Pleading and Civil Procedure Expanded Outline

Pleading and Civil Procedure Expanded Outline

Mtn.forsummary Mtn for

12(b)(6) judgment d.v. mtn for

↑ ↑ ↑ jnov new trial

↓_∩_↓___discovery___∩____Trial_____∩_____↓______jury___↑______↑ ______

C A preserve

objection to

jury instruction

FRCP 7: Pleadings Allowed; Form of Motions
Pleadings (a)
Complaint
Sets forth factual averments
Answer
May advance a counterclaim against П
Court may order a Reply to an Answer
Usually ordered by court when an answer asserts new facts
Reply to a Counterclaim
Counterclaim from ∆ to П
Reply automatic if counterclaim asserted
Answer to a Cross-claim
Cross-claim from ∆ to ∆ or from П to П
Third-party complaint
If a person who was not an original party is summoned under Rule 14
Third-party answer
Court may order only if a Third-party complaint is served
Motions and Other Papers (b)
Motions are applications to the court for an order and must be made in writing stating particularly the grounds therefore and the relief or order sought(1)
Writing not necessary if motion made during a hearing or trial (1)
Motions as a mechanism for testing a claim
Motion to dismiss – challenge the legal basis of the claim (even if facts are true)
Motion for Summary Judgment – evidence is clear that a jury would find one way
Forms of pleading apply to motions (2)
Motions must be signed per Rule 11 (3)
Demurrers, Pleas, etc. Abolished(c)
Demurrers, pleas, and exceptions for insufficiency of pleading shall not be used

Pleadings
Purpose
Puts ∆ on notice regarding claims and relief sought
Serves as a roadmap of the trial regarding preparation and discovery
Frames the issues to the court
Public reasons/press release
California Code Pleading (continuum)
←C/L short plain statement---Operative Facts (Calif.)---Evidence---Affidavit with exhibits---Civil Law→

FRCP 8: General Rules of Pleading
Claims for Relief (a)
Claim for relief (original claim, counterclaim, cross-claim, or third-party claim) shall contain
A short and plain statement of the grounds upon which the court’s jurisdiction depends (1)
Examples - §1331, §1332, Maritime
Grounds for Venue often stated though nit required
Unless the court already has jx and claims needs no new grounds to support it (1)
A short and plain statement of the claim showing that the pleader is entitled to relief (2)
Examples – compensatory or punitive damages, injunction, declatory relief
Court accepts that П may not have much information pre-discovery – Dioguardi v. Durning
There is no requirement of stating facts sufficient to constitute a cause of action only that there be a short plain statement
Importance of a person’s day in court (merits decided later at trial stage)
Purpose of complaint is to put ∆ on notice – Conley v. Gibson
Additional information does not violate the Rule
One can plead themselves out of court if information actually goes against their claim – American Nurses Association
Dismissal without prejudice for failure to state a claim allows party to re-file (2 bites at apple)
Can use strategically to toll statute of limitations, fix complaint and further develop the case
Also applies with Rule 12(e) request for clarification
A demand for the judgment for the relief the pleader seeks (3)
Relief in the alternative or of several different types may be demanded (3)
Inconsistent causes of action are permitted as long as each is complete in itself – Lambert v. Southern Counties Gas Co.
Defenses; Form of Denials (b)
A party shall state in short and plain terms the party’s defenses to each claim asserted and
If certain defenses not raised, they are waived
A party shall admit or deny the averments upon which the adverse party relies
If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, a party shall so state and this has the effect of a denial
Denials shall fairly meet the substance of the averments denied
When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder
May deny specifically, or paragraphs, or generally deny all averments except such designated averments or paragraphs as the pleader expressly admits
General denial or all averments (including to that of jx) must be madesubject to obligations of Rule 11
If “X” is alleged → Must deny as “Not X”
To say “Y” is not to deny “X”
Affirmative Defenses (c)
In pleading to a preceding pleading, party shall set forth any affirmative defenses (open list)
including: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver etc.
If a party mistakenly designates a defense as counterclaim or designates a counterclaim as a defense, the court shall treat the pleading as though it had been properly designated, if justice so requires
Burden of proof on ∆
Allocation of elements – Qualified immunity is a defense to be asserted by the ∆, and not relevant to the existence of the П’s claim – Gomez v. Toledo
П does not need to state that ∆ acted in bad faith because the text of the statute upon which claim based does not mention bad faith
Other elements of statute pleaded
Judicial interpretation of statute
Burden shifts to П if allegations are denied in the Answer
Burden spectrum
Burden of pleading → make allegations via facts in complaint (pleading stage)
Burden of production → provide evidence supporting allegations (during trial)
Burden of persuasion → convince the fact finder (during trial)
Effect of Failure to Deny (d)
Averments are admitted when not denied in the responsive pleading
if the averments are in a pleading to which a responsive pleading is required (other than averments of damage)
Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided
Pleading to be Concise and Direct; Consistency (e)
Each averment of a pleading shall be simple, concise, and direct(1)
No technical forms of pleading or motions are required(1)
Two or more statements of a claim/defense may be set forth alternately or hypothetically(2)
If in the alternative one of the statements independently would be sufficient, that sufficiency stands even if one or more of the alternative statements is independently insufficient (2)
Modern trend to allow inconsistent theories
At pleading stage П only knows he’s been wronged and may use discovery to make clear what really happened
Traditionally inconsistency not permitted
Integrity of the system, fishing expedition, and judicial economy concerns
A party may state as many separate claims/defenses as she has regardless of consistency or grounds (legal, equitable, maritime) (2)
All statements are subject to Rule 11 (2)
Construction of Pleadings (f)
All pleadings shall be so construed as to do substantial justice

