Historic Functions of Pleading Rules

PLEADING

History of Pleading Rules
Historic functions of pleading rules
providing notice of the nature of claim/defense
now addressed by initial pleading as specified in Rule 8(a)
identifying baseless claims / assess sufficiency of claim
now addressed by motions & sanctions under Rules 11, 12, & 56
setting each party’s view of the facts
now addressed by discovery
narrowing the issues
not really an issue anymore (modern pleading rules – amendment, etc.)
Common Law, Form of Action (medieval times – 1848)
each type of complaint had a specific form
had to include specific legal rule and specific allegations
if you made a mistake on even a minor detail, the whole thing was thrown out
Code Pleading, Field Code of 1848 (1848 – 1938)
Forms of Action were replaced with Cause of Action
This liberalization of pleading reflected the growing complexity of society and the law
However, you still had to plead “ultimate facts”
Because of the confusion between “ultimate facts,” “conclusions of law,” and “evidentiary facts” things were streamlined even further by the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure (1938 – )
Prior to these rules, federal cases used state procedural law
Under 8(a), your pleading just has to outline a “claim for which relief may be granted”
short and plain statement of the claim showing that Pl is entitled to relied
as long as D is able to answer, it is sufficient (form 9)
ambiguities construed in light most favorable to Pl
increases emphasis on discovery process
Rule 11 weeds out baseless claims
every paper signed by lawyer
signature certifies:
suit isn’t to harass, delay, add cost
contentions are warranted by law
there is reasonable evidence for support
12(b)(6), a demurrer, is D’s motion to dismiss based on failure to state a claim for which relief may be granted

Integrity and Sanctions in Pleading

History

Rule 11 took effect with original Federal Rules in 1938
It was enforced based on subjective bad faith
Through the years, more complex litigation made frivolous claims more burdensome
Rule 11 was made very strict and comprehensive in 1983
Signature requirements added
Subjective standard changed to reasonable inquiry
Courts required to impose sanctions
This resulted in satellite litigation about sanctions
Both sides would file Rule 11 motions on each other’s Rule 11 motions, and you’d have mini trials to adjudicate these strictly procedural claims
Revision of Rule 11 in 1993
SafeHarbor Provision 11(c)(1)(a)
You’ve got 21 day from the service of a Rule 11 motion against you to fix or withdraw your offending conduct before the motion is filed with the court
Court is no longer required to impose sanctions
Both lawyer and his firm are subject to Rule 11 sanctions
The obligation this rule applies to pleadings extends into the trial phase
If you discover one of your claims isn’t legit, you must withdraw it, even mid-trial
Rule 11 does not apply to discovery – different set of rules for discovery
Remedies
Disciplinary action against the lawyer (bar sanctions) is rare
The court’s striking of the pleading is a little less rare
The imposition of attorney fees, either on the client, lawyer, or firm is most common

11(a) Everything will be signed by and contain attorney’s address, etc. or it will be stricken

11(b) By signing, he represents to the court that, to the best of his belief (Hadges):

He may rely on his client for info on good faith and there’s no obligation to inform the court of proceedings elsewhere between the parties.

(1)No improper purpose, such as delay, harassment, increase costs.

(2)Claims are based on existing law or non-frivolous arguments for that law’s extension/modification

(3)The allegations and factual contentions have, or are likely to have (after reasonable discovery), evidentiary support.

(4)Denials of fact are based on evidentiary support or on reasonable based on a lack of information.

11(c) If (b) is violated the court may impose sanctions on attorneys, law firms, or parties that violated or are responsible for violation.

(1)(A)Motion for Sanctions This motion is made separately from all others and should describe the specific conduct offensive to (b). It is served normally to Pl but isn’t filed with the court until 21 days later (safe-harbor provision) (Hadges). Court generally awards prevailing party attorney fees and expenses for litigating the motion and generally fines the firm as well.

(1)(B)Court’s Initiative (sui sponte) Court may enter order detailing offensive conduct that directs party to show cause why it hasn’t violated (b).

(2)Nature of Sanctions

Sanctions limited to what is sufficient to deter future/similar violations.
Sanctions can include non-monetary directives, court fines, or if motioned for, part or all reasonably attorney fees and expenses resulting from the violation.

