence (accomplished by leaving imposition of sanctions to judge’s discretion). Murphy (below) says that court may consider the nature of the conduct and the sanctioned party’s ability to pay.

  1. Case Law re: Rule 11

Murphy v. Cuomo

FACTS:  alleged that Zarc, company that manufactured pepper spray had conspired with police to test the spray on innocent people.

Court cites Advisory Committee’s notes that lawyers must “stop and think” about the factual basis of their claim(s). In this case, court found 2 reasons for applying Rule 11 sanctions: (1) Counsel made no reasonable inquiry into applicability of a federal drug statute; (2) Counsel knew when he signed the complaint that  had no factual basis for allegations against Zarc. Really, the basis for imposing the rule here was that P’s attorney continued to invoke the frivolous claim during discovery.

TEST: whether attorney made a reasonable inquiry prior to signing a pleading that it be well-grounded in both law and fact. (assess the conduct of the att; not the result of the litigation.

Note, case of the Cracked Kettle; Question 24, P. 52

  1. Defenses and Objections [Rules 8(b), 12; Forms 19, 20]
  1. Categories of Defenses: Book/Burbank discuss five categories of defenses:

(1)Unrelated to Merits

12(b)(1) Case cannot be maintained in any fed district court

12(b)(3) Venue is wrong

12(b)(7) Another party must be joined before the action goes forward