FRCP 9: Pleading Special Matters (Heightened Pleading Standard)
Capacity (a)
Not necessary to aver capacity of a party except as required to show jx if the court
If a party desires to aver capacity, it shall be done by specific negative averment, including supporting particulars as are peculiarly in the pleader’s knowledge
Fraud, Mistake, Condition of the Mind (b)
Circumstances constituting fraud or mistake shall be stated with particularity
Conditions of the mind such as malice, intent and knowledge may be averred generally
Leatherman v. TarrantCounty – A federal court may not apply a heightened pleading standard that is more stringent than the usual requirements under FRCP 8(a)
Rules Enabling Act – FRCP not to enlarge or abridge a substantial right – thus occasionally, Rule 9(b) may not apply
Complex cases and fraud is highly subjective/stigma attached
Avoidance of: (Federal private Securities Reform Act of 1995)
Stockholder “strike suits”
Targeting deep pocket ∆s
Abuse of discovery process
Manipulation by class-action lawyers
Conditions Precedent (c)
A denial of performance or occurrence shall be made specifically and with particularity
Otherwise it is sufficient to aver generally that all conditions precedent have been performed/occurred
Official Document of Act (d)
Sufficient to aver that the document was issued or the act was done in compliance with the law
Judgment (e)
Sufficient to aver the judgment or decision (of court, tribunal or board/officer) without setting forth the matter showing jx to render it
Time and Place (f)
Considered averments of material matter
Special Damage (g)
Shall be specifically stated
Admiralty and Maritime Claims (h)

FRCP 10: Form of Pleadings
(a) Caption; Names of Parties.
Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a).
In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.
(b) Paragraphs; Separate Statements.
All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings.
Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
(c) Adoption by Reference; Exhibits.
Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion.
A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

FRCP 11: Signing of Pleadings, Motions, and other Papers; Representations to Court; Sanctions
Signature (a) required for every pleading, written motion or other pleading
No requirement for verification or accompanying affidavit
If verification, responsive pleading must also be verified and must be answered specifically (general answer if no verification)
Representations to Court (b) certify, after an inquiry reasonable under the circumstances, that the representation:
Affirmative [and continuing] duty to conduct a reasonable inquiry into the facts and the law before filing, and the applicable standard is one of reasonableness under the circumstances – Business Guides v. Chromatic Comm.
Is not in improper purpose (harass, delay, increase cost) (1)
Is warranted by law or a non-frivolous argument for change in law (2) → No monetary sanctions per 11(c)(2)(A)
Has evidentiary support/likely to have to such support upon investigation/discovery (3)
Denials of contentions are warranted on the evidence or reasonably based on a lack of information/belief (4)
Sanctions (c) may be imposed on attorneys, law firms or parties (often sanction all and let them figure it out)
Initiation (1)
By Motion (A) – describe specific conduct
SafeHarbor – Serve motion to offending party 21 days before filing to give opportunity to withdraw or correct
Serves to facilitate communication, self-regulation and reduces volume of Rule 11 claims
On Court’s Initiative (B) – describe specific conduct and show cause
Nature of Sanction; Limitations (2) – limited to was is sufficient to deter repetition including directives, pay penalty to court, or pay reasonable expenses and attorney’s fees incurred as a result of the violation
No monetary sanctions for violation of 15(b)(2) – (A)
No monetary sanctions on court’s initiative unless order to show cause issued before voluntary dismissal or settlement (B)
Order (3) must describe violating conduct and to explain basis for sanction imposed
Inapplicability to Discovery (d) – Rule 11 does not apply to motions subject to provisions of Rules 26-37
28 USC §1927: Counsel’s Liability for Excessive Costs – attorney who multiplies the proceedings in any case unreasonably and vexatiously, may be required to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct
Invokes the inherent power of the court
Applies to attorneys only (not parties as does Rule 11) and no “SafeHarbor” provision
Extreme sanction thus limited to truly egregious cases of misconduct – Ridder v. City of Springfield

FRCP12: Defenses and Objections – When and How Presented – By Pleading or Motion – Motion for Judgment on the Pleadings
When Presented (a)
∆ to serve an Answer (1)
within 20 days of service of Complaint (A) or within 60 days if service waived/ 90 days if outside US (B)
Party to serve an answer to a cross-claim or a reply to a counterclaim/reply by order of the court within 20 days (2)
Times altered (4)
If motion denied, responsive pleading within 10 days (A)
If 12(e) motion for more definite statement granted, responsive pleading to be filed within 10 days of service of the more definite statement (B)
How Presented (b) – every defense to any claim in any pleading must be asserted in the responsive pleading thereto, except the following can be made by motion:→ Rule 12(h)
Lack of subject matter jx (1)→Raised any time or by the court
Lack of personal jx (2)→Waived if not raised
Improper venue (3)→Waived if not raised
Insufficiency of process (4)→Waived if not raised
Insufficiency of service of process (5)→Waived if not raised
Failure to state a claim upon which relief can be granted (6)→Can be raised up to or during trial (not on appeal)
Can be raised in matters of
Bad theory - American Nurses’s Assoc. (use of comparative worth theory – not illegal)
Bad facts - Molaksy v. Garfinkle (must be purchaser or seller to have c/a)
Other claims dismissed b/c of
Lack of jx→ no prejudice, can be refiled
Merits → prejudice, claim is dead
Facts in complaint must be taken as true – no discretion of the court
A compliant should not be dismissed for failure to state a claim unless it appears beyond a doubt that П can prove no set of facts in support of his claim which would entitle relief – Conley v. Gibson
Can grant motion with leave to amend
Failure to join a party under Rule 19 (7) →Can be raised up to or during trial (not on appeal)
When filing Rule 12 motion, duty to answer is tolled
thus Rule 12 Motion can be filed for strategic reasons
Answer may be preferable in order to:
Take issues off the table
Public relations purposes
Motion for Judgment on the Pleadings (c)
After pleadings closed but within such time as not to delay trial
If matters outside the pleadings are presented and not excluded by the court, motion treated as Summary Judgment
Preliminary Hearings (d)
Above motions to be heard and determined before trial
Motion for More Definite Statement (e)
If pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.
Motion must point out the defects complained of and details desired
Court to use discretion in determining if too vague – Mitchell v. E-Z Way Towers, Inc.
Still must comply with Rule 8 pleading standards
Only need to plead with particularity if fraud
Motion to Strike (f)
By motion or by court, the court may order to be stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter
Consolidation of Defenses in Motion (g)
Waiver or Preservation of Certain Defenses (h)

FRCP 13: Counterclaim and Cross-claim – ways in which the ∆ may acquiesce, expand or contract the litigation boundaries set by П’s complaint.

Judicial influence via rulings on motions or making own motion (compulsive, permissive and discretionary)

Compulsory Counterclaims (a) – A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
But the pleader need not state the claim [non-compulsory] if:
at the time the action was commenced the claim was the subject of another pending action, or
the opposing party brought suit upon the claim by attachment of other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under Rule 13.
Thus if compulsory counterclaim not raised, it is waived
[Factual relationship required re: co-party cross-claims and third-party ∆ claims → 13(g)]
Broad interpretation of criteria for determining if “arises out of same transaction or occurrence” applies
Usually only need a logical relationship between claims in the interest of avoiding a multiplicity of suits – D’Agostino
Determine the actual legal significance of the factors (ie interdependency, payment, etc.)
Permissive Counterclaims (b) – A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
Rationale – judicial efficiency & supplemental jx kicks in to determine if claims can stay
If not brought now, permissive counterclaims can be brought in a future suit
Permissive claims must have independent basis for federal jx
Diversity or federal question
Cannot satisfy Supplemental jx §1367 because permissive claim does not arise out of the same case or controversy
[No factual relationship required re: claims and counterclaims between ∆ and П - Rule 18(a)]
Counterclaim Exceeding Opposing Claim (c) – A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
Thus different relief permissible
Counterclaim Against the USA (d) - These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof.
Counterclaim Maturing or Acquired After Pleading (e) - A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.
Means by which to bring a later claim – supplemental pleading
Omitted Counterclaim (f) - When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.
Means by which to bring a missed claim – amended pleading
Cross-claim Against Co-party (g) - A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action.
Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
[Claim to transfer responsibility]
If ∆ has a proper cross-claim against its co-∆ this gives the court ancillary jurisdiction even though all parties to cross-claim are citizens of the same state. The termination of the original claim would not affect this – Fairview Park Excavating Co. v. Al Monzo Construction
Distinction between dismissal on jurisdictional grounds and non-jurisdictional grounds (ie merits)
Claims only stand or fall together if they are derivative (ie subject matter jurisdiction)
Established by Rule 13 because there is no prescribed order in which claims must be heard
Joinder of Additional Parties (h) - Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.
[Factual relationship is required – “arises out of…” – Rule 20]
Separate Trials; Separate Judgments (i) - If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.
Purposes of complexity
Speeds up trial process, expedites settlement and improves the fairness of the outcome

FRCP 14: Third-Party Practice[impleader] – permissive, never compulsory
When ∆ may bring in a third party (a)
Anytime after commencement of the action, adefending party, as a third-party П, may serve summons and complaint on a person not party to the action who is or may be liable to the third-party П for all or part of П’s claim against the third-party П
[∆ saying “actually, X is responsible, not me]
A ∆ is generally authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis, even when such concurrent tortfeasor has not been named a ∆ in the original complaint – American Motorcycle Association v. Superior Court
Impleader as a mechanism to enforce a substantial right (to indemnity)
Severance is always an option to avoid prejudice to the П

b. Third-party ∆ a derivative of original ∆