(A)Monetary sanctions may not be imposed on party (just counsel) for violation of (b)(2) (for frivolous arguments).

(B)Monetary sanctions may not be granted on court’s initiative unless the order to show just cause is issued before a voluntary dismissal or settlement against the offending party.

(3)Order The court must describe the offending conduct and the basis of the sanctions (Hadges).

11(d) Nothing in 11 applies to violations during discovery. (see Zielinski)

23.1 Derivative Suits The complaint shall be verified by Pl and allege Pl was a shareholder at the time of damage, he’s not in it just to affect jurisdiction, and he made good-faith effort to rectify situation from within corporation prior to bringing suit.

In Surowitz, the court interpreted 23.1 in light of its underlying meaning/purpose (as opposed to a literal reading) by refusing to bar a suit because Pl didn’t understand its intricacies and because it wasn’t a strike suit. Pl was acting in good faith on her lawyer’s advice. If the lawyer had recruited her, the court would’ve been stricter with 23.1.

Complaint

8(a) A claim shall contain the following three factors

(1)Short and plain statement of the grounds for jurisdiction

(2)A short and plain statement of claim showing that pleader is entitled to relief (Dioguardi, Garcia)

(3)Demand for judgment

8(e) (1) Each assertion/averment should be simple, concise, and direct (no technical form required); (2) multiple claims/defenses need not be consistent.

9 Pleading Special Matters

(b)Fraud must be stated with particularity (Denny x2)

(g)Special Damages shall be specifically stated, general damages need not be specified (Ziervogel)

If a few things are enumerated, it’s assumed that there is nothing else, but if damages are alleged in a non-detailed way (i.e. “physical injuries”) the door is more open for all sorts of damages (see Ephrem)
The purpose of this rule is to prevent surprise to D. In Ziervogel (where there was no real surprise to D), a court would generally rule the other way.

10(b) Separate Statements

All elements of claim or defense shall be made in numbered paragraphs, each limited to a statement of a single set of circumstances (no conjunctive claims, see Zielinski).

54(c) Demand for Judgment

If a default judgment, Pl will not be awarded more than was prayed for in ad damnum clause.
If not a default judgment, every judgment shall grant the relief to which the party is entitled, as determined by jury/judge, regardless of ad damnum clause.
Court in Bail noted that if the difference between the amount prayed for and the amount granted is so great that it would have changed D’s legal strategy, it may not be allowed (this is pretty unlikely).

Response to Complaint

8(b) Denials

Three forms of response to assertions/averments in claim: affirm, deny, ‘without knowledge or information sufficient to form a belief as to the truth’ (must be truthful).
If denying part of an assertion, this must be specified.
Ineffective denials:

Negative Pregnant: “I don’t owe $5” may be an admission of owing $4
Conjunctive Denial: Denying everything with one blanket denial, as in Zielinski.

8(c) Affirmative Defenses

assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, payment of debt, statute of limitations, “and any other matter constituting an avoidance or affirmative defense.” (Ingraham)
This is meant to protect Pl from surprises.
Three factors to determine whether something is an affirmative defense:

Legal: Is it a necessary element of Pl’s cause of action? Does it speak directly to the legal heart of the issue?
Practical: Which party has better access to pertinent evidence?
Policy: Should this matter, in general, be indulged or favored?
If the court does not think medical malpractice claims should be limited by statute, as in Ingraham, they will deem the statute an affirmative defense. (But, there was no real surprise in Ingraham.)

8(d) Failure to Deny

If D does not deny assertions/averments in a pleading which require a response, these are taken as admitted. (Assertions that do not require a response, if not responded to, are taken as denied or avoided.)

12(a) Time Limits

D has 20 days in which to respond with answer/motion after receiving summons, 60 if service is waived [4(d)], 90 if D is outside US, or 60 if the US or an officer of the US in that capacity. If motion is denied or postponed till trial, D has 10 days. If motion for more definite statement is granted, D has 10 days to respond after service w/the amended complaint.

12(b) Defensive Motions

Any defense to a claim shall be asserted in the answer except the 7 listed below, which may be presented by motion prior to the filing of the answer.

(1)Lack of subject matter jurisdiction

(2)Lack of personal jurisdiction

(3)Improper venue

(4)Insufficient process

(5)Insufficient service of process

(6)Failure to state a claim upon which relief may be granted

(7)Failure to join a party under Rule 19

12(e) Motion for a More Definite Statement

If a pleading is too vague to respond (Garcia)

12(f) Motion to Strike

If part of the pleading is redundant, immaterial, impertinent, or scandalous (Garcia)

Amendments and Supplemental Pleading

15(a) Amendments

Party may amend pleading once at any time before answer is filed, or if no answer is required, within 20 days of service (as long as the suit has not been placed on the trial calendar).

Otherwise, only by leave of court or by written consent of the other party.

Leave shall be freely granted when justice so requires, as determined by balance of 4 factors:

Bad faith?
Unwarranted delay?
Is it really necessary?
Can the prejudice to the opposing party be mitigated?
In Beeck, the first three were satisfied because it was a good faith mistake, but the court fudged the fourth (prejudice) by granting a jury trial to decide the “genuine question of fact.”

15(b) Amendment to Conform to the Evidence

When issues that were not raised in the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings (in order to reflect the litigation that actually transpired). Either party can move to amend on these grounds at any time (even after judgment). (Moore)

If, when the evidence is entered at trial, an objection is raised that the evidence was not within the issues in the pleadings, the court may allow the pleadings to be amended at that time (unless evidence can be raised to show that it is prejudicial).

15(c) Relation Back of Amendments

An amendment related back to the date of the original pleading (for purposes of avoiding statute of limitations) when:

Relation back is permitted by the statute of limitations law, or
claim/defense asserted in amended pleading arises out of the same conduct/transaction/occurrence set forth in the original pleading, or
amendment changes the party against which the claim is asserted because of a mistake on the name & #2 above is also satisfied (with fair notice to new D – within the time specified for summons in Rule 4(m) & with sufficient notice)
In Worthington, 7th Cir interpreted “mistake” in a completely literal way, barring the claim of Pl who did not find out the names of the offending officers until after the statute of limitations had run, despite the fact that they were clearly described in the complaint.

15(b) Supplemental Pleadings

Supplemental pleadings are allowed when events have occurred since the original pleading (even if original pleading failed to state a claim).

PERSONAL JURISDICTION

12(b)(2) (pretrial) motion to dismiss for lack of P/J; lack of P/J can also be asserted in answer; otherwise it is waived.

State Long-Arm Statute
Need to be interpreted by State Sup Ct
If interpreted as reaching full extent of due process, skip to II
Tortious Act
Some states have interpreted ‘tortious act’ as being the same as ‘tort’ (Gray), but many others draw a distinction (tort is where injury occurs; act is where act that causes injury occurs)
Other provisions
Due Process (14th Amendment)
Traditional Bases
Service in forum(Pennoyer)(Burnham) or
Burnham dicta, Scalia+3
general jurisdiction
don’t need minimum contacts
don’t need claim to arise from contacts
fair play and substantial justice (under Pennoyer)
intentional presence
flying over a state in a plan not sufficient
Burnhamdicta, Brennan+3
general jurisdiction (liberal view)
minimum contacts analysis (liberally construed)
3-day stay in forum state = benefit received from forum state
THE TEST: in Burnhamdicta, all 9 Sup Ct justices say that this would suffice to establish P/J:
individual who spent 3-days in forum (minimum contacts)
individual who is intentionally present in forum (fairness)
this does not apply to corporate officers served in forum
Seizure of property in forum (Pennoyer)(overruled in Shaffer) or
Domicile (Milliken) or
individual
residence &
intent to stay indefinitely
corporation
where it is incorporated
Consent
express waiver (by K)
unless fraud or over-weening bargaining power (Burger King)
forum selection clause consent/waiver of both parties (Carnival Cruise)
implied consent
statute: state laws like the one in Hess, evolved into long-arm statutes, which have done away with the language of implied consent
by lack of objection
if not objected to in answer or by 12(b)(6) motion
by court sanctions
failing to comply with discovery requests & blocking D’s reasonable attempt to meet burden of proof on P/J issue (Insurance Corp. of Ireland)

