Civil Procedure
Pleading
Pleading = paper containing factual assertions that support jurisdiction and legal claims in a civil law
suit
Rule 7 = what pleadings are allowed
Rule 10 = Form of Pleading
Rule 11 = Signature
Rule 8 = Facts
Rule 38 = Right to Jury Trial
Rule 5 = Filing
Rule 4 = Summons
Evolution of pleading requirements:
Common law pleading (form pleading)
Code pleading (fact pleading)
Federal Rules (notice pleading)
Pleading by the Plaintiff
What's your Complaint?
Complaint is the pleading that a plaintiff files to start a lawsuit
A pleading sets out the facts and legal reasonings behind the claim
Claim
Rule 8(a)(1) = short and plain statement of the grounds for jurisdiction
Rule 8(a)(2) = short and plain statement for relief; applies to all complaints except for those
alleged in 9(b)
Dioguardi v. Durning
what is required in the complaint under R8(a) to survive a 12(b)(6) motion to
dismiss?
short and plain statement of the claim showing that he is entitled to relief
if court can find theories for relief in the complaint, it should survive a motion to
dismiss
Conley
Only need enough facts to show a claim
complaint should not be dismissed unless there are no facts to support the
plaintiff's claim
give defendant notice of the claims and the grounds in which it rests
Rule 8(a)(2) is the default rule
Rule 8(a)(3) = prayer or demand for relief
Demand for Relief
Complaint Checklist
substantive requirements
jurisdictional allegations
short and plain statement for relief
demand for relief
form requirements
captions
separate paragraphs and sections
date, signature, and attorney contact information
jury demand (if desired) = R38
Serving and Filing Pleadings = Rule 5(d)
Summons = Rule 4
Heightened Pleading in the Complaint
Rule 9(b) = heightened pleadings; fraud and mistake
Fraud or Mistake = specific
malice, intent, knowledge, etc. = general = rule 8(a)(2)
pleading must state with particularity
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit
What kinds of cases does Rule 9(b) apply to?
9(b) imposes heightened pleading for cases with fraud and mistake and cannot
extend to other types of cases
Can courts judicially require heightened pleading?
courts cannot adopt special heightened pleading standards for certain categories
Expressio unius est exclusio alterius - expression of one thing implies the exclusion
of the others
Bell Atlantic Corp. v. Twombly
Plausibility pleading
Ashcroft v. Iqbal
Does the respondent's claim plead sufficient facts to state a claim for purposeful and
unlawful discrimination?
plausible inference
3 part analysis for 12(b)(6) motion
taking note of the elements a plaintiff must plead to state a claim
court must accept as true only well-pleaded factual allegations
on the basis of those allegations, court must decided whether the claim is plausible
Rule 9(g) = special damages
Plausibility Pleading in the Complaint
Twombly - retired Conley standard
Changes standard of 8(a)(2)
Ethical Obligations in Pleading (Reasonable Inquiry and Good Faith Arguments)
Rule 11
Standards for care and candor
Procedure for violations
pleading standard under 11(b)
inquiry reasonable under the circumstances (objective)
no improper purpose
frivolous legal contentions
factual contentions without support
denial of facts without justification
Hays v. Sony Corp. of America
what constitutes a reasonable inquiry under the circumstances for rule 11?
Hunter v. Earthgrains Co. Bakery
What is the scope of Rule 11(b)(2)?
What does it mean to be a non-frivolous argument to change the law?
Snapshot Rule - at time of filing
Procedure for Rule 11 Sanctions
usually imposed on motion but can be imposed sua sponte
party must serve the R11 motion on the opponent 21 days before filing
Safe harbor Provision = 11(c)(2)
served not filed
allows for opponent to withdraw the offending paper
discretionary and must be proportional to offense
clients cannot be sanctioned for violations of R11(b)(2) - the legal basis
Types of Sanctions
fee-shifting
discussion on record
compulsory legal education
fine payable to court
formal reprimand
educational exercise
Responding to the Complaint
The Default Option
Virgin Records v. Lacey
how do plaintiff's obtain a default judgement?
motion for entry of default
Rule 55(a) = when defendant fails to respond to the summons
Rule 55(b) = motion for default judgement is entered by the clerk
Moving to Dismiss
12(b)(6)
Answering the Complaint
when is the answer due?
