Civ Pro-Autumn 2002

Civ Pro-Autumn 2002

Outline

I. An Introduction to Procedure

A. How a case proceeds from grievance through trial and appeal.

B. Civil Procedure relies upon two bases:

1. Codified law (Federal Rules of Civil Procedure)

2. Case law interpreting the FRCP

C.All procedural rules must comport with Due Process requirements.

1.Greene v. Lindsey: Posting is insufficient notice.

2. Factors in determining “reasonableness” of procedures:

a. Stakes

b. Costs

c. Reliability

D.Rule 4: Summons

4(a): Form.

Summons shall:

Be signed by the clerk;

Bear the seal of the court;
Identify the court and the parties;
Be directed to D;
State the name and address of P’s attorney or of unrepresented P;
State the time within which D must appear; and
Notify D of consequences of failure to appear.

4(b): Issuance.

If the summons presented by P is in proper form, clerk shall (after its

filing with the court) sign, seal, and issue it to P for service on D.

4(c): Service with Complaint: by Whom Made.

(1): A summons shall be served together with a copy of the complaint. P is responsible for this.
(2): Service may be effected by any nonparty who is 18 years old. At P’s request service may be effected by a U.S. marshal, deputy U.S. marshal, or other court-appointed person.

4(d): Waiver of Service; Duty to Save Costs of Service; Request to Waive.

(1) D who waives service doesn’t automatically waive objections.
(2) D has a duty to avoid unnecessary service costs. Notice and request shall:
(A) be written and addressed to D or an officer of D.
(B) be sent by first-class mail or “other reliable means”
(C) be accompanied by copy of complaint and identify court
(D) inform D of consequences of failure to comply
(E) give the date of the request
(F) give D a reasonable time to return the waiver:
at least 30 days from date of request, or
at least 60 days from date of request if D is outside U.S.
(G) include extra copy of notice and request and SASE

If D doesn’t waive and doesn’t show good cause, D pays costs.

(3) D who waives service doesn’t have to answer complaint until:
60 days after date of request, or
90 days after date of request if D is outside U.S.
(4) Waiver is treated as proof of service.
(5) Costs imposed on D who fails to waive shall include:
costs of effecting service, and
costs of any motion necessary to recover service costs.

4(e): Service Upon Individuals Within a Judicial District of the U.S.

(1) Service shall occur pursuant to the laws of the state:
in which the District Court is located; or
in which service is effected.

(2) Process shall be served by:
delivering a copy of summons and complaint to D personally;
leaving copies of summons and complaint at D’s home with someone “of suitable age and discretion residing therein”; or
delivering copies to an authorized agent of D.

4(f): Service Upon Individuals in a Foreign Country.

Service may be effected:

(1) by any internationally agreed means.
(2) if there is no internationally agreed means:
(A) in the manner prescribed by the law of the foreign country;
(B) as directed by the foreign authority;
(C) unless prohibited by the law of the foreign country:
(i) personal service; or
(ii) by any form of mail requiring a signed receipt.

(3) or by other means not prohibited by international agreement.

4(g): Service Upon Infants and Incompetent Persons.

Service shall comport with law of state in which service is made.
If outside U.S., service under 4(f)(2)(A) or (B) or court order.

4(l): Proof of Service.

Person effecting service (unless waived) shall make proof to the court:

through affidavit, if not a U.S. marshal or deputy U.S. marshal;
pursuant to treaty or convention if served thereunder outside U.S.;
if outside U.S. and not under treaty or convention, by receipt.

Failure to prove service doesn’t invalidate service. Proof may be amended.

4(m): Time Limit for Service.

Service must be made within 120 days after filing of complaint.
Later service results in dismissal without prejudice (P may refile).

P may avoid dismissal by showing good cause for delayed service.

II. Pleading

A.Common Law vs. Chancery

1.Common Law

a.Narrowed claims during pleading; P and D had to agree on basis of conflict.

b. Types of disputes:

i.Demurrer: “So what?”—12(b)(6)

ii. Traverse: “Not true.”

iii.Plea of Confession and Avoidance: “Yes, but..”

c.No separate discovery.

2.Chancery: parties weren’t required to detail facts up front.

3. Why do we care about these historical differences?

a.To see how procedural evolution affected substantive law.

b.To see why and how the two systems were combined.

