Pleading

Rule 11 Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions:

  1. Applies to every pleading, motion, paper, and argument given to the court
  2. Requires a certification (11b) to be made by the lawyer
  3. 11(b)(1): do not present anything for an improper purpose to cause unnecessary delay or to increase expenses of the other party
  4. 11(b)(2): Claims defenses or other legal defenses must be warranted by existing law or a non-frivolous modification of existing law or to establish new law
  5. You are far better off mentioning something that goes against your case and dealing with it before the other side brings it up
  6. 11(b)(3): Facts have evidentiary support or will reasonably have evidentiary support after the discovery period.
  7. Balance time and effort it takes to get information with probative value of information
  8. If you have no reason to disbelieve your client, you can believe your client.
  9. 11(b)(4): The denials of factual contentions have or are likely to have evidentiary support

Rule 11(c): Sanctions

  1. Initiated by motions or by court sua sponte (on its own)
  2. Rule 11(c)(1)(A) or Rule 11(c)(1)(B): 21 day safe harbor provision to allow party to take back the challenged claim

Purpose of Pleading - Initial papers that begin the lawsuit

  1. Provide notice to the defendant about the case
  2. Exchange factual contentions with defendant so each side understands what is being alleged
  3. Complaint, answer, reply (counterclaim)
  4. Provide a basis on which to challenge the legal sufficiency of the complaint
  5. Narrow down issues of case
  6. Define what is being contended, eliminate issues with no legal basis

Federal Rules pleading elements

  1. Rule 10, Form of Pleadings:
  1. Rule 10(a) governs caption (name of court, title of action, file number, who is designated as judge) of the answer as well as complaint and all other pleadings.
  2. Rule 10(b) requires these responses to be set forth in numbered paragraphs.
  3. In some cases, the defendant may group his responses to parts of the complaint in a single sentence.
  4. Each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
  5. Rule 10(c) authorizes adoption by reference of parts of a pleading in another part of the pleading. P. 610
  1. Pleading must contain a short and plain statement of claim showing pleader is entitled to relief
  2. Demand for judgment for relief the pleader seeks (money, etc)

Requirements in Rule 8 for filing a complaint:

  1. set forth the grounds for the court’s jurisdiction
  2. set forth the claim showing that the pleader is entitled to relief
  3. set forth a demand for the relief sought

Rule 9(b) says party must state with particularity elements constituting fraud

  1. Met when there is sufficient identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer to the allegations.
  2. Setting a higher pleading standard for everything other than fraud would violate Rule 8(a)(2)
  1. Denny v. Carey et al.(Rule 12(b)(6) motion denied, went to discovery)

Fraud: civil wrong that requires that the following elements existed:

  1. False statement
  2. Defendant knew statement was false
  3. Defendant had intent to deceive
  4. Plaintiff was deceived
  5. Caused harm to the plaintiff

Asking for Special Damages in Pleading

Rule 9(g): if an item of special damages is claimed it must be explicitly stated

Distinction between general damage and specific damage

  1. General damages would flow from nature of complaint and don’t have to be specified
  2. Pain and suffering
  3. Loss of earning capacity for an individual
  4. Specific damages are approximate result of actions alleged and must be outlined explicitly
  5. Must make defendant aware of these types of damages
  6. Medical expenses
  7. Lost business profits

How much do you sue for?

  1. If the defendant defaults, the most that can be paid is that which was sought in claim
  2. Enough so you don’t provoke defendant into defaulting and paying but not so much that it appears to be a frivolous case

Pleading in the Alternative

Rule 8(a)(3) allows for pleading in the alternative, regardless of consistency, if the facts as to which pleading is true are unknown.

  1. If you know or are in a position to find out, you must say what you know to be true

Makes sense to make these inconsistent claims in one pleading:

  1. Might get the two different defendants to point the finger at each other and make the case more likely one way or the other to the jury.

