Civil Procedure Buss Fall 2002
Thekla Hansen-Young
Outline
I. General Scope & Forms of Civil Action
Rule 1: Scope and Purpose of Rules
FRCP govern the procedure in the US district courts in all civil suits, whether they are cases at law, in equity, or in admiralty. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
Notes: Just, Speedy, and Inexpensive often pulls the interpretation of rules in different directions and the rules don’t define how these factors should be balanced.
Rule 2: One Form of Action
This rule consolidated cases at law and in equity.
II. Pleading
Old Procedural Systems: Law Courts & Chancery Courts
Cases at law:
- Courts had limited jurisdiction
- Common law excelled in defining the dispute between parties because parties had to lay out the characteristics of the complaint to get it into the Royal Courts. Common law had established many writs to explicitly define the legal issues – had to fit the form pleading of the writ without any second chances.
- Primitive method for gathering factual information
- Unable to handle disputes involving more than two parties
- There were 6 defenses that defendant could set forth only one of either:
o Dilatory pleas (delay or derail the case, not addressing merits)
§ jurisdiction (not here),
§ pleas in suspension (not now),
§ pleas in abatement (defect in the pleading – not like this), OR
o Peremptory pleas (addressing the merits):
§ Demurrer: agree on facts, disputes on the law – case goes to judge
§ Traverse: dispute the facts, agree on the law – case goes to fact-finder
§ Pleas in confession and avoidance: concede facts and law, but not responsible because…
- Pleading was all you got before trial – there was no discovery or way to develop evidence.
- Judges decided issues of law and juries decided facts – there were other fact finding methods too, such as ordeal, oath, helpers, etc.
- Parties could not give testimony and could not compel witnesses to testify.
- The only kind of relief available was monetary.
Cases in Chancery
- Parties were not bound by forms in their pleadings and could go into great detail – no writs, but lots of claims and counter-claims.
- Dealt with substantive claims not dealt with by writs and common law courts.
- Extensive deposition practice before trial and written depositions for discovery.
- Not clear lines between trial and pretrial processes because evidence was gathered over time.
- Compelled testimony on paper and under oath.
- Relief for monetary or injunctive damages.
- Everything was less adversarial, but took more time.
Both courts required plaintiffs to state the facts. The struggle to make pleading clear, simple, defined, and still leave room for complicated disputes drove the reformation process that produced our system.
Modern Procedural Systems: Code & Notice Pleading
Code Pleading
- Just the facts – no evidence, no legal conclusions.
- Facts are tied to the law and various elements of facts are needed to map onto law and create a right of relief. Tried to get away from technicalities of common law system.
o Typically there was a duty, it was violated, the violation affected P, P suffered damage – claim for relief.
- Case: Gillespie v. Goodyear
o The plaintiff alleged too vaguely and only in legal conclusions what happened. “complaint states no facts upon which these legal conclusions may be predicated…” and therefore the demurrer was granted but the plaintiff was given leave to amend her complaint.
- Point of pleading is not to figure out what happened, but to determine whether or not if true, there would be a claim.
- System would not want pleadings to become affidavits because usually don’t have enough evidence at the time.
- Judge’s personal opinion about whether or not the facts are true might rule into the decision on whether or not substantive law supports the claim.
- There are problems with the fact/conclusion distinction and also on the other end people may plead too much detail.
Notice Pleading
Federal Rules:
- Broad notice pleading that doesn’t distinguish between fact and legal conclusions (which aren’t always allowed). Not as technical as code pleading and just meant to provide enough information to the defendant and the court.
Rule 3: Commencement of Action
Civil Action is commenced by filing a complaint with the court.
Notes: Filing is the date on which action commences. Complaint must be filed before service. Plaintiff has 120 days to service summons after filing [4(m)]
Service of Process
Rule 4: Summons
4(a) Form: The summons must contain the signature of the clerk and the seal of the court, identify the court and the parties, be directed to the defendants, and state the name and address of plaintiff’s attorney. It must also state the time within the defendant must appear and defend and notify the defendant of that failure to do so will result in default judgment and relief demanded in the complaint.
4(b) Issuance: After filing the complaint, the plaintiff can get the clerk to sign and seal the summons if it is found to be correctly written. Multiple summons for multiple defendants.
4(c) Service with Complaint; by whom made:
1. Summons shall be served with the complaint.
2. Summons can be given by anyone who is not a party and is at least 18. At the request of the plaintiff, the court may direct service by a US marshal or other officer specially appointed by the court for that purpose. An appointment must be made when plaintiff can proceed in forma pauperis or is able to proceed as a seaman.
Note: A lawyer could not serve because he is a party.
4(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive:
1. A defendant who waives service of a summons does not waive any objection to the venue or to the jurisdiction of the court over the defendant.