B.Development of Modern Pleading

1.Code Pleading

a.Codes enacted by state legislatures

b.Gillispie(vague trespassing): two purposes of specificity

i.Court can assess validity of claim;

ii.D has a chance to respond.

c. This stage weeds out poor claims

d. New rule: “short and plain” statement of claim.

e.Differences between FRCP and Code Pleading:

i.FRCP pleading requires only a statement of claim.

ii. Level of specificity required by FRCP:

a.Rannels($8 jeans): factual elements to fulfill each substantive requirement.

b.Haddle(Feds after company): regardless of facts, claim inadequate under law.

C.Rule 8: General Rules of Pleading

8(a): Claims for Relief. A claim shall contain:

(1) a short and plain statement of grounds for jurisdiction.
(2) a short and plain statement of the claim for relief.
Heightened pleading standard may be required under, e.g., Civil Rights Act in cases of fraud and mistake. (Leatherman: cops smelled pot—abuse “under color of law”)
Courts haven’t spelled out how Leatherman heightened pleading squares with Gomez assignment of burden of proof to D in qualified immunity cases.

8(b): Defenses: Form of Denials. A party shall:

state defenses to each claim in short and plain terms.
admit or deny the averment upon which opponent relies.
state any lack of knowledge or belief as to the truth of an averment (this has the effect of a denial).
deny only the part of the averment actually contested (specify how much is true).
Zielinski (forklift): failure to specify true averments can result in the court’s ordering false averments to be treated as true.
15(c)(3) would have allowed amendment of pleading.
make a general denial when contesting all parts of an averment.

8(c): Affirmative Defenses. In pleading to a preceding pleading.

Gomez (cop testified against others): good faith is an AD in qualified immunity cases (civil rights).
Layman (phone lines): AD excluded because not stated in answer. Case remanded; new trial could include AD.

8(d): Effect of Failure to Deny. Averments are admitted when not denied.

8(e): Pleading to be Concise and Direct; Consistency.

(1) Each averment shall be simple, concise, and direct.
(2) A party may set forth all possible claims in the alternative.

8(f): Construction of Pleadings. “All pleadings shall be so construed as to do substantial justice.”

D.Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions: Applies to all written documents except those turned over in discovery.

11(a): Signature. Every filing shall be signed by at least one attorney or by an unrepresented party and list the signer’s address and phone number.

11(b): Representations to Court. Submission of a document to the court implies that the signing party knows or believes that:

(1) the filing has no improper purpose (harassment, delay, cost).
(2) the legal contentions therein are warranted by existing law or by a serious argument for the modification of existing law.
Religious Technology Ctr. (RICO)—not warranted by law.
Limits sanctions to attorneys (signers) only.
(3) the contentions have or are likely to have evidentiary support.
Business Guides (“seeds” case): lawyers sanctioned.
(4) denials of fact are warranted by evidence or are reasonably based on a lack of information or belief.

11(c): Sanctions. If subdivision (b) is violated, the court may sanction the parties, attorneys, or law firms responsible. Court is not required to impose monetary or even any sanctions.

(1)How Initiated.
(A)By Motion. This motion shall be separate from other motions and shall describe the specific conduct alleged to have violated 11(b). The motion can be amended or withdrawn until 21 days after service (or within whatever time the court prescribes) and can only be filed thereafter. If motion succeeds, court may award expenses including fees. A law firm shall be held jointly responsible with its employees.
(B)On Court’s Initiative. Court may move on its own.

(2)Nature of Sanction: Limitations. Sanction shall be limited to what will deter repetition. May be nonmonetary or paid to the court or to movant.
(A) Monetary sanctions can’t be awarded under 11(b)(2).
(B) Monetary sanctions can’t be awarded on the court’s initiative unless the court issues order to show cause before voluntary dismissal or settlement.
(3)Order. When imposing sanctions, the court shall describe the conduct deemed a violation and explain the basis for the sanction.

11(d): Inapplicability to Discovery. Rule 11 does not apply to disclosures and discovery requests, responses, objections, and motions.

E.Rule 12: Defenses and Objections

12(a): When Presented.