Rule 12(a) = 2 deadlines
21 days
waive service = 60 days
motion denied = 14 days
Rule 6(b) = motion for extended time - good cause
Answer checklist
caption = rule 10(a)
if answer has a counter or crossclaim
jurisdictional statement = 8(a)(1)
prayer for relief = 8(a)(3)
date, signature, etc. = rule 11(a)
form = 10(b)
defenses = 8(b)
Defenses, Admissions, & Denials
rule 8(b)
admit
express
implicit = rule 8(b)(6)
denials = what has to be resolved at trial
general denial = 8(b)(3)
specific denials = 8(b)(4)
lacking knowledge = 8(b)(5)
affirmative defenses = 8(c)
ordinary defenses = 12(b)
Adjusting the Pleadings and Expanding the Lawsuit
Amending Pleadings while there is still time
Rule 15
Rule 15(a) = Before Trial
(a)(1) = no motion needed if satisfies:
A)
B)
only needed to file amended pleading
(a)(2) = not controlled by (a)(1), party can amend by:
getting written consent by opposing party OR
court's leave - motion for leave to amend & copy of amendment
(a)(3) = tells defendant when to file amended answer after an amended pleading
14 days
Rule 15(b) = During and After trial
Some issues are not raised in peladings but brought up at trial
b(2) = if parties agree (consent) court should allow it
b(1) = parties in disagreement about amendment; court may permit amendment to
pleading
objecting party has burden of showing predjudice
Amending pleadings once time has run out
Rule 15
Rule 15 (c)
must satisfy all factors in 15(a)
(c)(1)(a) = if statute allows
(c)(1)(b) = legal claim/defense
allowed if:
it arises out of the same transaction or occurrence
focus on operational facts
opposing party has notice
(c)(1)(c) = change to party
satisfy 15(c)(1)(b)
within rule 4(m) period notice
knowledge but for mistake
misnomer
quality
allowed
deliberate
misunderstand
allowed
ignorance
not allowed
Kruspki v. Costa Crociere
Rule 15(c) allows an amended pleading if:
the claim involves the same transaction or occurrence
the new defendant received notice of the lawsuit
the new defendant knew or should have known it would have been sued if it wasn't for
the plaintiff's mistake
Expanding the Lawsuit: Joinder of Parties and Claims
Joining Plaintiffs' Claims, Joining Parties & Counterclaims
Rule 18 = Joinder of Claims
May join related or unrelated claims
claims 2+ governed by rule 18(a)
res judicata (8(c)) = can only sue a defendant once for the same set of facts
Rule 20 = Joinder of Parties
May join parties if:
same event or occurrence
common question of law or fact
Rule 21 = misjoinder
Rule 42(b) = separate trials
Rule 13 = Counterclaims
13(a) = must if counter if claim arises out of same event or occurrence
logical relationship test
See p. 623
13(b) = may join any other claim
Crossclaims and Impleaders
Rule 13(g ) = Crossclaims
claim for relief from coparty
may if claim arises from same event or occurrence
Rule 14 = Impleader
14(a)(1) = may - only if third party may be liable to defendant for all or part of plaintiff's
claim against defendant
contribution = part
indemnification = full
Bringing a Class Action
Rule 23
one or more representatives to file and prosecute on behalf of a larger group
Procedure:
file complaint
file motion for class certification
2 distinct phases in suit
Should class be certified?
normal phases of litigation
Floyd v. City of New York
Common Class Action Categories:
Consumer rights- negative value suits
Environmental - injunctive in nature; can be for money
Mass torts - against corporations for harms cause by defencts or products; 23(b)(3)
Civil Rights - equitable relief
Alternatives to Class Actions
regulatory agency
individual suits
joint claims
Discovery
Introduction, Informal Fact-finding, & the Scope of Discovery
Roadmap:
what information are you entitled to learn? (scope)
what formal procedure tools are available to learn that information?
what if an adversary refuses to comply?
