Peterson Fall 2011

Civil Procedure

Peterson – Fall 2011

Rule 1: FRCP should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding

Pleadings

Introduction
Pleadings: Documents filed by litigants setting forth claims and defenses
Functions: Putting the other party on notice of the claims and defenses (the burden of factual discovery is places on the discovery process) and on what grounds they rest
History of Pleadings
Common Law: Very formalistic writ system/forms of action
Code Pleading: Statement of facts constituting the cause of action
FRCP: No fact requirement
Complaint
Elements, Rule 8(a)
Short and plain statement of the grounds for the court’s jurisdiction
Short and plain statement of the claim showing that the pleader is entitled to relief
Demand for the relief sought, which may include relief in the alternative or different types of relief
Form, Rule 10
Caption stating the name of the court, title of the case, identity of the document, and file (case) number
Body has claims or defenses in numbered paragraphs
Parties are allowed to reference allegations found elsewhere in the document
Parties are allowed to attach to their pleading a copy of a significant written instrument (like a contract)
Legal Sufficiency
On the face of the complaint, if every fact alleged by the plaintiff was taken as true, does the law provide a remedy for P (does P state a claim upon which relief may be granted)?
D can challenge whether P has stated a claim under Rule 12(b)(6)
D can make this challenge at other points in proceedings as well under Rule 12(h)(2)
Factual Sufficiency
If the pleading is legally sufficient, has P pleaded her claim in sufficient detail to proceed in the litigation?
Code System:
P must plead the “ultimate facts” constituting a cause of action
Evidentiary facts are too specific
Legal conclusions are too general
FRCP:
Rule 8(a)(2): A short and plain statement of the claim showing that the pleader is entitled to relief
Test: Can D respond to the complaint?

Dioguardi v. Durning

Facts: P’s home drawn complaint was dismissed under 12(b)(6)

Holding: The factual allegations of a complaint are sufficient if they show each element of the claim.

Conley v. Gibson

Holding: Pleadings are sufficient unless P can prove no set of facts in support of his claim which would entitle him to relief

Note: Approved but not taken literally

Bell Atlantic Corporation v. Twombly

Facts: P sued phone companies for violating the Sherman Antitrust Act, pleading that the companies engaged in conscious parallelism (that the Ds were aware of each other’s actions and engaged in such actions themselves) and that the Ds behavior was the result of an agreement, but did not state when or where such agreement allegedly took place.

Holding: P cannot merely name an element of the cause of action but must provide a factual allegation supporting it.

Ashcroft v. Iqbal

Facts: P alleges that Ds violated his constitutional rights by adopting policies that led to his detainment on account of his race, religion, or national origin. His complaint was dismissed.

Holding: In cases where the complaint is exceptionally vague (Note: here, this was in a case relating to terrorism after 9/11, so there was a strong tendency to think Ds’ actions legal), there is a plausibility standard

Pleading With Particularity
Rule 9(b): In alleging fraud or mistake, a person must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and any other conditions of a person’s mind may e alleged generally.
Rule 9(g): If an item of special damage is claimed, it must be specifically stated
Special damages differ by court
Majority – hospital and medical bills and lost profits for a business are special damages

Leatherman v. Tarrant County

Facts: P sued Tarrant County; municipal liability was for allegedly failing to adequately train its police officers. Complaint was originally dismissed because it did not meet the heightened pleading standard of the 5th Circuit for suing a municipality.

Holding: Pleading with particularity is only required in cases of fraud and mistake. It does not apply to cases of municipal liability.

Note: Still good law. Not overruled by Iqbal.

Denny v. Carey

Facts: P sued D for issuing false and fraudulent statements. D moved to dismiss under 12(b)(6) for not meeting standards of 9(b).

Holding: 9(b) is not a rigorous standard. The ultimate test is, can the defendant adequately answer the complaint?

Note: P won in Denny v. Carey. In essentially the exact same case, P lost in Denny v. Barber because the complaint did not meet 9(b), and that case is more often cited. Shows the importance of storytelling.

Pleading Inconsistent Facts and Alternative Theories
Rule 8(d)(2): A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.
Rule 8(d)(3): A party may state as many separate claims or defenses as it has, regardless of consistency.

McCormick v. Kopmann

Facts: Wife sued on behalf of her dead husband. She claimed that either (1) D1 negligently drove his truck and killed the husband, who was not driving negligently, or (2) D2 over-served the husband alcohol and that his intoxication caused him to drive so as to get into a collision.

Rule: Inconsistent claims are mutually exclusive and P cannot recover on both, but she can make both.

Dismissal of Complaint
Voluntary Dismissal, Rule 41(a): A plaintiff may dismiss an action (without prejudice, unless P has previously dismissed an action based on or including the same claim) without court order by filing
A notice of dismissal before the other party files an answer or makes a motion for summary judgment in response to the complaint, OR
A stipulation of dismissal signed by all parties who have appeared
Involuntary Dismissal, Rule 41(b): A defendant may move for dismissal, with prejudice
Not dismissed with prejudice if it is dismissed for lack of jurisdiction, improper venue, or failure to join a party under Rule 9
Link v. Wabash R. Co.: Court may dismiss a case on its own motion under 41(b)
General: Defendant’s ways to get the case dismissed
Dismiss complaint (Rule 41)
Dismiss for failure to state a claim (Rule 12(b)6))
Summary Judgment (Rule 56)
Directed verdict (judgment as a matter of law)
Judgment Not Withstanding the Verdict
Responses to Complaint
Answer

Rule 12(a): Responsive pleadings must be served within 21 days after the original pleading is served (some exceptions)

Admit or deny allegations found in the complaint
Denials
General denial: deny every allegation
Specific denial: respond to each paragraph/allegation individually
Qualified general denial: admits everything except X
Argumentative denial: pleading contrary facts (bad)
Negative pregnant: denial that is too specific/literal (bad)
Conjunctive denial: deny an allegation that only some of which is false (bad)

Zelinski v. PPI

Facts: PPI denied an allegation that said “A motor vehicle . . . owned, operated, and controlled by the defendant, its agents, servants, and employees, was so negligently and carelessly managed . . .” The person operating the fork lift was no longer employed by PPI but rather by CCI, and the fork lift was owned by PPI but leased by CCI.

Holding: Ineffective denial and court ordered that the jury be told that the fork lift was owned by PPI and the driver was a servant in PPI’s employ.

Affirmative Defenses (introduce new legal claim or practical matter)
Rule 8(c)(1): Includes things like duress, re judicata, statute of frauds, statute of limitations, etc.
Must raise affirmative defenses in your answer or they are waived

Defenses by Motion, Rule 12(b)
Defenses raised by motion

Motion asserting any of these defenses must be made before pleading is a responsive pleading is allowed.

Lack of subject matter jurisdiction
Lack of personal jurisdiction
Improper venue
Insufficient process
Insufficient service of process
Failure to state a claim upon which relief may be granted
Failure to join a party under Rule 19

Joining Motions, Rule 12(g): Any Rule 12 motion may be joined with any other Rule 12 motions
Waiving Motions
12(b)(2)-(5) [lack of PJ, improper venue, insufficient process and service of process] defenses are waived if
They could have already been asserted in a motion OR
The party fails to make a Rule 12 motion OR fails to include it in a responsive pleading or amendment allowed as a matter of course
Failure to state a claim and failure to join a person required by Rule 19 may be raised: in any pleading, in a motion for summary judgment, or at trial
If lack of subject matter jurisdiction is discovered at any time, the court must dismiss the case

Claims Made by the Defendant
Defendant can assert claims against other parties and sometimes join additional parties
Counterclaim: Claim against an opposing party
Crossclaim: Claim against a co-party
Plaintiff must file an answer to a counterclaim so designated
Failure to Respond
Rule 12(a): Responsive pleadings must be served within 21 days after the original pleading is served (some exceptions)
Default, Rule 55(a): When a party against whom a judgment for affirmative relief is sought has failed to plead or defend, a clerk must enter the party’s default

 Just a notation in the court’s docket; can be set aside for good reason

Default Judgment, Rule 55(b): If the plaintiff’s claim is for a liquidated amount, the clerk must enter judgment for that amount and costs against a defendant who has been defaulted. If the claim is for an unliquidated amount, the party must apply to the court for a default judgment (holds hearings on damages and enters judgment)

 Can also be set aside for good reason but much harder

Amendments
Whether you can amend before trial, Rule 15(a)
As a matter of course, Rule 15(a)(1): A party may amend its complaint once as a matter of course within 21 days after serving it, or if a responsive pleading is required, 21 days after service of the responsive pleading or 21 days after service of a motion under Rule 12
Other amendments, Rule 15(a)(2): In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
When does “justice so require”?

Balance the moving party’s need to amend, considering any unwarranted delay, with prejudice that will result for the non-moving party, considering any ways to mitigate it.

Time to respond, Rule 15(a)(3): Any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

Effect of variance at trial, Rule 15(b)
Relevant for issue presented at trial that was not raised in the pleadings
Objection at trial, Rule 15(b)(1): If a party objects to an issue raised at trial that was not in the pleadings, the court may permit the pleadings to be amended when doing so will aid in presenting the merits and there is not prejudice to the objecting party. Court may grant a continuance to enable the objecting party to meet the evidence.
No objection at trial (consent), Rule 15(b)(2): When an issue not raised by pleadings is tried by the parties’ express or implied consent, it must be treated as if raised in the pleadings. A party may move at any time to amend the pleadings to include the issue but failure to amend does not affect the result of the trial of that issue.
Whether an amendment can relate back, Rule 15(c)

An amendment relates back to the date of the original pleading when

Rule 15(c)(1)(A): The law on the statute of limitations allows relation back
Rule 15(c)(1)(B): The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleading
Rule 15(c)(1)(C): The amendment changes the party against whom a claim is asserted, if 15(c)(1)(B) is satisfied and if within 120 days from when the original complaint was filed [Rule 4(m)],
The party to be brought in by amendment received notice of the action AND
Knew or should have known that the action would properly have been brought against it

Marsh v. Coleman Company

Facts: P filed suit against employer for his termination being in breach of contract but later sought to amend the complaint to add a claim for fraud (based on statements made before he was fired that P had job security). The statute of limitations for the fraud claim had run out at this point but had not run out at the time of the original complaint.

Holding: The fraud claim does not relate back because did not arise out of the same conduct, transaction, or occurrence as the breach of contract claim because the only factual overlap is the date that his employment ended and the defendant had no reason to anticipate from reading the original complaint that it should prepare a case based on the acts alleged for fraud.

Note: This was a very formalistic opinion. It could easily be argued the other way.

Integrity & Sanctions in Pleadings
Rule 11(a) & (b): Every pleading and other paper submitted to the court must be signed by the attorney or pro se party. Signed papers certify that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation
The claims and defenses are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law

[Sanctions for 11(b)(2) are only for counsel! You pay, not your client.]

The factual contentions have evidentiary support
The denials of factual contentions are warranted on the evidence

Sanctions, Rule 11(c)
If 11(b) is violated the court may impose sanctions
The opposing party may move for sanctions (separate from any other motion), but the offending party has 21 days to withdraw or correct the contested writing
Sanctions are limited to what will deter repetition
Model Rules of Professional Conduct

Rector v. Approved Federal Savings Bank

Facts: P sued for “at least 60 billion dollars” in compensatory damages and 20 billion in punitive damages. Complaint was dismissed. P amended complaint but asked for “an infinite amount of money.” P did not raise the defense that he was not given 21 days to correct his pleading either when he opposed dismissal or on his first appeal, but he raised this on his second appeal.

Holding: The 21-day “safe harbor” provision is mandatory but as a defense is waivable if not raised in opposition to the dismissal.

Notice & Service of Process

Constitutionally Minimum Requirements (Mullane)
Due Process: Requires that notice be
Reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to be heard
Of such a nature to reasonably convey the required information
Afford a reasonable time for those interested to make an appearance
Balancing Test:
Burden on the state
Interest of the individual

Mullane v. Central Hanover Bank & Trust Co.

Facts: A bank issued notice of proceedings related to a particular trust in a regional NY newspaper. The beneficiaries included residents and non-residents of NY. Some of the beneficiaries’ addresses were known and some were unknown.

Holding: Notice was sufficient for the beneficiaries whose addresses were unknown. Notice violated due process for the beneficiaries whose addresses were known.

Statutory Requirements

Service of process must comply with constitutional and statutory requirements

Summons must be served with a copy of the complaint [Rule 4(1)] by any person over the age of 18 who is not a party to the litigation [4(2)] within 120 days of when the complaint is filed [4(m)]
Waiving Service, Rule 4(d)
P may request, by first class mail or other reliable means, that D waive service
D has 30 days to return the waiver
If D fails to waive without good cause, the court must impose the expenses later incurred in making service and the reasonable expenses of any motion required to collect those service expenses on D
If D waives service, D has 60 days to answer the complaint (instead of 21)
Serving an Individual, Rule 4(e)
Follow the state law for service in the forum state, OR
Delivering service to the individual personally, OR
Leaving a copy at the individual’s dwelling or usual place of abode with someone of suitable age (usually >16) and discretion who resides there, OR
Delivering service to an agent authorized by appointment or law to receive service of process

National Dev. Co. v. Triad Holding Corp

Facts: Super-rich D is a citizen of Saudi Arabia, and lives there a few months over the year, which owns several homes. He was served with process at his apartment in NY while living there at the time.

Holding: One may have more than one “dwelling or usual place of abode” where service would be proper if there is (1) sufficient indicia of permanence and (2) D is currently living there.

Note: Court refuses to take a stand on how this case would have come out if D wasn’t living in the apartment at the time.

Serving a Corporation/Partnership, Rule 4(h)
Follow the state law for service in the forum state, OR
Deliver service to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process

Personal Jurisdiction

The court’s power to render a binding judgment over a particular individual

What connects the concept of due process to personal jurisdiction requirements?

Social contract theory – if you incur benefits from a state, you owe some obligation to submit to the state’s legal system in return (substantive due process issue)

 Full Faith and Credit Clause: If the original court did not have personal jurisdiction over its decision, other jurisdictions are not bound by it

Jurisdictional Statute
State jurisdictional statute, as interpreted by the state supreme court
States tend to interpret these broadly so that they can have personal jurisdiction over all disputes that affect state interest and the interest of the state’s citizens
Federal long-arm statute: Rule 4(k)(1)(A) makes the forum state’s jurisdictional statute applicable to federal cases
Due Process
Traditional bases
Domicile
Individual
Permanent residence
Intent to stay
Corporation
State of incorporation
Consent
Express: The right to object to a court’s lack of personal jurisdiction is a personal right that can be waived, in advance of litigation or by your conduct in the litigation (submitting a complaint, failing to raise a Rule 12(b)(2) objection in time)
Implied

Hess v. Pawloski