(1) D shall serve an answer:
(A) Within 20 days after service of complaint; or
(B) If service waived:
within 60 days after waiver request; or
within 90 days after waiver request if D outside U.S.
(2) Party served with a cross-claim shall serve an answer within 20 days after service of the cross-claim.
(3) Cases to which the United States is a party:
(A) If U.S. is the party served with the cross-claim, it shall answer within 20 days after U.S. Attorney is served.
(B) An officer or employee of U.S. shall answer within 60 days after he or U.S. attorney was served, whichever is later.
(4) Service of a Rule 12 motion alters time periods as follows:
(A) If motion denied or postponed, answer must be filed within 10 days after court’s ruling on the motion.
(B) If motion (for more definite statement) granted, answer must be filed within 10 days after service of more definite statement.

12(b): How Presented. The following defenses may be made by motion rather than in a responsive pleading:

(1) Lack of subject matter jurisdiction;
(2) Lack of personal jurisdiction;
(3) Improper venue;
(4) Insufficiency of process;
(5) Insufficiency of service of process;
(6) Failure to state a claim upon which relief can be granted; or
(7) Failure to join a party under Rule 19.

A motion under this rule must be made before pleading. If no pleading is required, these defenses may be brought forth at trial.

12(c): Motion for Judgment on the Pleadings. After the pleadings are closed, any party can so move. If matters outside the pleadings are presented and not excluded, the motion is for summary judgment.

12(d): Preliminary Hearings. 12(b) and 12(c) motions shall be heard and decided before trial except where court orders otherwise.

12(e): Motion for More Definite Statement. May be made before responsive pleading is filed. Motion must point out defects and details desired. If opponent fails to serve a more definite statement within 10 days of the granting of this motion, the pleading may be stricken.

12(f): Motion to Strike. Must be made before responsive pleading or, if none is required, within 20 days after service. May move to strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

12(g): Consolidation of Defenses in Motion.Except as otherwise provided in 12(h), all available defenses under Rule 12 must be consolidated into one motion or lost.

12(h): Waiver or Preservation of Certain Defenses.

(1) Lack of personal jurisdiction, improper venue, and insufficiency of process or of service of process are waived:
(A) if omitted from a 12(g) motion; or
(B) if it is not included in a Rule 12 motion nor in a responsive pleading or an amendment to a responsive pleading.
(2) Failure to state a claim on which relief can be granted, failure to join an indispensable party, and an objection of failure to state a legal defense to a claim may be made at any time.
(3) Lack of subject matter jurisdiction may be raised at any time, by the parties or the court, and if proven results in dismissal.

F.Rule 15: Amended and Supplemental Pleadings.

15(a): Amendments.

A party may amend once before responsive pleading is served.
If no responsive pleading permitted and trial hasn’t been scheduled, party may amend within 20 days after service.
Otherwise, party may amend by leave of court or written consent of opponent; leave shall be given when justice so requires.
A party shall respond to an amended pleading within response time to original pleading or 10 days, whichever is longer, or as court orders.

15(b): Amendments to Conform to the Evidence.

Amendments may be necessary to conform pleadings to evidence or to issues raised and consented to implicitly or explicitly.
These amendments may be made by motion of any party at any time, even after judgment.
Failure to amend doesn’t affect result of trial of these issues.
If evidence objected to because not in pleadings, pleadings may be amended to include such evidence (court shall do so freely in absence of evidence of unjust intent [undue prejudice, bad faith, dilatory motives, undue delay, futility]—Layman).

15(c): Relation Back of Amendments. An amendment dates back to the date of the original pleading when:

(1) dating back is permitted by law of SOL, or
(2) amended pleading arises out of same events as original (Moore: surgery consent [no]; Bonerb: basketball [yes]), or
(3) amendment changes the opposing party if 15(c)(2) is satisfied and
(A) the new party has sufficient notice of the action, and
(B) the new party knew or should have known that it was the correct party.
Aquaslide: Amendment permitted because Plaintiff didn’t meet its burden of proof that leave to amend would unduly prejudice Plaintiff’s case. Amendment dated back to date of original pleading under 15(c)(2) because it arose out of same circumstances and events as original.
Relation back is OK if it fits underlying purpose of SOL (notice).
Although Plaintiff argued that Defendant’s amendment was the “death knell” for Plaintiff’s claim, 15(c)(3)(B) provides for Plaintiff to amend to include a new Defendant even after the statute of limitations has run if that new Defendant knew or should have known it was the right Defendant.
If the U.S. is a defendant, mailing or delivery of process to U.S. Attorney or designee or Attorney General is sufficient.

15(d): Supplemental Pleadings.

Upon motion of a party the court may permit the party to serve a supplemental pleading detailing events since original pleading was filed.
Permission may be given even if original pleading was defective in statement of a claim for relief or defense.
Court may order response to supplemental pleading and shall set time therefor.

III. Discovery

A.Rule 26: General Provisions Governing Discovery; Duty of Disclosure

26(a): Required Disclosures; Methods to Discover Additional Matter

(1)Initial Disclosures. Parties must, without request, disclose:
(A) The name and, if known, address and phone # of each person likely to have discoverable information.
(B) Copies or descriptions and locations of all documents and objects in the control of the party and likely to be useful to opponents.
(C) Computation of all damages claimed and documents from which those computations are made.
(D) Insurance agreements indicating insurers’ liability.
(E) The following proceedings are exempt from 26(a)(1):
(i) Action for review of administrative record.
(ii) Petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence.
(iii) Action brought without counsel by a prisoner.
(iv) Action to enforce or quash a summons or subpoena.
(v) An action by U.S. to recover benefit payments.
(vi) An action by U.S. to collect on a guaranteed student loan.
(vii) A proceeding ancillary to proceedings in other courts.
(viii) An action to enforce an arbitration award.
Disclosures under 26(a)(1) must be made within 14 days after the 26(f) conference or within a time set by the court.
If a party objects to initial disclosures in its 26(f) discovery plan, court must rule.
Any party served or joined after conference must disclose within 30 days after being served or joined or within time set by court.
Initial disclosures must accord with information then available.
(2)Disclosure of Expert Testimony.
(A) Parties must disclose experts who may appear at trial.
(B) Disclosure must be accompanied by copy of expert’s report.
(C) Disclosures made at time and in sequence set by court. Default is 90 days before trial. If rebuttal evidence, 30 days after disclosure of evidence to be rebutted.
(3)Pretrial Disclosures. A party must provide and file with the court at least 30 days before trial (or at a time set by the court):
(A) Name and phone # of each witness.
(B) Designation and description of depositions to be introduced.
(C) Identification of documents and other exhibits to be used.

Parties then have 14 days to object to exhibits and depositions.

(4)Form of Disclosures. All must be written, signed, and served.
(5)Methods to Discover Additional Matter. Available methods:
Depositions (Rules 30, 31, 32)
Usually available to the public.
Deponents’ identities can be screened by court.
Court can restrict publication.
Centrality issue: does P have other options for evidence?
Importance: how significant is the overall case?
Written interrogatories (Rule 33)
Document and object production (parties only) (Rule 34)
Permission to enter upon land for inspection, etc.(Rule 34)
Mental and physical examinations (Rule 25)
Requests for Admission (Rule 36) (more like pleading)
Admissions aren’t and don’t need to be evidence.
Can be withdrawn in rare, exceptional circumstances.
Court can limit these requests.

26(b): Discovery Scope and Limits.

(1)In General.
Any matter not privileged and relevant to any party’s claim or defense is discoverable.
Information need not be admissible if likely to lead to ev that is.
General standard: relevance without privilege.
(2)Limitations. Court may limit by order. Limits shall be ordered if:
(i) Discovery sought is unreasonably cumulative or duplicative or obtainable otherwise more easily, inexpensively, etc.
(ii) Party seeking discovery has had ample opportunity already.
(iii) Burden or expense outweighs likely benefit.

Court may act upon its own initiative in limiting discovery.

(3)Trial Preparation: Materials. Work product discoverable only:
Upon showing of substantial need, and
Upon showing that other means involve undue hardship.
Mental impressions, conclusions, etc., not discoverable (Hickman: boat crash—inspired 26(b)(3)).
A nonparty may always obtain copies of her own statements. If court order is necessary to obtain these, expenses may be awarded.
Factual information is discoverable from attorneys—not protected by work product exception.
Thompson(see below): falls under (b)(3) because it involves documents.
Decision tree for documents:
Is it otherwise discoverable (relevant and not privileged)?

If no, not discoverable.

If yes, proceed to #2.

Was it prepared in anticipation of litigation?

If yes, not discoverable.