CIVIL PROCEDURE CLASS 8
Professor Fischer
Columbus School of Law
The Catholic University of
America
Sept. 18, 2001
WRAP-UP OF LAST CLASS
• Service and filing requirements for
Answers (Rule 5)
• Pleading requirements for Answers:
8(b)-(e)
• Only types of responses in Answer:
Admissions, denials, deemed denials,
12(b) defenses, affirmative defenses
(8(c) )
WHAT WILL WE DO TODAY?
• We will continue to examine admissions, denials
and deemed denials
• We will discuss amendments and FRCP 15. Time
permitting, we’ll discuss relation back.
• We will discuss Practice Exercise 9.
• We will end this class early (at 7:45) to enable any
students who wish to do so to attend the 8:00 p.m.
University candlelight vigil for the victims of last
Tuesday’s tragic events.
3 PLEADING OPTIONS IN
ANSWER
• Admit
• Deny
• Deemed Deny
ADMISSIONS
• 8(b) - Can make specific admissions
• 8(d) - Anything not denied is deemed admitted SO BE CAREFUL!
• Exception - where an answer would subject a
party to criminal charges, the 5th Amendment of
the U.S. Constitution protects him
DENIALS
• 8(b)- D need only deny allegations in the complaint
that she actually disputes. It’s typical to deny entire
paragraphs but that is not always appropriate - see
UNUSUAL Zielinski case (E.D. Pa. 1956) (see at:
http://classes.washburnlaw.edu/lass/coursemat/200
0fall/cases/Zielinski_v_Philadelphia.htm)
• Specific Denial - deny particular portion of a claim
(see Rule 9 for some matters that must be
specifically denied)
• General Denial - deny each and every averment of
Complaint
DEEMED DENIALS
• Effect of pleading that D is “without knowledge
and information sufficient to form a belief as to
the truth of an averment”.
• How much inquiry must a D make prior to
pleading a deemed denial? See Greenbaum v.
U.S. (E.D. Pa. 1953) ; Controlled Environment
Systems v. Sun Process (N.D. Ill. 1997)
Greenbaum v. U.S.
• What was substantive dispute?
• What was the procedural issue?
• How did the E.D. Pa. Resolve this procedural
issue?
• Didn’t court disregard anti-waiver provision of
12(h)(3)?
Controlled Environment Systems v. Sun
Process Co., Inc.
• What was the problem with the plaintiff’s
pleading in para. 10 of the answer to
counterclaim?
DEEMED DENIALS
• 1. One can lack knowledge but still have
enough information to form a belief under 8(b)
• 2. Denials containing the phrase “on information
and belief” is generally accepted but is not
recognized as a denial by 8(b)
AFFIRMATIVE DEFENSES
• Some defenses must be affirmatively pleaded
under 8c
• 1. ENUMERATED: E.g. contributory negligence,
fraud, res judicata
• 2. UNENUMERATED: Also “any other matter
constituting an avoidance or affirmative defense”
• CONCEPT: Is D relying on some new facts that
would come as a surprise at trial?
UNENUMERATED AFFIRMATIVE
DEFENSES
• How does the D know if something is an
affirmative defense or not?
UNENUMERATED AFFIRMATIVE
DEFENSES
• How does the D know if something is an
affirmative defense or not?
• Research - there may be relevant court opinions
• D may be able to construe statutes to discern
whether language gives rise to affirmative
defenses
CONSEQUENCE OF FAILING TO PLEAD
AN AFFIRMATIVE DEFENSE
• What happens if D fails to plead an affirmative
defense?
CONSEQUENCE OF FAILING TO PLEAD
AN AFFIRMATIVE DEFENSE
• The defense will be waived, unless the court
allows amendment
• In determining waiver, courts will examine:
• 1. whether P had knowledge of the facts
• 2. Prejudice to P resulting from failure to plead
• If wrongly plead as counterclaim, court will
relabel as affirmative defense
BURDEN OF PROOF FOR
AFFIRMATIVE DEFENSES
• Who bears the burden to prove an affirmative
defense?
BURDEN OF PROOF FOR
AFFIRMATIVE DEFENSES
• Party raising the affirmative defense must prove
it at trial
• NOTE THAT AFFIRMATIVE DEFENSES
GERNERALLY SHIFT THE BURDEN OF
PROOF ON THAT DEFENSE
RESPONDING TO AFFIRMATIVE
DEFENSES
• How should plaintiff respond to an affirmative
defense?