General Jurisdiction
Minimum Contacts (substantive due process) (Shoe) and
nature: continuous & systematic (Shoe)
temporary office (Perkins)
continuous flow of activity
can’t be continual activity
purchases at regular intervals over a number of years (Helicopteros)
can’t be just ownership of property in forum (Shaffer)
relation: claim does not arise from contacts (Shoe)
Fairness (procedural due process)
if contacts are continuous and systematic, fairness is satisfied
some courts still look to fairness factors – burden on D
Specific Jurisdiction
Minimum Contacts (substantive due process) and
nature: isolated & sporadic (Shoe)
purposeful availment (Hanson)
K alone (McGee) (superceded by Burger King)
K plus (Burger King)
prior negotiations
future consequences
terms of the K
actual course of dealing
stream of commerce (Gray, aff’d in dicta in VW)
Asahi dicta, O’Connor+3 (purposefully directed)
product designed for forum
advertising in forum
support services in forum
sales agents in forum
Asahi dicta, Brennan+3
awareness
regular and anticipated flow of product
aware that product is marketed in forum
passive receipt of benefit
economic benefit
benefit of state laws
Asahi dicta, Stevens
2 points from Brennan above plus:
volume
value
hazardous character
THE TEST: in Asahi dicta, 5 Sup Ct justices say that this would suffice to establish minimum contacts:
awareness
passive receipt of benefit
volume
value
hazardous character
in rem carryover (Shaffer) – claim arises out of property located in forum state
property in forum (Shaffer)

Internet Jurisdiction
No precedent for general jurisdiction (so with internet contacts, claim needs to arise form contacts)
Specific Jurisdiction
general statement on web site not likely to be sufficient
comment on web site directed at a specific resident of a specific state may suffice (similar to Calder)
more interactivity of site means more purposeful availment (Zippo)
but you will still probably need something directed at forum
directed contacts (email or phone calls to forum state) can suffice (Bellino)

relation: claim arises from contacts (Shoe)

Fairness (procedural due process) (balancing state’s interest & individual’s interest) (VW) – fair play and substantial justice
burden on D
state’s interest in adjudicating dispute
Pl’s interest in convenient & effective relief
interstate judicial system’s interest in efficient resolution
availability of witnesses, evidence, etc.
shared interest of several states in furthering social policies (impact on substantive policies)

Jurisdiction in the Federal Courts (Federal Long Arm Statute)

Constitutional Analysis:
Federal Due Process – 5th Amendment: Minimum contacts with US
Fed. R. Civ. P. 4(k):

(1)(A): same jurisdiction as state court in that state (borrows state long arm statute)

minimum contacts with state (14th Amendment due process analysis)

(1)(B) & (1)(C): rarely used (joinder & interpleader)

(1)(D): specific jurisdictional statutes for some federal claims

(2): if a federal cause of action, but no P/J in any state (due to lack of minimum contacts with any one state), federal Cts can have jurisdiction if minimum contacts with the US

Challenging a Court’s Exercise of Jurisdiction

1)don’t consent: don’t show up (default judgment)

if no P/J, default judgment, then you can raise jurisdictional defense in suit 2 (case to recover judgment from suit 1—in a different forum)
if P/J, you’re stuck with default judgment and you can only re-argue jurisdictional issue on appeal (res judicata – no collateral attack)
only do this if you’re sure there is no P/J

2)consent by action: appear specially (for P/J decision)

once Ct makes a P/J decision, you’re bound by that P/J decision (res judicata – no collateral attack)
in doing this, you are bound to any discovery/pretrial on P/J issue (Insurance Corp. of Ireland)
this is consent to jurisdiction for the issue of P/J

3)consent by inaction: Fed. R. motions/defenses

Rule 12(g): all 12(b) motions must be filed at the same time

Rule 12(h): you have to move for lack of P/J before trial in first pretrial motion or in answer (whichever comes first)

NOTICE / SERVICE OF PROCESS