Rule 26(b)(1) = Scope of Discovery
non-privileged
Rule 26(b)(5) = asserting privilege
attorney-client communications
communication
made between privileged persons
in confidence AND
for the purpose of obtaining or providing legal assistance for the client
work product doctrine
protects some evidence not covered by att-client privilege
access to work product:
necessity = essential to the prep of case
undue hardship = cannot get it any other way
Rule 26(b)(3) = anticipation of litigation; opinion work product (always privileged)
Expert Work Product
Rule 26(b)(4)
testifying = partially protected - final reports must be disclosed
non-testifying = protected
relevant
any claim or defense
proportional
importance of the issues
amount in controversy
parties relative access to information
parties' resources
importance of discovery
burden ($$$) outweighs the benefit
Discovery Tools:
Mandatory Disclosures
Rule 26(a)(1) = initial disclosures
"provide to other parties"
don't need to file
only need to file discovery as most crucial
4 categories
only need to disclose favorable:
i - witnesses
ii - documents
iii - computation of damages
iv - insurance info
Sequence of Discovery
Interrogatories
Rule 33
only to parties
written questions
limited to 25 unless otherwise agreed upon
written response within 30 days (unless modified)
signed by person who makes answer
objections signed by counsel
answer under oath
Requests for Production of Documents
Rule 34
only to parties
no limit to # of documents
Rule 45 = Subpoenas can be used to get documents outside of parties
Rule 26(c) = protective orders
34(a)(2) = can visit land for inspection of property
E-Discovery
Rule 34
judges in discovery
ESI - electronically stored information (34(a)(1)(A))
Rule 37(e) = failure to implement e-discovery litigation hold
sanctions
Depositions
Rule 30
30(b) = what must be included in notice
subpoena must be sent to non-parties (R45)
limit to 7 hours per witness unless otherwise specified
limit to 10 depositions per side unless otherwise specified
Physical and Mental Examinations
Requests for Admission
Rule 36
written request
no default limit
written response & objections
mainly used to authenticate documents
Sanctions for Discovery Abuse
Rule 26(g)
signing disclosures and discovery requests, responses, and objections
governs ethics during discovery
replaces rule 11
26(g)(2) = no signature - court must strike and other party has no duty to act
26(g)(3) = sanctions
on motion or sua sponte
Process for sanctions (under 26(g)):
must sign request or response
must attempt to respond
may file a motion or act sua sponte
Process for sanctions (under 37):
good faith effort to confer
motion to compel
motion for protective order
if party does not comply = sanctions
Pre-Trial & Trial
Pretrial Case Management
pretrial conference
rule 16(a) = purpose
rule 16(c) = topics; matters for consideration
Dispositions without Trial
Voluntary Dismissal
Rule 41(a)
By plaintiff
notice
bright line test
notice before answer or motion for summary judgement
only once under this provision
effect: without prejudice; can be re-filed
Rule 41(a)(2) = dismissal by a court order
with predjudice = dismissal on merits
without prejudice = not on merits or specified by the judge
Involuntary Dismissal
Rule 41(b)
Motion by the defendant or sua sponte
failure to prosecute
with prejudice
Summary Judgement
Rule 56
56(e) - must respond to each element in a motion to Summary Judgement
56(f)(3) - can be sua sponte
56(h) - bad faith motion; court can:
fine attorney
hold in contempt or other sanctions
Summary judgement tests the need for trial
granted = no need for trial because there is no material dispute of fact
Is there a genuine dispute as to material fact?
judge is only looking at if there is a dispute
if yes = denial
what substantive law governed the plaintiff's claim?
governs which facts are considered to be material
what facts are material to applying the rule of law?
Categories of summary judgement:
disproof of an element
absence of proof
naked motion for summary judgement
motion with no evidence
not allowed
there must be evidence to support a motion for summary judgement
evidence must be admissible in trial
proof of elements:
plaintiff move for SJ
greater burden of proof
can lead to partial SJ
Right to Trial by Jury
7th Amendment = suits at common law
civil cases
applies in federal courts
subject to more than one interpretation
7th Amendment = preserved
look to English common law courts in 1791
historical test
if remedy was available at common law in 1791
if remedy was available at equity court
in 1791
jury trial applies
jury trial does not apply
damages ($$$)
specific remedy
Mixed action = both common law and equity law
legal and equitable claims
involve same question of law
resolve traditional legal claim
right to jury can be based on counterclaim
Applying the 7th amendment to new statutory rights
Claims that did not exist in 1791 - parties may have right to jury trial if:
congress authorized a jury trial by statute
test if the 7th amendment applies
is the claim more like one tried in common law or equity?
is the remedy traditionally available under common law or equity?
Rule 38 = right to jury trial
written demand
by any party
Rule 39 = trial by jury or court
Judgment as a Matter of Law
New Terminology
Old Terminology
Motion for Judgement as a Matter of Law
Directed Verdict
Renewed Motion for Judgement as a Matter of
Law
Judgement notwithoutstanding the verdict
50(a) - start with substantive law
shows plaintiff burden of proof
50% and a feather
reasonably jury could find for plaintiff
must make at least one 50(a) motion in order to make a 50(b) motion
50(b) - same standard as 50(a)
was there a legally sufficient evidentiary basis to support the jury verdict?
Controlling the Jury
Evidence admissibility
objections
minimize risk of prejudice
minimize jury bias
minimize confusion
in order to appeal an error must show error lead to predjudice
Jury Instructions
patter jury instructions = broad
2 sources
parties
judge (pattern jury instructions)
Rule 51
2 step process
request (R51(a))
object (R51(c))
gives judge time to correct a mistake
exception: R51(d)
assigning error
plain error
substantial right
small errors don't result in a reversal
must look at the instructions as a whole
Jury verdicts
3 kinds of verdict forms
Rule 49(a) = special verdict
general verdict
Rule 49(b) = general verdict with written questions
Rule 49(b)(4) ** = inconsistent answers with each other and the verdict
Motions for New Trial and for Relief from Judgement
4 post trial motions - these can be filed more than once
Rule 50(b) = renewed JMOL
Rule 59 = motion for new trial
28 days after entry of judgement
can be joined to a RJMOL (in alternative)
motions have different standards and basis for error
combined motions
deny JMOL; deny new trial
deny JMOL; grant new trial
cannot appeal until new trial is over
grant JMOL; grant new trial
conditional
Rule 50(c) = court must rule on all motions
grant JMOL; deny new trial
3 categories for new trial (errors)
weight of the evidence
process errors
new evidence = after 28 days, but within a year (R60(b)); could not have been
discoverable under due diligence during discovery
Rule 59(e) = motion to alter and amend judgement (remittitur)
Rule 60 = motion for relief from judgement
60(b) = grounds for relief
60(c)(1) = within a year
if (b)(1-3)
60(a) = court can correct a clerical mistake
can be through a motion or sua sponte
Rule 50
Rule 59
court does not weigh evidence
court may weigh evidence
court cannot asses credibility
court can asses credibility
construes all reasonable doubt against movant
does not resolve doubts
is there a legally sufficient evidentiary basis?
is the verdict clearly erroneous and against
evidence?
Remedy: grants judgement and decides case
Remedy: rejects jury verdict and orders a new
trial
Post-Trial & Appeal
The Final Judgment Rule and Its Exceptions
Mechanics of a federal appeal
final judgement
notice of appeal in trial court
note judgement being appealed
30 days from final judgement
record appendix to file brief
40 days
appellee files brief
appellant files reply brief
possible oral argument
reviewability
three "P"s
prejudicial = R61
preserved in trial court
party must make record preserving claims of error
party must timely object, request relief, and state grounds for objection
exceptions:
plain error
pure question of law
no opportunity to raise
great public concern
presented to appeals court
Final judgement rule
28 U.S.C. S 1291
scope of appellate jurisdiction
interlocutory appeal is not final
exceptions:
collateral order doctrine
interlocutory decisions (12 U.S.C. S1292)
54(b) = judgement on multiple claims or involving multiple parties