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Civil Procedure I Outline: Fall 2000
Abbreviations: ULLD – Unless local law differs UCSO – Unless court says otherwise UPSO – Unless parties say otherwise UFLSO – Unless federal law says otherwise
DC – District Court CoA – Court of Appeals SC – Supreme Court
The Federal Rules of Civil Procedure – These rules govern all civil suits in the U.S. District Courts. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action. 1
I. Service of Process
A. Commencement of the Action 3 – Commenced by filing a
complaint with the court (suit beings when complaint is
filed).
B. Nuts and Bolts of Summons 4(a),(b),(c),(e)
1. What is served – Summons and complaint served together
within a 120 days of filing the complaint.
a. Summons – Must be signed by clerk, bear seal of the
court, identify court and parties, be directed to the
defendant, state name and address of plaintiff’s
attorney (unless unrepresented). Must state the time in
which the defendant must appear and defend itself. Must
state that failure to appear will result in judgement
against the defendant. 4(a)
b. Complaint – Copy of complaint that initiated suit.
2. Who serves the summons and complaint – Someone 18+ and
not a party. In limited situations, may request court-
appointed person. 4(c)2
3. How it is served – Must choose either a or b, if right
to service is not waved. If suing multiple parties, must
serve each separately. UFLSO.
a. Can be served in accordance of state rules of either
the state where the district court is located or where
service is effected
b. Federal rules – May be used unless prohibited by
law. Reliable but costly. 4(e)2
(1) Service is made in person OR
(2) Left at the defendant’s home with someone of
suitable age and discretion residing there (this is
very vague, open to dispute) OR
(3) Left at the person’s home OR
(4) Left with an authorized agent
c. If service is not waived, proof of service is required
for court. This requires an affidavit by person who
made service (if it isn’t a US or deputy US marshal)
Failure to make proof of service does not affect
validity of service 4(l)
4. When it is served – Within 120 days of filing the
complaint. If this doesn’t happen, the court (upon motion
or on its own) will dismiss the action without prejudice
so that service can be effected within an allotted time.
If P had good cause for failure, the court will extend
service time 4(m)
C. Waiver of Service 4(d)
If P notifies D about commencement of action, P can request
that D waive service of summons. D cannot voluntarily waive
service, P must make request.
1. What Happens:
a. Notice of action and request to waive service is
made in writing and addressed to D 4(d)(2)(a)
b. It is sent through first-class mail or equivalent
4(d)(2)(b)
c. D gets 2 copies of notice and complaint, pre-paid
method of response. Notice must specify court in which
it was filed. 4(d)(2)(c),(g)
d. Must describe consequences of compliance and non-
compliance of request 4(d)(2)(d) and specify date
on which request was sent 4(d)(2)(e)
e. D has 30 days from the date request was sent to
return the waiver (60 days outside US) 4(d)(3)
f. Once waiver is sent, action proceeds as if summons
and complaint had been served 4(d)(4)
2. Advantages
a. Keeps costs down. D has to pay for his service
unless D has good cause for not waiving. 4(d)(2)(g)
This includes attorney’s fees and costs of any motions
required to collect cost of service 4(d)(5)
b. Easier, since waiver is sent by mail, not in person.
c. If D waives, D gets 60 days (from date that waiver
request was sent) to respond, not 20. 4(d)(3)
à 90 days for waiving if outside US
d. D can still object to venue or jurisdiction
3. Misc. Service
a. Infants and Insane – Made in accordance with law of
state where the service of summons is made. 4(g)
b. Corporations 4(h) (see rule for foreign companies)
(1) UFLSO, if waiver has not been obtained, service
shall be effected as it is done for individuals
in 4(e)(1)
(2) OR by delivering a copy of summons and complaint to
an officer, etc. of company (see rule)
c. United States and its Agents 4(i)
d. Foreign, State, and Local Governments 4(j)
D. Service and Filing of Pleadings and Other Papers 5
1. All orders that state so, pleadings subsequent to original
complaint and papers relating to discovery must be served
upon a party, unless court or federal rules say otherwise
2. All written motions (except ex parte), written notice,
appearance, offer of judgement, etc shall be served upon
all the parties
3. If rules requires or permits service to be made upon a
party represented by a lawyer, service shall be made to
lawyer, USCO
à Service to party/lawyer made by delivering copy to
attorney or party or by mailing it to the party/lawyer
at their last known address, or if no address is known,
leaving it with clerk of court 5(b)
E. Due Process and Summons Service – You have the right to
have your side of the story told, regardless of how weak
your case is. P must give D reasonable notice of suit.
1. Cost Benefit Test – If the increase in cost of process
<(increase of process)(interests at stake) then new
method of service is better than old.
a. Costs involved in process – costs in money and time
à in Greene, court stated that mail is inexpensive
and “goes a long way” in protecting D’s const. right
to have opportunity to be heard.
à delay results in cost to landlord (finding a paying
tenet) and tenets (property possession)
b. Increase in reliability of process
à in Greene, posting was deemed less reliable b/c
sheriffs knew that children removed the writs
c. Interests at stake – the higher the stakes, the more
service required
à in Greene, eviction is high stakes
II. Common Law vs. Chancery/Equity at Law
A. Common Law Pleading (p. 385)
1. Divided Judicial Power
à person had to prove that his case was w/in proper
jurisdiction of Royal Court. Only for cases where local
justice failed or something important requiring King’s
attention
à Criminal issues, armed violence, torts, breach contracts
à Since royal justice was speedier and more evenhanded
than local justice, people would warp their claim to
fit within the mold.
à P had to fit grievance into one of these categories:
trespass, debt, covenant, trover and replevin, and
assumpit (p.388)
à Strategy was involved. For ex., if using “debt”, D
could have oath helpers (his friends) recite an oath
stating D didn’t owe the debt.
à Juries, P,D could not testify under oath, limited
parties, no subpoena, live witnesses testified in court
2. Framing the Issue for Decision
a. Judges settled disputes about the law, juries or “fact
finders” settled those about facts
b. Entire case must be based on either law or fact
c. Dilatory pleas – pleas that did not attack merit of
case, responses that delayed the suit
(1) challenge jurisdiction of the court “not here”
(2) pleas in suspension challenged P’s right to bring
the action until some problem was resolved “not
now”
(3) pleas in abatement challenged a defect in the
pleading “not like this”
d. Peremptory pleas – deal with merits of claim.
(1) demurrer – So what? Rests on law
(2) traverse – Not true. Denies facts
(3) confession and avoidance – “yes, but”. Adds facts B. Chancery/System in Equity – Had jurisdiction in cases
that had no remedy in King’s Court.
à Sometimes administered special remedies for claims, such as
specific performance (p.393)
à Remedies for fraud, Specific performance
à Administration of trusts
à Used no jury, had written depositions, no live testimony
from witnesses, power to subpoena, multiple parties,
parties had to testify under oath.
C. Pros and Cons
1. Common Law
a. Pros – Quick resolution of disputes
b. Cons – less complete representation of issue artificial
categorization, no remedy for dispute over both fact
and law, time-consuming pleadings, primitive methods
for gathering pre-trial information, limited to 2
parties.
2. Chancery
a. Pros – more complete findings
b. Cons – cases took forever
D. Merging Law and Equity
1. Common Ground Between Code and Rules Pleading
a. Both merge procedural systems of law and equity
b. Both designed to get away from complexities of
common law and equitable proceedings
c. Elements of substantive law must be addressed in
both to avoid dismissal
d. 3 defects to worry about – see FRCP pleading
2. Differences – Code requires allegation of facts only,
Rules allow pleading of conclusions
à ex. Gilespie v. Goodyear
3. Code pleading – Procedural rules enacted as statutes
a. Less technical and rigid then former system of law
b. Still used in some states
c. You plead only the facts
d. Facts must cover each of the elements of the law under
which relief is sought
e. Must lay out issues so Judge and D know what facts
are and what issues are being alleged
III. FRCP Pleading and Motions
A. Permissible Pleadings and Form of Motions and Papers 7
1. Pleadings: There must be a complaint (which starts the
action), an answer, a reply to any counterclaims
(denominated as such), an answer to any cross-claims
contained in the answer as well as 3rd party related
pleadings. 7(a)
2. Motions and other Papers 7(b)(1)
a. Must be made in writing (unless made during a hearing
or trial)
b. Must state with particularity the grounds therefore
c. Must set forth relief or order sought
d. Motion may be stated in a written notice of the hearing
of the motion.
e. Must be signed in accordance with rule 11. 7(b)(3)
B. The Complaint
1. Claims For Relief 8(a)
a. Elements of a Claim: Pleading which sets forth a claim
for relief, (as well as counter-claims, cross-claims)
must contain:
(1) A short and plain statement showing grounds upon
which the court’s jurisdiction depends.
(2) A short and plain statement of the claim showing
pleader is entitled to relief.
(3) Demand for judgement of relief.
à Pleading must be signed by at least one attorney, or
if party is unrepresented, by the party. Paper
should also include signer’s address and phone
number. 11(a)
à Each avertment of the pleading must be simple,
concise, and direct. 8(e)(1)
b. Pleading does not need to address merits of case, just
needs to show that there are enough facts to go
forwards, must satisfy a cause of action.
c. Claims can have 3 types of defects
(1) Failure to allege facts or conclusion regarding
some element
(2) Failure to allege facts (conclusions only sometimes
okay, ex. negligence)
à ex. Gilespie v. Goodyear – not courts
responsibility to separate facts from
conclusions
à ex. Rannels v. Nichols – blue jeans case, sues
for malicious prosecution. However,
3rd circuit claims FRCP, not code rules
prevails, thus conclusions are okay
(3) Legal insufficiency – unlike (a) and (b), this
can’t be fixed, fatal to case. Grounds for 12(b)(6)
à ex. Haddle v.Garrison – Haddle is terminated
after testifying, sues his company on 1985(2),
court originally rules against him on defect 3,
stating at-will employees have no legal
recourse for being fired
d. P must specially plead matters laid in 9 including:
(1) Denial of any party’s legal capacity to sue
(2) Fraud or mistake allegations must include the
circumstances giving rise to it.
2. Consistency of Pleading – Inconsistent ideas may be
pleaded alternatively or hypothetically 8(e)(2)
a. Meant to be done in good faith b/c P doesn’t have all
info and doesn’t know what to allege
b. P must have one story by trial.
c. P must have good reason why she doesn’t know which is
true.
3. Barebones Complaint v. Complete Complaint
a. Pros of barebones
à Don’t want to reveal too much, too soon to opposition
à You are liable for things you plead, don’t want to
plead something that might be false
à If you’re not sure of merits and need facts
à Hide a bad case
b. Pros of complete
à Impress judge with your compelling case
à Scare opponent
à For the media
à D must reply line by line
à Certain info has to be divulged automatically based
on pleading
C. Pre-Answer Motions – Used so D can raise the following
objections early on.
à All pre-trial motions must follow 7(b) guidelines.
1. Rule 12(b): May be raised in either on motion or in
answer, judgement is based solely on the pleadings.
à All 12(b) defenses must be heard and determined prior
to trial, UCSO. 12(d)
a. Lack of subject matter jurisdiction 12(b)(1)
(1) May be raised at any time, even for the first time
on appeal 12(h)(1)
(2) Immediately fatal to P’s case if upheld by court
b. Lack of jurisdiction over the person 12(b)(2)
(1) Must be filed at time of motion or in answer, which
ever occurs first 12(h)(1)
(2) Immediately fatal to P’s case if upheld by court
c. Improper venue 12(b)(3)
(1) Must be filed a time motion or in answer, which
ever occurs first
(2) Immediately fatal to P’s case if judge rules in D’s
favor on it
d. Insufficiency of process 12(b)(4)
(1) Challenges adequacy of the summons itself under
4(a), may be lacking a signature or court seal…
(2) Must be filed at time of motion or in answer, which
ever occurs first 12(h)(1)
à Generally a curable defect
e. Insufficiency of service of process 12(b)(5)
(1) Attacks manner in which complaint was served, for
ex. left with a person who is too young
(2) Must be filed at time of motion or in answer, which
ever occurs first 12(h)(1)
à Generally a curable defect, court may order proper
service of complaint before proceeding