Civ Pro 1; Buss; Fall 09

Civ Pro 1; Buss; fall 09

Service of Process

RULE 4

You can use state or Federal rules

·  ****Can Plaintiff mix and match the who and how must it be 18+?????

·  Prof. Buss says that she kind of likes the literal meaning and that the notion of the structure is a bit over exaggerated.

·  This means that she believes you either use the state of federal and that you don’t have to use the 18+ part if you use the state, which makes things easier

·  Some others say that they intended it they said you should use both together

Green v. Lindsey:

·  when landlords wanted to evict tenants the state law said that they could give notice to tenants by leaving notice on the door, as long as you tried to give it to them or another adult at home

·  The tenants ultimately challenged the lack of due process by the posting of the notice on the door.

·  The trial court looks at an old law but it was still precedent and they used it.

·  They took it up on the court of appeals, and the court ruled that times have changed and this is a violation of due process,

·  Things to consider

·  Reasonably calculated, under all circumstances, to inform party and give chance to defend themselves

·  Cost: of service to the court

·  Reliability: Kids may rip notice off of door

·  Stakes: Depriving people of home are high stake

Pleading

Old English system of Law (History)

Common Law v. Equity

1.  Jurisdiction; pleading; proof-pretrial; decision maker; relief; These are the categories we will use to analyze each system

1.  System at law

a.  Jurisdiction: Designed to be efficient and cheap

i.  Not every case qualified; Had to establish right to be heard by king

b.  Pleading: What’s required of the documents & what other functions does this stage play

i.  Pleading: it was highly formalized and gauged at overall efficiency; it relies the claim to fit one of these forms.

ii.  Demurer (legal action not justified); traverse (denials of facts); confession and avoidance (vacating).

1.  CONS: It doesn’t always service the greater purpose of justice; the world can’t fit into these few writ categories.

c.  Proof:

i.  Pretrial: No Discovery process, live testimony, or compelling witness

1.  No help for system at law

ii.  During Trial: No help again, no subpoena, you can’t even testify

d.  Decision Makers: Here we have question of facts = Jury; of law = Judge

e.  Relief: What is owed to you; Always exclusively money damages

2.  System at equity

a.  Jurisdiction: Very limited, complex suits with multiple parties.

b.  Pleading: all details allowed, no limit on pleading

c.  Proof

i.  Pretrial: You could develop your evidence as in-depth as you needed it

ii.  During Trial: there are subpoenas and you or anyone can testify

d.  Decision Makers: There are no juries, Judges only

e.  Relief: No money; injunctions or specific performance

Pleading RULE 8 & 11

Code v. Federal Rule 8

1.  Requirements of code pleadings

a.  Don’t spend you time talking about the law in the complaint; that’s the judges job. You need to show the facts that constitute some type of relief under the law.

i.  Elements of a complaint being sufficient, this is what you have to show

1.  Show duty

2.  , a violation of that duty: intentional harmful touching

3.  , that caused some type of consequence to the P: Injury or offense

4.  and this caused some type of damages to the P

Ex: Gillispie v. Goodyear

b.  The court says that the problem is that there were no substantive facts put forward to justify her claims; she just presented the claims.

c.  The reason why you need to have facts stated is because people have different perspectives

d.  And secondly, the defense needs to know what action he is responding to so he can deny admission of certain claims

e.  You also need to have admission of fact so that the court knows exactly what Is going off. And so now with the facts as supported by the codes, now the court or jury can agree or disagree with the conclusions that are drawn by the P.

f.  Gillispie didn’t mention names, locations, etc. Court ruled that she could go back and rewrite her claim.

RULE 8

Requierments; 1) An allegation of jurisdiction, 2) short and plain statement of the claim showing that the pleader is entitled to relief, 3) demand for judgment for the relief sought

Short and plain statement of the claim showing that plaintiff is entitled to relief. Can contain conclusions of law as well as facts. However, the aims are still the same, you have to show every element of the law and show that you are entitled to relief. Under the new 1938 amendment of 8a2 requiring just a plain statement showing you are entitled to relief, Gillispie’s claim would still be insufficient because the claim still does not tell the court what is going on. We cannot tell if she is entitled to relief or not. (Rule 8a2)

Ex. Bell Atlantic v Twombly: Case where anti-competitive behavior was claimed by plaintiff. But the court held that parallel behavior alone is not enough to demonstrate anti-competitive behavior or agreement among parties, showing conspiracy. Court ruled on an 8a2 motion, stating that complaint does not show that the case could possibly be won on the grounds stated by plaintiff, no relief. Possibility of agreement is not enough it has to be plausible, raised above speculative level. There has to be some sort of reasonable expectation that discovery will reveal evidence. This case makes it so that plaintiff has to be able to plausibly prove her claim, not just have a claim

Connely v. Gibson was the quintessential case of what is enough in an complain

·  Requires minimal screening up front and then get to proof afterwards through discovery.

·  Only if it appears beyond doubt that the P can’t prove there is a legal claim.

Twombley breaks down the threshold between

·  Possible/plausible/ probable; plausible means a decent chance, possible means that it’s not impossible, and probable means more often than not.

·  Speculative is the same as possible and it must be above speculative.

·  The standard is plausible which was established in this case

·  The idea of getting past this step is so that you can get to discovery and once you get to the discovery process then its much more easy to prove the case because now you can read e-mail and letters and see what and where vacations were spent and with whom.

Haddle v. Garrison

·  This one is kind of long for a complaint

·  42 USC sections 1985

o  2 or more persons conspire

o  To deter attending court or testifying

o  By force, etc or injuring person or property

Is the issue in Haddle the same as that of Twombley?

·  The answer is NO, the question here is what is the

o  The difference is

§  One way is there is not enough here, or at least yet; this is twombley

§  In haddle; we don’t need more information, its all here but there is no claim because there is no action to be brought because of right to work state.

·  The defense argues that because he was an employee at will and he didn’t have a contract there was no property right

·  The court says that the claim under Section 1985 was dismissed, and the state law claims were dismissed without prejudice meaning that they can be brought back up.

·  The attorneys thought it would worth pushing forward and appealing up the ladder because there were other circuit where the case was ruled in other ways

· 

·  The Supreme Court rules: That the jist of this claim is that they used this method of firing him in order to intimidate him.

·  Here is a law that affords protection

·  There is one other reason that the court though of it as a tort claim

o  They say the way the term is used makes it seem as though its tort law. He talks about the third-party

o  There is a more straightforward way to explain the connection with the third party

·  Gillispie: Conclusionary thus demurrable

·  Twombly: question of what’s saying enough to conclude something, how much do you have to say to make it plausible

·  Haddle: Enough said, but no legal claim

RULE 11 (signing) [reviewed on abuse of discretion 11b2 or clearly erroneous for facts] (not immediately appealable unless the chosen sanction is to dismiss the whole case)

Applies to all written filings, not just pleading. But not discovery or oral representations.

Must contain

-signature

-certification that claim or motion is

1.not done for improper purpose

2.warrented under law

3.facts are supported

4.answers & denials are supported

-if these are found to be violated, sanctions will be imposed.

Court can impose sanctions but it does not have to. Sanctions are meant to deter future actions in violation of this rule.

Safe Harbor: Must give the opposing party 21 days before filing so that they can voluntarily drop their claim.

Types:

-monetary: Attorney fees, penalty to the court

-non monetary: flagging of attorney, sending to take more classes, requiring apology

Ex. Christian v Mattell: Case where plaintiff alleges that Mattell doll was infringed from a doll she created, however the Mattell Barbie dolls had an earlier copyright date on the actual product, than the plaintiff’s product did. However, the plaintiff’s attorney refused to drop the claim and Mattell issued a rule 11 motion, saying that this was a frivolous claim.

However, court also takes into account personal actions done by the attorney that are not sactionable under rule 11. This cannot be done by court.

An 11b2 and 12b6 must be filed separately!

A 12b6 motion stops the clock on an action while the court rules on this motion, however a 11b2 motion has sanctions attached to it and it is more personal.

RULE 12 [APPEALED DE NOVO]

Rule 12b6 is summary judgment, this is for Defendant only

Rule 12c is at the close of the pleadings, it is a motion for judgment on the pleadings (JOTP), brought by either P or D; CANNOT include anything outside or beyond the pleadings, if it does then it is required to be a SUMMARY JUDGMENT. Is a final order and dismiss the case.

·  You have a complaint the Defendant can move straight to the answer; 20, 60, or 90 days are the different timelines for the defense to answer the question

·  Answer to pre trial motions are due 10 days after notice

·  Or they can file a pre-answer motion

o  It can buy time, possibly months and months.

o  The pre-answer motion can include all the things listed (pg 92 FRCP)

·  12g says that you can only file 1 pre-trial motion; if there is more than one that you want to assert then you have to join all of them

·  1) Subject matter Jurisdiction, 6) failure to make a claim, 7) failure to join a party; these can be brought up at any time and there are a few more. Rules 1,6,7 are not waived, and the others are waived if you don’t file them in your first document to the court.

·  You have to include the 4 that are waived in the first document you submit to the court (2,3,4,5) (personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process) These must go with the first document that you submit to the court

·  12e: motion for a more definite statement, it is not much used and it is disfavored, but if defendant believes that claim statement is so confusing that he cannot respond, he may use this motion.

·  12f: motion to strike: this is asking court for authority to go after a piece of the pleading and challenge language that is inappropriate and unnecessary.

·  Ex. Haddle v Garrison: Case where plaintiff claims discrimination behind her liquidation from her at will employment. Mainly she believes she was let go because she was to testify against the former president of the company. The district and appellate court granted the defendants 12b6 motion because an at will employment does not constitute a legislatively protected property which can be harmed. Therefore, plaintiff did not have a claim for which relief could be granted. The Supreme Court however, reversed on fact that this went against 42 U.S.C. 1985 protecting witnesses cooperating with federal agents.

Answer

·  Must include any affirmative defenses at this point, counterclaims, or cross-claims. If not you run the risk of loosing it.

·  You regularly have 20 days to respond to a claim, if waiver is sent you get 60 days. If you file a pre-answer motion you do not have to answer until 10 days after you get ruling on motion.

·  You can file inconsistent claims or defense in your answer. Just because you have to place some or loose them, you have the time to filter them out later during discovery.

·  The basic task is to sort through and see what you admit and deny

o  Specificity dictates how detailed your answer must be; if they are specific then you have to be. You can admit, deny, or plead your without knowledge (general denial/ specific denial)

·  Responsive pleadings;