RESPONDING TO AFFIRMATIVE
DEFENSES
• All affirmative defenses are AUTOMATICALLY
DENIED under 8(d). No response is required.
AMENDMENT
• Why would a party wish to amend his
pleading?
• What federal rule rule governs amendment?
AMENDMENT
• Why would a party wish to amend his
pleading? Events have changed since
original pleading filed, new factual
information as a result of discovery gives
rise to new claims/defenses
• What federal rule rule governs amendment?
FRCP 15 - Bear in mind that local rules may
contain additional limitations or requirements for
amendment of pleadings
DO YOU NEED THE COURT’S
PERMISSION TO AMEND?
DO YOU NEED THE COURT’S
PERMISSION TO AMEND?
• Sometimes: some amendments may be made
without leave (permission) of the court, others
require leave of the court.
• 1. A pleading can be amended ONCE as a matter of
course at any time BEFORE A RESPONSIVE
PLEADING IS SERVED – see Rule 7(a) for
information on responsive pleadings
• 2. A pleading can be amended without leave WITH
WRITTEN CONSENT OF THE ADVERSE PARTY.
AMENDMENTS WITHOUT LEAVE
OF COURT - 15(a)
Doris Defendant serves her answer on Paul
Plaintiff on October 2 and files it on October
3. Can she amend without leave on October
19?
AMENDMENTS WITH LEAVE
• All other amendments (other than those
described on the last slide) require leave of
the court or WRITTEN consent of adverse
party (15(a))
• BUT REMEMBER : Rule 15(a) -- “leave shall
be freely given where justice so requires”.
AMENDMENT HYPO
• Jane serves a complaint on Roger in federal
court alleging negligence. After Roger serves
his answer, Jane wants to amend her complaint
to add a claim for breach of contract. Roger
refuses to consent to the amendment. Jane
files a motion with the court seeking leave to
amend. What is Jane’s burden on the motion?
What is Roger’s burden?
LEAVE TO AMEND IS
FREQUENTLY GRANTED
• Leave will generally be granted UNLESS:
• 1. The amendment would unfairly PREJUDICE the
other party.
• 2. The party seeking amendment is guilty of
unjustified DELAY. (Note that chances of
successfully amending go down the closer you get
to trial).
• 3. The party is seeking amendment in BAD FAITH.
• 4. The amendment would be FUTILE.
ANOTHER AMENDMENT HYPO
• Sylvester sues Tweetie for personal injuries.
After Tweetie serves his answer, Sylvester
wishes to amend his complaint to add a claim for
libel. Sylvester faxes Tweetie a copy of the draft
amendment, then calls Tweetie up and asks
Tweetie if he will consent to the amendment.
Tweetie says, “sure”. Advise Sylvester as to
whether he needs to do anything more to ensure
the amendment is valid.
STILL ANOTHER HYPO
Polly sues Dave and Doug for intentional
infliction of emotional distress. Dave serves
his answer 10 days after the complaint is
served on him. Doug files a Rule 12(b)(2)
motion to dismiss 5 days after the complaint
is served on him. Polly wants to amend her
complaint to add a claim for breach of
contract against Doug. Can she amend
without leave of the court?
COSTS OF AMENDMENT
• FRCP is silent on this BUT it is well accepted
that a court can require the amending party to
pay the other party’s costs arising from the
amendment.
AMENDMENT AT TRIAL
• Sometimes a party, at trial, introduces evidence
that relates to causes of action that are not
pleaded. What should the other party do, if this
occurs?
• What federal rule governs amendment in this
situation?
WHAT IS THE RELATIONSHIP OF
RULES 15(a) and 15(b)?
• 15(b) is more appropriate if suit has reached trial
or post-trial stage
• BUT motions to amend can be made at any time
under 15(a)
• In practice, courts are willing to grant
amendments under either provision UNLESS
there is PREJUDICE, DELAY, BAD FAITH, or
FUTILITY.
AMENDMENTS AND THE STATUTE OF
LIMITATIONS: RELATION BACK
• What’s a statute of limitations? What’s the purpose
of this?
• How do you figure out what the statute of
limitations is for a state cause of action? How about
a federal one?
• RELATION BACK --ISSUE: When will an amended
pleading be treated as having been filed at the same
time, for the purposes of the statute of limitations,
as the original pleading?
When will an amended claim “relate
back”?
• What is the applicable provision of the FRCP?
FRCP 15(c)
• An amended claim will “relate back” to the original
pleading where:
• 1. The claim or defense in amended pleading arose
out of the same “CONDUCT, TRANSACTION, OR
OCCURRENCE” as set out in the original pleading
15(c ) (2)
• 2. The APPLICABLE LAW ON THE STATUTE OF
LIMITATIONS allows relation back. 15(c ) (1)
• 3. If you are amending to add NEW PARTIES or
CHANGING NAME OF PARTY, (1) above applies
AND it is not unfair to relate back because the
special conditions in 15 (c ) (3) apply.
• DON’T FORGET THAT GENERAL RULES FOR
FRCP 15(c ) (3): Amendment Changing Parties in
Complaint Will Relate Back If:
• Within the 120 day service deadline period under
4(m), the party to be added:
• 1. Has notice of the action and will not be
prejudiced in her defense; AND
• 2. Knew or should have known that the action
would have been brought against her if there
had not been a mistake;
• AND 3. 15( c) (2) applies.
IMPORTANT PREREQUISITE FOR
RELATION BACK
• Before there can be relation back, the party
seeking amendment must convince court that
amended pleading is permitted under FRCP
15(a) or (b).
CASE LAW ON RELATION BACK Worthington v. Wilson
• State or federal court?
• What’s the procedural history?
• What is the procedural issue that this court must
decide?
• How does the court rule on this issue?
• What is the court’s reasoning?
CASE LAW ON RELATION BACK:
Christopher v. Duffy
• What court are we in?
• What is the substantive legal dispute in this
case?
• What is the procedural issue that the court must
decide?
• How does the court rule on this issue?
• What is the court’s reasoning?
• What is the court’s holding?
A Comparison of federal and state law on
relation back - MA
• In Christopher v. Duffy, the applicable
procedural rule was Mass. R. Civ. P. 15.
• How does this differ, if at all, from FRCP 15 (c )?
• What difference would it have made to
Christopher v. Duffy if FRCP 15 ( c) applied?
• Which is a better rule, in your opinion? Why or
why not?
HYPO ON RELATION BACK
• Jim, a pedestrian, brings a claim in negligence
against Barry, the driver of a car that struck him.
Jim moves to amend to add a claim that Barry
negligently failed to stop and render appropriate
aid at the scene of the accident. If granted, will
this amendment relate back under Rule 15 (c )?
Why or why not?
ANOTHER HYPO
• Erik is angry about a statement made by Prof. Fischer
in a class hypothetical on 9/27/00. He commences a
libel action on 9/12/00 naming “Marianne” Fischer as D
in his complaint. Erik serves the complaint by personal
service on Prof. Fischer at the law school on 9/15/00.
Assume the statute of limitations is 1 year. Erik learns
that Professor Fischer’s first name is not “Marianne” but
“Susanna”. On 9/18/00 Erik moves to amend his his
complaint to change the defendant’s name to
“Susanna”. Will the amendment relate back?
SUPPLEMENTAL PLEADINGS
• When and why would a court permit service of a
“supplemental” pleading?
• What rule governs supplemental pleadings?
• MUST a party serve a supplemental pleading?
TIME LIMITS FOR RESPONDING TO
AMENDED PLEADINGS
• How long does a party have to respond to an
amended pleading?
• What is the governing FRCP?
PRACTICE EXERCISE NO. 9
CB 259
• (a) What effect will the admissions in
paragraphs 4 and 5 of Randall Dee’s
answer have on the trial?
PRACTICE EXERCISE 9
• (b) Assuming that the defendant has
reasonable knowledge, is the answer to
paragraph six in compliance with the
applicable Massachusetts rules?
PRACTICE EXERCISE 9
• C. What does the denial to the allegations in
paragraph eleven put in issue? Assuming that
further stages of the case (such as discovery,
summary judgment, pretrial conference) do not
bring closure to the issue and that it remains as
defined by the pleadings, how will the judge
instruct the jury on the question of conscious
suffering, including instructions on the burden of
proof?
PRACTICE EXERCISE NO. 9
• (d) Examine each of Randall Dee’s
defenses, and explain what type of
defense it is. Is it a defense at all or a
mislabeled “denial”?
PRACTICE EXERCISE NO 9
• (f) If you were a legislator or judge faced
with the question, would you make the
second defense an affirmative defense?
Why or why not?