2. A defendant subject to service under (e), (f), or (h) and that receives notice of an action has a duty to avoid unnecessary costs of serving the summons. The notice and request for waiver shall:
- Be written and addressed to the defendant.
- Be dispatched through first class mail or other reliable means.
- Be accompanied by a copy of the complaint and identify the court.
- Inform the defendant, by means of a text prescribed in an official form promulgated pursuant to Rule 84 of the consequences of compliance and of a failure to comply with the request.
- Set forth the date on which the request is sent.
- Allow the defendant a reasonable time to return the waiver (at least 30 days from when it is sent or 60 days if defendant is outside of US).
- Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.
If a defendant located in the US fails to comply with a request for waiver, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
3. A defendant that, before being served, timely returns a waiver so requested is not required to serve an answer to the complaint until 60 days after the date on which the requst for waiver was sent (or 90 days if outside the US).
4. When the plaintiff files a waiver with the court, the action shall proceed, as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.
5. The costs to be imposed on a defendant under paragraph (2) for failure to comply with a requet shall include the costs subsequently incurred in effecting service under (e), (f), or (H) togther with the costs and reasonable attroney’s fee of any motion required to collect the costs of service.
Note: Why is there a duty to waive? Courts, while committed to adversary systems, still want some level of cooperation to lower costs, etc. Waivers are good because it confirms the D gets notice, encourages parties to talk, and there is an incentive to waive.
4(e) Service Upon individuals within a judicial district of the U.S.: Service upon an individual from whom a waiver has not been obtained and filed, other than an infant, may be effected in any judicial district of the US:
1. Pursuant to the law of the state in which the court is located, or which in service is effected, or
2. by delivering a copy of the summons and complaint to the individual personally, by leaving copies at the person’s home with another person of suitable age and discretion living there, or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
4(l) Proof of Service: Person shall prove service through affidavit. Failure to make proof of service does not affect the validity of the service.
4(m) Timelimit for Service: Service of summons and complaint must be made within 120 days of filing the complaint, or the court shall dismiss the action without prejudice.
4(n) Seizure of Property; Service of Summons Not Feasible.
Notes on Service of Process/Due Process & Notice:
Process rule heavily inclined towards imposing higher costs of service for greater reliability.
The 14th amendment due process clause governs the minimum standards for notice.
Greene v. Lindsay (Posting eviction notices on doors of public housing tenants done according to KY law. Plaintiff contends they never received notice of eviction.).
- Cites language from Mullane for standard: “fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
Issues:
- Reasonableness of alternative forms of notification is assessed in three ways:
1. Reliability of Notice
- Will it actually notify the defendant?
- Is it adequate for the situation?
2. Cost:
- Actual Cost of Accomplishing Service
- Cost of delay of proceedings with more exhaustive type of notice.
3. Interests at stake: (parking ticket vs. losing apartment vs. losing child)
- Interests of current and future people who receive service.
- What kind of legal proceeding is it? Does this type of proceeding require a higher standard?
- Dissent said that posting has precedent and followed KY law, is adequate and speedy, mailing is no better.
- There is no disagreement over the standard used, only over what is reasonable.
- Appeal standard would be for clear error if the question was whether actual notice was given versus de novo review if the notice given was adequate.
Form & Content of Claim:
Rule 8(a) – Claims for Relief:
- A pleading which sets forth a claim for relief whether an original claim, counterclaim, cross-claim, or third-party claim shall contain:
o A short and plain statement of the grounds on which the court’s juridiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it;
o A short and plain statement of the lcaim showing that the pleader is entitled to relief;
o A demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
Notes:
1. Functional test: will court and adversary know what the claim is about?
2. Technical test: Are all the elements satisfied?
Rule 8(e) – Pleading to be concise and direct; consistency:
- Each averment of a pleading shall be simple, concise, and direct. No technical forms are required.
- A party may set forth two or more statements of a claim or defense alternately or hypothetically. When one of the two or more statements are rendered insufficient, ti doesn’t not render the entire pleading or defense to be insufficient. A party can also state inconsistent claims or defenses, based on legal, equitable, or maritime grounds. All statements are subject to obligations in Rule 11.
Rule 8(f) – Construct of Pleadings/Adequacy:
- All pleadings shall be so construed as to do substantial justice. As long as pleading provide adverse party with proper notice of claim or defense, courts will not be hypertechnical.
Notes: Why allow this inconsistency? There has been no discovery yet, so you might not be able to decide on one theory yet. You will usually want to pick one version by trial.
Rule 9(b) – Special Pleading Requirements:
- Fraud & mistake pleaded with particularity: malice, intent, knowledge, and other conditions of the mind are pleaded generally.
Notes on Rule 8 – standards of complaint.
Rannels v. S.E. Nichols, Inc (minimum standards under Rule 8(a) to set out the claim).
- Came up on appeal from a motion to dismiss on a 12(b)(6) failure to state a claim.