Voluntary Dismissals under Rule 41

  1. Automatic dismissal without prejudice only available before an answer is filed or before you file a summary judgment motion UNLESS you have dismissed once before
  2. Or, If the parties agree to the voluntary dismissal
  3. After that, you can only get dismissal without prejudice with leave of court
  4. Res Judicata: Once the claim has been adjudicated, it may not be adjudicated again

Factors used in determining whether to allow plaintiff to dismiss without prejudice:

1.Prejudice to be suffered by the defendant if plaintiff refiles the action

2.Delay

3.Lack of diligence by the plaintiff

4.Extent to which the case has progressed

5.Adequacy of the plaintiff’s explanation for the need to dismiss

Involuntary Dismissal

  1. Supreme Court has held that the district court may order involuntary dismissal sua sponte.
  1. If the plaintiff has taken no action within the given period, the court issues an Order to Show Cause to the plaintiff.

RESPONDING TO A COMPLAINT

Timing of Response through pre-answer motion or answer:

  1. 20 days after service of complaint to respond
  2. May ask for additional time to respond which is usually granted
  3. Pleading that responds to allegations of the complaint and may add new matter as well

RULE 12 MOTION FOR JUDGMENT ON THE PLEADINGS

  1. Fed. R. Civ. P. 12(b) – motions may be raised in pre-answer motion or in answer
  2. You can assert objections under Rule 12 in your answer and then later raise them by a subsequent motion
  3. Rules 12(g) and 12(h) state that if 12(b)(2)-12(b)(5) motions are not properly bundled together or included in an answer/allowable amendment to an answer, they are waived.
  4. 12(b)(6) and 12(b)(7) motions may be filed at any time until trial ends.
  5. Pre-answer motions fatal to case
  6. Rule 12(b)(1): court lacks subject matter jurisdiction
  7. So fundamental and may never be waived throughout the course of litigation
  8. Rule 12(b)(2): court lacks personal jurisdiction over the defendant
  9. Defendant can assert other defenses at the same time
  10. Defendant must assert the Rule 12(b)(2) objection to jurisdiction right away or waive it by failing to do so
  11. Rule 12(b)(3): court is not a proper venue
  1. Pre-answer motions raising defects in the procedure by which the plaintiff has initiated the action
  2. Must be remedied before the case can proceed.
  3. Rule 12(b)(4): insufficiency of process
  4. Rule 12(b)(5): defense of insufficiency of service of process attacks the manner in which the complaint was served.
  5. Can be raised in a pre-answer motion or in an answer
  6. Rule 12(b)(7): defense of failure to join an indispensable party asserts a defect in the scope of the suit as the plaintiff has framed it.
  7. Rule 12(b)(6)
  8. Challenges the substantive merits of the complaint.
  9. Asserts that even if the plaintiff were to prove all the allegations in the complaint, she would still not be entitled to any relief.
  10. Plaintiff whose complaint has been dismissed under Rule 12(b)(6) will virtually always be given at least one opportunity to amend the complaint to state a compensable claim, before her case is dismissed

OTHER MOTIONS FOR RELIEF

  1. Seek a more definite statement under Rule 12(e)
  1. Plainly designed to strike at unintelligibility rather than lack of detail
  1. Move to strike under Rule 12(f)
  1. Can serve a similar substantive function to Rule 12(b)(6) if a claim for relief is not available as a matter of law it can be stricken under Rule 12(f). P. 362

Responding to the Complaintin an Answer:

  1. Challenge Legal sufficiency: Complaint doesn’t allege actionable behavior
  2. General Demurrer under Common Law system
  3. Rule 12(b)(6) under Federal Pleading - for failure to state “a claim upon which relief can be granted”
  4. Challenge Factual sufficiency: Deny that some or all of the facts set forth in the complaint are true
  5. Must be material facts: facts on which the right to recover depends
  6. Denial
  7. Excuse: Yes the facts are true but I have a reason for it
  8. Affirmative Defenses
  9. Common law required the defendant to choose one of these responses but now you can challenge the legal sufficiency, then challenge the factual sufficiency, and then file an excuse

Denials:

  1. General Denial
  2. Denies everything in the complaint
  3. Disfavored under Federal Rules
  4. Only generally deny if you choose to contest every single aspect including subject matter jurisdiction
  5. Specific Denial
  6. Look at each and every allegation in the complaint and either admit it, deny it, or state you are without information sufficient to state a belief as to the truth of the matter asserted
  7. Allegations not denied are deemed admitted
  8. You may not allow testimony by your client that you know is false
  9. If you know something to be true (or false) you must admit it when asked by the Plaintiff (and in the pleadings)
  10. If you represent a client who admits that most of the allegations are true, it would be in your best interest to negotiate a settlement

IMPROPER Answers to Complaints

  1. Under Rule 15, if you make a mistake in the pleading, typically the court will allow you to amend
  2. A bad faith response by stating you are without sufficient information to form a belief is sanctionable
  3. Argumentative denial
  4. You don’t really deny the allegations but you counter-state something that is inconsistent.
  5. Negative pregnant
  6. Answer is so specific that it leaves open the possibility that the allegation is true
  7. Better to just deny it generally
  8. Conjunctive Denial
  9. Plaintive alleges a series of events in a single paragraph and defendant generally denies the paragraph
  10. Makes it seem that the entire allegation is untrue when perhaps only part of the paragraph is untrue.
  11. Zielinski v. Phila. Piers, Inc.(Sandy Johnson’s testimony was incorrect, lawyer didn’t correct him)
  12. It leaves the plaintiff unaware as to what is being admitted and what is being denied.
  13. You should instead admit or deny the details within the paragraph even though this isn’t explicitly required by rules of pleading.
  14. If you file a conjunctive answer that is false and causes prejudice to the plaintiff, it will be stricken and seen as an admission

Affirmative Defenses

Must plead these in your answer or amended answer:

Three factors in determining if something is an affirmative defense:

1)Legal: Issue is if the defense responds to a necessary element in the plaintiff’s cause of action or goes beyond a denial and makes a claim on its own

  1. Contributory negligence

2)Practical: Sometimes it is easier to put burden on defendant to plead a claim

  1. Defendant must allege repayment specifically as an affirmative defense

3)Policy: We want the defendant to be able to assert a claim but we would bar the claim from being brought in certain circumstances

  1. Statute of limitations: If the plaintiff doesn’t assert its claim in x number of years from the time the claim occurred, the plaintiff is not able to sue.
  2. Tells the plaintiff that even if the claims are absolutely true, you can’t bring your claim unless it is brought within the specified time period.

Notice – Rule 4

Due Process clause of the 14th Amendment of the Constitution requires that no person shall be deprived of life, liberty or property without due process of law:

A.Constitutional right to be apprised of the case in advance (notice, opportunity to be heard)

  1. The defendant be aware that the case exists
  2. You give the defendant some good idea about the circumstances out of which the claim arises
  3. Defendant must know when they have a chance to respond to the complaint
  4. Defendant must be given reasonable time in which to respond to the complaint

B.Service of process – statutory and Constitutional requirements that tell you how to serve the complaint on the defendant

C.Notice must be reasonably calculated under the circumstances to apprise all parties of the action

  1. Benefit of notifying beneficiaries must outweigh the cost

D.If you can, try to obtain a waiver of service of process under Rule 4(d)

  1. Send by 1st class mail a request for waiver in writing to individual defendants or person authorized to receive notice.
  2. Must state necessary information about when and how to respond and a form explaining how to return the waiver and informing defendant of nature of waiver process
  3. Gives defendant 60 days instead of 20 days to respond to complaint
  4. If defendant doesn’t waive service of process, D must pay for costs incurred in service of process unless D shows good cause why he should not be subject to cost of service.
  5. Duty to avoid unnecessary costs

E.Basic elements for service of process on individuals (Rule 4(e))

  1. Options:
  2. Service under the rules of the forum state 4(e)(1)
  3. Even if defendant is in another state, service rules of state where suit is filed are adequate
  4. Some states allow service to be sent through certified mail
  5. Service under the rules of the state where the defendant is served 4(e)(1)
  6. If these are more favorable to you, you can feel free to use them instead.
  7. Who can be served?
  8. Defendant personally
  9. Substituted service
  10. 4(e)(2)(b)service on someone’s domicile (dwelling house or place of abode) with someone of suitable discretion who resides there
  11. Service on someone who is designated as an agent
  12. Lawyer, managing agent for corporations
  13. A party to the complaint cannot serve process

Supplemental Pleadings

  1. A supplemental pleading sets forth events occurring after a pleading is filed.
  2. Update the dispute by bringing new facts to the attention of the court, even if they change the relief sought or add additional parties.
  3. Allowed only with court permission
  4. Courts freely grant leave to supplement, unless there is undue delay, prejudice, or bad faith.
  5. Trial should not be delayed

Real Party in Interest

  1. Rule 17(a) requires that “every action shall be prosecuted in the name of the real party in interest.”
  2. Subrogation is basically an assignment by operation of law.
  3. RPI inquiries are to be contrasted with the notion of capacity.
  1. Capacity refers to a person’s or an entity’s ability to sue and be sued.
  2. Rule 17(b)
  1. RPI and capacity must be distinguished from standing
  2. Standing is the legal right to initiate a law suit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.

Representative Suits and Assignments of Claims

  1. Contract claims but not tort claims are assignable for the purpose of manufacturing diversity.
  2. Assignment must be proper – assignee cannot be a mere collection agent for the assignor.
  3. According to §1332(c)(2), the court looks to the citizenship of the decedent, minor, or incompetent and not to the citizenship of the representative.

Amendments- Rule 15

A.You may amend as of right before a responsive pleading is served or if no responsive pleading is required, within 20 days after serving the complaint

a.All parties have opportunity to amend once as a matter of course before a responsive pleading is filed.

  1. After that stage, the party may amend only by leave of Court (Judge’s permission)

The court should freely give leave when justice so requires

a.Weigh the need to amend, taking into account any unwarranted delay against the prejudice to the other side and any ways to mitigate the prejudice

b.Express Consent to Amendment: If an issue was not raised in the pleadings but in the trial, the defendant can say he wants to argue contributory negligence and the plaintiff can give express consent

c.Implied Consent to Amendment: If D or P does not object to an issue that is raised and in fact argues it in response.

  1. Rule 15(c) –question of whether the amended pleading will relate back to the date of the original pleading
  2. Statute of Limitations may bar amendments unless they relate back
  3. Amendments relate back if they arise out of the same conduct, transaction or occurrence as the original claim.
  4. Other party must be on notice about the issues being raised or the general fact pattern out of which the issues arise within the statute of limitations.
  5. Rule 15(c)(3) says that if the party is being amended, the new defendant must receive such notification of the action so they will not be prejudiced and that claim would have been brought against it but for a mistake in identity

DEFAULT JUDGMENT

A.Default

  1. If a defending party fails to respond in an appropriate and timely way, she may find herself in default.
  2. Plaintiff cannot obtain money or other relief on the basis of a default.
  3. Under Rule 55(a), the plaintiff must ask the clerk to enter the default on the docket sheet, it is not automatic
  4. Some courts permit defendant to respond anytime before clerk enters the default
  5. Should make motion for enlargement of time in which to respond under Rule 6(b)

B.Default judgment

  1. Must be obtained in order for the plaintiff to obtain relief
  2. Enforced like any other judgment
  3. Courts prefer to decide cases on the merits rather than on technicalities.
  4. Hearing addressed in Rule 55(b)(2) does not necessarily result in default judgment.
  5. Vested in court’s discretion
  6. If defendant acts in bad faith, or if her failure to respond prejudices the plaintiff, or if the defendant’s assertions on the merits are weak, entry of judgment is appropriate.
  7. Party may move to set aside a judgment under Rule 60(b)(6) only if no other provision of Rule 60(b) applies and if the circumstances are extraordinary.
  8. Lawyer’s negligence is not extraordinary.

Motion for summary judgment under Rule 56

  1. If the facts are undisputed and the defendant is entitled to judgment as a matter of law
  2. For example, if the statute of limitations has run, or if the claim is barred by claim or issue preclusion (res judicata or collateral estoppel), summary judgment may be a vehicle for early dismissal of the case.

Personal jurisdiction doctrine:

  1. Power of the court to render a binding judgment against the defendant and deprive the defendant of personal property
  2. The procedure where process is served will govern
  3. The substantive law of the place where the harm occurred will govern

Types of jurisdiction: