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CIVIL PROCEDURE OUTLINE
I. PERSONAL JURISDICTION - power of the court over the parties
A. Types of Personal Jurisdiction (PJ)
1. In personam jurisdiction -
ct has pj due to its POWER over the D himself.
2. In rem jurisdiction - ct
has pj due to it power over the property in question.
3. Quasi in rem jurisdiction
- ct has pj by seizing property that belongs to the D but that is not the property that is
the subject of the litigation.
B. Constitutional Doctrines
1. 14th Amendment - since its
adoption all claims must be in accordance w/ this amendment of due process.
2. Full Faith and
Credit Clause (Art IV Sec 1) - only applies to cts of one state enforcing another state's
decision. Now also applies federally w/ a federal statute.
****If you have a valid and binding judgment in state A it must be give the same effect in
state B that it would have in state A.
****A judgment w/o js is VOID in every state.
C. Pennoyer v Neff (1877) p62: A state ct
cannot assert in personam jurisdiction over a D unless the d was personally served w/
process in the state or the D voluntarily appeared before the ct. A state ct may exercise
jurisdiction over a D's property, even if the property is not related to the action at
hand, if the property is located w/in the ct's jurisdiction.
1. Two principles of public
law
a.
Every state has exclusive jurisdiction over persons and property w/in that state.
b.
State may not exercise direct authority over persons or property outside the state.
2. 2 kinds of jurisdiction
created
a. In
Personam - personal service on the D w/in the state
b. In
Rem, Quasi In Rem - attachment of D's in state property when D is out of state.
(1) Property must be attached before the lawsuit, doing to afterwards
didn't suffice of establish jurisdiction.
(2) Harris v Balk - Ct upheld assertion of quasi in rem js over a debt
owed to the D by a temporary visitor to the state since the obligation of the debtor to
pay her debt clings to and accompanies her wherever she goes. Therefore debt is sufficient
presence to permit its seizure. Ct expanded in rem js to get around territorial problem.
The big problem is notice to the person whose property, debt, is being taken in the suit.
3. Service of Process
a.
You cannot serve someone in another state (except for exceptions).
b.
You can serve a citizen of another state if they are temporarily in you state unless they
are brought there by fraud. Transient jurisdiction - obtaining jurisdiction by serving D
when he was temporarily physically present in the state.
c.
You can serve process to anyone w/in the state.
4. Loopholes - ways for state
to achieve pj around strict territoriality of Pennoyer.
a.
consent - A ct may render a binding enforceable judgment ag/ a party who consents to the
js of the ct even if the ct wouldn't have had js over the individual absent his consent.
(1) Express consent
(a) A person can consent by simply making a general appearance unless
the appearance is made for the sole purpose of challenging js.
(b) Parties to a K may specify js in case of a dispute.
(c) Parties to a K may appoint an in-state agent to accept process.
(2) Implied consent - state statutes may specify that person engaging
in certain activities will imply consent to js to that state.
**He's v Polaski--driving into Penn you gave consent to secretary of state to be an agent,
thus incase of an accident suit can be brought.
b.
corporations: list of factors; implied "present" or "consented" states
using power of state to reg corps "doing business" phrase. Later cases define
more.
c.
status - absent service w/in the state the ct can determine the status of one of its
citizens toward a non-resident (divorce cases; but child custody and money matters require
more for js).
d.
"doing business" - partnerships
e.
"in rem" - a state has power to adjudicate any disputes over property w/in the
state.
f.
domicile
(1) Ct has in personam jurisdiction over an individual though the
person is not physically w/in the js if that person was domiciled w/in the ct's js.
(2) Domicile determined by:
(a) An individual's intent to stay indefinitely.
(b) Facts showing that a party physically located in a certain
location.
(3) A person may only have one domicile, even though he has more than
one residence.
5. Notice - it is assumed w/
in rem js that the person will receive notice through the seizure of her property. This
legal fiction is questionable in cases where it isn't real property but things such as a
debt, stocks, etc.
D. A defense of lack of pj is waived (rule 12h)
unless it's brought up at the first time possible. [Same for ?s of venue, insufficiency of
process, or insufficiency of service of process.]
E. COLLATERAL ATTACK - A D may attack collaterally a
judgment rendered w/o js. but if the js was valid the only recourse would be an appeal in
the state rendering judgment
F. MINIMUM CONTACTS TEST
1. International Shoe v State
of Washington: P, incorporated in Delaware, had its principal place of business in Mo. The
company's only tie to the forum state was its employment of salesmen who resided and
solicited business in Washington.
a.
Focus not on presence of person as basis for pj but the contacts of the person w/ the
state.
b.
Test: "In order to subject a D to a judgment in personam...he must have certain
minimum contacts w/ the forum such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice."
(1)Look at the quality and nature of the contact
(2) Is it systematic and continuous or sporadic and isolated?
(3) Do they benefit from protection of state laws?
(4) Does cause of action relate to contacts w/ the forum?
(5) Did the D purposely avail (benefit of business) herself of certain
activities/benefits? Unless you can show that she purposely availed w/ herself of
privileges of the forum state there is no js. Hanson v Denkla
(6) Foreseeability - could the D foresee being hauled in ct?
2. General and Specific Js
a.
General--the D's contacts w/ the forum state are sufficiently "substantial" to
suppose js even over claims unrelated to those contacts.
b.
Specific--js exists for specific claim in question but not necessarily for other claims.
3. Shaffer v Heitner: H
brought suit ag/ the directors of Greyhound corp in which he owned stock. The corp was
incorporated in Delaware. Neither party were residents of the forum state but H brought
suit in Delaware and had the ct sequester shares of the stock belonging to D not w/in the
state.
There must be relation between the Forum, Defendant and the Litigation. Triangle Diagram.
a.
Rules:
(1) Int'l Shoe applies to individuals as well as corps.
(2) Int'l Shoe standard of fairness and substantial justice applies to
in rem actions.
(3) If the claim regards the property, not just attached for js, then
the state has js. State has js over everything w/in the state.
(4) When property is being used simply to provide pj:
(a) presence of property alone doesn't equal js w/o other ties to the
forum state.
(b) Property cannot be subjected to a ct's judgment unless reasonable
and appropriate efforts have been made to give the prop owner actual notice of the action.
(c) Due Process doesn't contemplate that a state may make binding a
judgment ag/ an individual or corp D w/ which the state has no contacts, ties, or
relations.
b. J Brennan concurs but w/ a different approach - He takes a
qualitative approach where Marshall takes a quantitative factual approach.
c.
Sovereign limit on a state's js
4. World-Wide Volkswagen Corp
v Woodsen - bought car in NY. While driving to Ariz got in an accident in Oklahoma. Suit
was brought in Oklahoma.
a.
Fairness to the D made a test under minimum contacts.
b.
Sovereignty v Convenience - protect D ag/ burdens of litigating in distant inconvenient
forum
c.
Foreseeability: The D's conduct and connection w/ the state are such that she should
reasonably anticipate being hauled into ct there.
(1) unilateral activity by consumer is not enough to foresee
(2) "stream of commerce" - pj may be had over a corp that
delivers its products into the stream of commerce w/ the expectation that they will be
purchased by consumers in the forum state.
(a) J white disagrees saying that the D must purposely direct the
action towards the forum state.
(b) Ends w/ the retail sale of the product even if it;s foreseeable
that the purchaser will take the product to another state.
(c) Gray v American Radiator--ct says state pj ok if a corp delivers
its products into the stream of commerce w/ expectation that they will be purchased by
consumers in the forum state.
d.
WWVolkswagen has never been reversed. Represents a very narrow and restrictive interp.
*There's a sovereign limit on pj.
*Restrictive reading on purposeful availment is probably still good, foreseeability
factor.
*Emphasis on predictability and purposeful availment. Gives D some notice of when they can
expect to be hauled into ct.
5. Fairness Considerations
Burgerking
a. 2
Step analysis: (1) See if you have min contacts. Then see if they are a substantial
connection to the forum state. (2) Then apply elements of fairness analysis.
b.
Fairness test
(1) Burden on the D
(2) Forum state interest in obtaining the most efficient resolution of
controversies.
(3) Shared interest of the several states in furthering fundamental
substantive social policies.
(4) P's convenience
c.
You can compensate for less contacts w/ more fairness or vica-versa. In order to overcome
a high showing of contacts the D has a burden to show that js is extremely unfair.
6. Asahi--the substantial
connection w/ the forum state for min contact must come about by an action of the D
purposefully directed toward the forum state.
*Placing the item in the stream of commerce not enough,the D must purposefully direct his
act toward the forum state.
*Nothing really clear from the ct except that this action shouldn't be taken care of in
the US. This case was different because it was an int'l case. There may have been a
different decision had it been in the states.
7. Burnham--divorce case,
husband served while visiting in Ca. Is this sufficient notice for pj?
Debate in the ct over history and modern notions of fairness. But history wins out in the
vote.
Js based on physical presence alone constitutes due process because it is one of the
continuing traditions of our legal system that define the due process standard of
"traditional notions of fair play and substantial justice."
8. Ct will always have js
long enough to say whether they do or don't have js. Insurance Corp of Ireland v Companie
des Bauxites
*Minimum contacts based on fairness not sovereignty.
9. Forum clauses in Ks
a.
Szukhent
(1) Personal service on an agent is enough for pj. Burnam
(2) Sewer service not acceptable. (The paper the agents got went in the
sewer) But in this case the service notice was prompt.
b. Ct
will void a forum clause if: it's unconscionable or has adhesion elements
*made w/o any bargaining power
c.
Cognovit Clause: consent to judgment ag me w/o my notice, waiver of rt to assert a defense
and the rt to a trail and appeal. These are generally upheld by the cts unless, as above
they are unconscionable.
G. NOTICE
1. Mullane v Central Hanover
Bank--takes on fiction that seizure of property gives notice to the owner
a.
Standard: An elementary and fundamental requirement of due process in any proceeding which
is to be accorded finality, is notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections. The notice must be of such nature as reasonably to convey the
required information and it must afford a reasonable time for those interested to make
their appearance. But if w/ due regard for the practicalities and peculiarities of the
case these conditions are reasonably met, the constitutional requirements are satisfied.
b.
Minimum of due process i you have to give notice and opportunities for hearing when
dealing w/ rts of someone's property.
c.
Mullane says mailed notice is constitutional, but where there's a statute requiring a
higher standard one must act at the level of the statute.
d.
Publication by newspaper acceptable when: (1) Persons whose whereabouts are unknown and
who cannot be located, (2) Persons whose interest are unknown or future. It is not
acceptable when it is not calculated to reach those who could easily be informed by other
means at hand.
e. 4
things to know from Mulland
(1) Have to show that party clearly tried to notify.
(2) Are there other methods more likely to work?
(3) Practical limits to what is required in order to give notice. (Is
it reasonable?)
(4) Every case is very fact specific.
2.
Brief outline of RULE 4
3. Long-arm statutes - you
must look to the state long-arm statute to see if you can obtain js and the manner of the
service of process. Omni
a.
Does my statue authorize my service of process?
b.
Does my service of process meet due process standards?
c. Is
Fed Ct different?
(1) Yes if there's a fed statute which authorizes national service of
process.
(2) No w/o statute js reach is the same.
H. Venue - flows from statutory rather than
constitutional sources; the general fed venue statute is 28 U.S.C. 1391-1392,
1441a,1404,1406
1. Typically tries to place
suits in areas connected either to the parties or the events giving rise to the action.
2. 1404a motions - change of
venue
(1) so flexible can be influenced by political motives
(2) always take the law of the transferring state - this rule is broad
enough to prevent most tactical abuse, exception is Ferens v John Deere
I. Transfer and Forum non-conviens
1. Black-letter law 1404
- Transfers
a.
(a) can only transfer to where the suit "might have been brought"
b.
Can be transferred more than once Rixner v White
c.
Which law applies w/ a transfer? The law of the state where the case was transferred from.
1404a says it's only a change of ct room, not law. Avoids tactical change of to have
more beneficial law.
d.
Must who strong reasons of convenience by moving party to transfer.
e.
Can't use 1404 to go from fed to state ct, only re/ fed ct transfers
**1631 has been interpreted to equal a rt to transfer to state ct. If it's in the
interest of justice, if you could imply refile probably wouldn't receive the transfer.
ex. of circumstances where transfer granted: SOL, expensive search/service of process of a
D, substantial work already done, substantial rulings/litigation.
2. Forum non-conviens - there
are circ where a ct will have js but will refuse to exercise it.
a.
D can make a motion to dismiss on grounds of forum non-conviens.
b.
Elements to be met
(1) Adequate alternative forum
(2) Private interests of the litigants
(a) relative ease of access to sources of proof
(b) availability of compulsory process. ie as to unwilling witnesses
(c) cost of obtaining attendance of willing witnesses
(d) place of the injury, etc.
(3) public interest
(a) local interest in having localized controversies decided at home.
(b) interest in having trial in forum familiar w/ the law to be applied
(c) avoiding unnecessary problems w/ conflict of laws
(d) unfairness of burdening of citizens of an unrelated forum w/ jury
duty
J. Summary of PJ
1. State Ct
a. Is
js authorized?
(1) Is there a state long-arm statute authorizing js?
(a) js basis
(b) service of process
b. Is
it constitutional?
(1) Is there Reasonable Notice?
(2) Is there minimum contacts?
(a) sufficient contacts?
(b) is it fair?
2. Federal Ct
a.
W/in the state
b.
Outside of the state
(1) Is it authorized by the state long-arm statute?
(a) If so, look to state law for the method of service of process.
(2) Is it authorized by a federal statute?
(a) If so, look to the federal statute or Fed rule 4(d) for method
service of process
c. Is
there reasonable notice?
d. Is
there necessary minimum contacts?
(1) sufficient contacts
(2) is it fair?
II. SUBJECT MATTER JURISDICTION
A. Fed cts have limited js over certain kinds of
controversies. This is because the fed cts are cts of limited power and only have the
power to adjudicate cases which the constitution or congress gives them js over.
B. Diversity Jurisdiction Art. III & 1332
1. complete diversity: there
must not be any D having the same citizenship as any P. This is a narrower interp than the
constitutional grant.
a.
Mas v Perry
(1) citizenship depends on domicile = presence + intent to remain
indefinitely. An issue intensely manipulable.
(2) ?s of citizenship and domicile, etc are determined at the time the
suit is filed, not at the time of the occurrence of the event.
(3) Events occurring after filing of the complaint do not destroy
diversity.
(4) Determine diversity by 1332
2. Corporations - now based
on policies designed in statutes, limit choices open to corp.
3. 1359 collusive
creating js not acceptable. Bonafide moves ok.
4. Required Minimum Amount
for Diversity Jurisdiction
a.
$50,000 Minimum
(1) Determined by a good faith allegation of the amount by the P.
(2) To dismiss must show to a legal certainty wouldn't make min. for
js.
(3) If the jury awards less the js was still good. There may be some
small penalties, perhaps don't gets costs and may have to pay costs
b.
Aggregate claims
(1) A single P w/ multiple claims good if it exceeds 50,000.
(2) 2 Ps ag/ a D can't aggregate their claims if they are separate and
distinct. If one P reaches minimum she can sue alone. If other can't make minimum she
can't bring the suit.
(3) Multiple Ps and Ds - if they have total, common, undivided interest
and single title or rt, the value of the total interest is used to determine amount for
controversy.
(4) Aggregate rules becoming more strict.
c.
class action - every claim of every member of the class must meet the js requirement.
d.
counter-claim
(1) no min requirement for compulsory claims when it arises out of the
same transaction or occurrence. It has to be brought or it's barred.
(2) Permissive counter claims must meet min amount.
5. Pendant and Ancillary
Jurisdiction
a.
Pendant Jurisdiction - when ct has js to decide a state claim in the same case which
contains a fed claim of which the fed ct has subject matter js.
(1) 2 Questions:
(a) Power 1367 codifies power element
i) A fed claim where there is js
ii) It arises from a common nucleus of operative facts
iii) Expect to try both claims in one proceeding
(b) Discretion 1367(d)
i) novel or complete issue of state law
ii) state claim predominates the fed claim
iii) fed ct has dismissed all fed claims which the js was originally
based
iv) exceptional circ such as convenience,
economy and fairness to the parities
(2) A fed ct has the discretion to remand a removed case to state ct
when all fed law claims have dropped out of the action and only pendant state-law claims
remain.
b.
Ancillary Jurisdiction - multiparty practice involving counterclaims, cross-claims brought
in by the D.
6. Supplemental Jurisdiction
1367 - codification of Gibbs plus some.
a. to
avoid multiplicity of suits
b.
Don't need complete diversity, but need to show there is js over at least one party.
1367 is added to specifically reverse Finley
7. Removal 1441 D can
remove from state to fed ct if the fed ct would've had original js.
a. If
brought only on diversity grounds can't remove it if any of the D live in the state where
the action is brought.
b.
Sum of rules
(1) Only the D can remove a case to fed ct and only if the P could have
brought suit there originally
(2) you can only remove to the fed ct in the state you are in. Later
you can move for a change of venue to a dist ct in another state.
(3) All D must join in the removal petition in order for removal to
take place.
(4) A fed ct decision to remand a case back to state ct cannot be
appealed by the D.
C. Federal Question Jurisdiction 28 U.S.C.1331
1. Cases arising under the
constitution or laws of the US and treaties.
2. State cts have concurrent
js over fed issues.
3. No amount in controversy
needed for fed question js.
4. Even if fed ct has subject
matter js, personal js must then be established over the D.
5. No diversity is needed.
6. Congress can make fed js
exclusive over certain claims.
7. It must in the P's
complaint, not an anticipated affirmative defense. Louisville & Nashville RR v Mottley
8. Well-pleaded Complaint
Rule - you look only at the well pleaded complaint to decide it there's fed question js.
the controversy must be disclosed upon the face of the complaint, unaided by the answer or
by the petition for removal.
9. Declaratory Judgment Act -
permits D to seek declaration of rts by ct. This cannot create fed question js when the
underlying issue is a state one. Franchise Tax Board
10. Artful Pleading Exception
- recharacterize a pleading, determining what it's "really" about. Only rarely
successful. Bright v Bechtel p201
11. Private Rts of Action -
you can bring a private action involving a fed statute in fed ct if you can conclude that
the fed statute either creates an implied private rt of action or an express private rt of
action (RICO).
D. Abstention - under this doctrine, a fed ct may
either decline or postpone the exercise of js in a case involving a controlling question
of state law until the parties secure a decision on that question from the appropriate
state cts.
Test:
1. Are the proceedings
judicial in nature and ongoing?
2. Do the proceedings
implicate important state interests?
3. Is there an adequate
opportunity in the state proceeding to raise constitutional challenges?
III. THE ERIE DOCTRINE - In a number of situations and for certain
issues, the federal cts are required to apply state rather than federal law.
A. Questions to determine which law applies.
1. Whether there is a
"true conflict". Are there both fed and state rules to apply that cannot be
harmonized?
2. What is the source of the
potentially applicable federal rule of law? The test for the fed rules validity and
governing force varies depending on whether it derives from the Constitution, a statute
enacted by Congress, a ct rule promulgated under the Enabling Act, or purely from
decisional law.
a. Is
the fed rule grounded in the Constitution itself. Federal law governs in this case always.
b. Is
it from a federal statute?(ie rule regarding nationwide service of process) If so it
governs as long as it's constitutional.
c. Is
it a rule of law from the Federal Rules of Civil Procedure? If so the Enabling Act (28 USC
2072) provides the test for validity.
(1) It must be arguable procedural, dealing w/ practice, procedure or
evidence.
(2) It must not abridge, enlarge or modify any substantive rt.
*It must also be constitutional.
d. Is
it judge made law? (ie equitable doctrine of laches) If so it should not govern in fed ct
if it fails the "twin aims" of Hanna v Plumer
If the fed cts do not follow the state, rule it will encourage forum-shopping between
state and federal cts and inequitable administration of the laws by providing different,
and possible outcome-affecting, regimes of applicable law?
B. State law in federal ct
1. Rule of Decision Act -
provides that the laws of the state, except where the Constitution or treaties of the U.S.
or and Act of Congress otherwise require, shall be regarded as rules of decision in civil
actions in the cts of the states where they apply.
2. Swift v Tyson - defined
the Rule of Decisions Act phrase "law of the several states" to mean only
legislative/statute law, not state common law.
a.
Under this interp the ct followed their own view of what the general common law/natural
law was supposed to be.
b.
Fed ct decisions on this general common law wasn't binding on state cts, thus different
rules of law could apply to the same transaction, and different results would happen
simply because of the forum choice.(Fed cts always bound by the state statutes, just no
the state common law).
c.
Problems
(1) lack of uniformity because it didn't help develop a uniform common
law.
(2) led to forum shopping; litigants manipulate fed js to assure
application of favorable conditions in fed ct. Black and white Taxicab
(3) historical research brought doubt on the decision that the drafters
intended to mean a general common law from the term "laws of the several states"
(4) No constitutional basis for the ct's law making authority. Swift
presumed a general law making power in the fed cts which the Constitution doesn't grant.
3. Erie overrules Swift -
held that in the absence of an Act of Congress providing governing law, a fed ct should
follow state common law tort principles rather than developing and applying its own
"general common law/natural law".
Erie overruled Swift because:
(1) Ct accepted arg that the language of the Rules of Decision Act
wasn't intended to exclude all state "general" common law.
(2) It allowed discrimination by noncitizens ag/ citizens of the state
the suit was brought in by not applying the law as the state ct would.
(3) Didn't provide for uniformity.
(4) Equal protection of the law impossibly by the out-of-state party to
control which law was applied.
(5) Fed gov hasn't been given the power to rule on all general matters.
10th Amendment basis for this arg.
C. Principle Cases Developing Erie
1. General guidelines from
SC: in matters in the fed cts arising under state law, apply state substantive law and
federal procedural law.
Easy to say, hard to do. Where do we draw the line?
2. Outcome Determinative Test
- Guaranty Trust co v York
a.
Will the application of the fed law instead of the state law significantly affect the
outcome of the litigation?
b.
Criticism: any procedural rule could possibly affect the outcome of the case so the cts
always decide in favor of state law.
3. Balancing Test - Byrd v
Blue Ridge Eelctric Cooperative
a.
Outcome determinative factor will be only one of many factors including state and fed
interests in deciding which rule applies.
b.
Important contribution of this case: You may override the state rule w/ the fed rule if
the federal interest is greater than the state interest.
(1) Is the state right a substantive one or simply a procedural policy?
(2) Fed ct has interest in its own smooth functioning and the
uniformity of decisions governing its procedures.
4. Chambers v NASCO - Fed ct
has auth to give sanctions for unappropriated behavior beyond any statutory authority,
rule 11 stuff. This state ct wouldn't have been able to do this.
5. Twin Aims of Erie - Hanna
v Plumer--apply these aims of Erie rather than the prior tests from the above cases.
a.
Twin Aims of Erie
(1) Discouragement of forum shopping
(2) Avoidance of inequitable administration of the laws.
b. If
it's outcome determinative we may still apply federal law if it meets the twin aims.
c.
Safe harbor for federal rules of civil procedure
(1) holding of Hanna: under the Rules Enabling Act the SC has the power
to adopt fed rules regarding practice and procedure in the fed cts as long as the rules
don't abridge, enlarge, or modify substantive rts.
(2) If there is no conflict, both fed and state law apply.
(3) If there is conflict:
(a) If there's a valid (constitutional) federal statute or rule this
rules over conflicting state law. Strong presumption in favor of the validity of the
Federal Rule.
(b) If the state law is not outcome determinative, then fed law is
used.
(c) If state law is outcome determinative and there is no
countervailing federal interest, then state law controls. Otherwise fed law is applied. in
applying this test the cts are to be guided by the twin aims of Erie.
6. Walker & Burlington
Northern RR v Woods Ct creates an accordion of rule 3, interpreted narrowly, then broadly.
7. Stewart - ct moves away
from Erie w/o overtunning it.
a.
Asks simply whether there is a federal statute broad enough to cover this
issue.
b. Ct
construes many of these statutes broadly enough to cover.
8. Ascertaining state law -
another are where the law looks like Swift v Tyson. Certification procedure aren't always
that helpful.
IV. PLEADING
A. History - In early English law there were cts of
Law and cts of Equity.
1. courts of law - provided
for specific legal remedies using forms of action.
2. courts of equity -
recognized that in some situations it was unfair to deny someone a remedy so they designed
a system based on equitable procedures if there was no adequate remedy of law.
3. In 1848 these 2 cts were
merged and the Field code was created. This served two functions:
a.
merged law and equity into one ct.
b.
abolished different forms of action and made only which was called a pleading
4. In 1938 the Rules Enabling
Act authorized the Federal Rules of Civil Procedure. These further simplified the
procedure of pleading and now all fed cts and most states have adopted them.
B. Modern pleading - federal rules purpose of
pleading is designed to give notice of the nature of the claim.
1. Rule 7 - limits # of
pleading, essentially only one pleading to a complaint
2. Rule 8 - General Rules of
Pleading
a.(1)
statement for grounds of js
**(2)
short and plain statement of the claim showing that the pleader is
entitled to relief,
(3) demand for judgment for the relief sought
b.
Defenses; forms of denials/ANSWERS
(1) Denials Rule 8b & d
You've got to admit those things you can't deny, have to specify those you do deny, and
can't just do a blanket denial. Denials must be handled w/ good care.
c.
Affirmative Defenses
d.
(e) Inconsistent or alternative theories of relief are acceptable. It's a conditional
pleading based on the way the ct views the facts.
3. Specificity
a. If
it is clear from the face of the claim that some essential element is missing it will be
dismissed.
Campbell v Laurel
b. Be
sure than w/in the factual allegation you make you cover the essential elements. Rannels
different from Campbell because the elements could be inferred from the facts. Whereas in
Campbell there was nothing said about one of the essential elements
c.
Rule 9 - requires some matters to be plead w/ specificity
(1) Fraud, Mistake - state w/ particularity
DiLeo v Ernst & Young
(2) Condition of the mind -ie malice, intent, knowledge may be averred
generally
(3) special damages - specifically
(4) rule 11 sanctions can be given if this isn't done
*There are a lot of areas where fed cts are beginning to erect a requirement of more
specific pleading. These include RICO claims, certain kinds of civil rts cases, but this
also changes with time.
(5) A motion for a more definite statement may be made under Rule
12(c). If the D makes a motion or judgment on the pleading it is the same as a 12b6.
4. Burden of pleading v
burden of proof
a.
Ordinarily when you have the burden to plead you have the burden to persuade. There's also
the burden of production, may shift.
b. To
determine burdens:
(1) look at the history of the substantive law involving you claim,
example look at rule 8 & 9. This list is good only in federal court and it's arguable.
ie. contributory neg in 8(c) it'll depend on your state
(2) who has best access to the evidence on the issue? You may want to
allocate the burden on the party who is in a better position to know and prove an element.
ie. con neg, the P could better prove this.
(3) fairness. Where would it be most fair to give the burden?
(4) the probability that particular fact will or will nor not exist. ie
P required to plead that the debtor didn't pay, society says we pay our debts, since most
people pay them then P has burden of showing there was non-payment in this case. The more
improbable the event is the more the Plaintiff is likely to have the burden of proof.
C. Responding to the Complaint
1. General info for the
answer (notes and problems p 424)
a. D draws up the answer.
b.
once drawn up what to do w/ the answer: rules 5a & 5b; serve it on the opponent,
usually by att'y, then w/in a reasonable time file it w/ the ct.
c. 20
days to file answer; rule 6a governs computation of time, 5d w/in reasonable time
d.
answer must respond to the factual allegations
2. possible responses
a.
reasons why the ct shouldn't proceed w/ the action
b.
demurrer--even if true there isn't a basis for legal relief or whether P has joined an
essential party
c.
denials
d.
aff defenses
e.
requests for clarifications and more info
3. Pre-answer motion--Rule 12
- before you file an answer you should look under rule 12 to see if you can file a motion
to strike or dismiss.
a.
some defenses are waived if you don't include them in you motions 12g & h--include
lack of js, improper venue, insufficiency of process, insufficiency of service or process
b.
these are aff defenses, not raised by a simple denial
c. go
through the notes and problems p425
4. Denial 8b & d
a.
b--deny only those allegations that he actually disputes
b.
d--any allegation not denied is deemed admitted.
c.
general denial--denies each and every allegation in the complaint
You've got to admit
those things you can't deny, have to specify those you do deny, and can't just do a
blanket denial. Denials must be handled w/ good care.
5. Affirmative Defenses
a.
8c-not a comprehensive list
b.
Layman v Southwestern Bell Telephone Co. p433
ct comes up w/ a test of issues that can be raised upon a general denial and those that
must be raised as an affirmative defense: if D rests simply on the allegations of the P's
complaint it can be brought up under a general denial.
why is an easement not good under a general denial? one of the critical factors is
whether or not doing so will surprise, disadvantage the P.
The purpose of pleading affirmatively any material is to avoid any unfair,
prejudicial or surprise to the P.
c.
notes and problems p437-39
6. Reply--Rule 7a requires a
reply for: counterclaim, cross-claim, 3rd party complaint
no requirement to reply to new facts alleged in an answer
7. Amendments--Rule 15
a.
when can amend?
(1) as a matter of course at any time before a responsive pleading
(2) if not placed on trial calendar w/in 20 days after it's served
(3) otherwise, only by leave of ct or by written consent of the other
party
(a) freely given as justice so requires
(b) philosophy behind federal rules is that amendments will be allowed
freely when justice so requires unless the amendment will create: undue delay, prejudice,
bad faith, etc.
(c) undue delay always involves whether there was any bad faith and
questions of prejudice. The cases are generally very balanced, see Quarray note 5. Beeck
and Quarry show that these kinds of questions of when you can amend can be very tense and
difficult to decide.
(4) there are points that cts don't allow amendments, ie closer to
trial, time past, it all comes back to the same standard.
b.
STATUTE OF LIMITATIONS AND RELATION BACK - governed by rule 15c
relates back if:
(1) arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading.
(2) only if there's a change of party w/in the period approved who knew
or should've known they were a party of the suit(received adequate notice)
V. DISCOVERY--rules 26-37 - go through the notes and problems
80-90% of a litigator's practice
A. Rule 26 master rule
1. b1--most imp
a.
only limit is relevance & privileged--certain info protected from discovery
(1) 5th Amendment
(2) Att'y/client privilege--protect communication
general trend ag/ privilege
only shield the communications, not info that you can get from other sources.
b.
limits of discovery abuse
2. Insurance Agreements -
pragmatic, if not insured they won't get any $, thus this knowledge imp at start
3. Trial prep/materials -
exempts these materials except on particular showing.
4. Experts (very contentious)
- when seek discovery by experts by perpounding interrogatories, then maybe a depo. But in
reality people generally just forego the formality for the depo.
5. c--means of responding
party to seek protection from burdensome discovery
6. e--under no general duty
to supplement except:
