Outline - Civil Procedure - VI - Pleadings

Civil Procedure (2005-2006)

VI. PLEADINGS

A. Complaint

1. Common Law – Writs; filing the wrong one gets case dismissed; retain:

a. Law vs. equity for jury right

b. Equity requirement of no adequate remedy at law

c. Equity defenses of laches and unclean hands

2. Code Pleading – Allowed for pleading in the alternative; retain:

a. Merger of law and equity

b. Single form of action

c. Primacy of merits over procedure

d. Still kept in some form in New York and California

3. Modern Pleading – FRCivP

a. 8(a) Minimum requirements

i. (identification of parties – Rule 10)

ii. short and plain statement for jurisdiction

iii. short and plain statement of the claim

iv. demand for judgment

b. 8(e)(2) Alternative claims allowed, even if inconsistent [McCormick v. Kopmann]

c. 8(f) Construe for substantial justice [Conley v. Gibson]

d. 10 Captions, paragraphs, exhibits

e. 12(b)(6) Failure to state claim may be grounds for motion to dismiss

f. 12(e) Motion for more definite statement (factual sufficiency)

4. Special Pleading

a. Courts may not require a heightened pleading standard except in cases of fraud or mistake [Leatherman]

b. In California, where causation is not obvious, plaintiff must plead how conduct of each defendant was substantial factor in causing or prolonging injury. [Bockrath v. Aldrich Chemical, Inc.]

c. Must state special damages.

B. Responding to Complaint

1. Types of responses

a. Denials (answer)

b. Defenses (answer)

c. Demurrers (pre-answer motion or answer)

d. Lack of jurisdiction or improper venue (pre-answer motion or answer, whichever is filed first)

e. Counterclaim (answer)

f. Procedural defenses (answer or pretrial motion)

2. Pre-Answer Motion

a. Structure

i. Notice of the motion

ii. Motion itself

iii. Certificate of service

iv. Memorandum in support

v. Affidavit

b. Rules

i. 12(b)(6) – Motion to dismiss for failure to state a claim (demurrer)

ii. 12(c) – Motion for judgment on the pleadings (motion to dismiss for failure to state a claim after pleadings are closed)

iii. 12(e) – Motion for more definite statement

iv. 12(g) – Must raise all available Rule 12 defenses/objections in 1^st pre-Answer motion

v. 12(h)(1) – Lack of PJ

vi. 12(h)(2) – Failure to join necessary Rule 19 party

vii. 12(h)(3) – Lack of SMJ

viii. 56 – Motion for summary judgment

3. Answer

a. Timing

i. 12(a)(1) – 20 days after service or 60 days after request for waiver of service, but

ii. 12(a)(4) – Denial of a Rule 12 Motion extends Answer deadline to 10 days after denial

b. Minimum substantive requirements for notice

i. Admit, deny, or state lack of sufficient information to form a belief as to truth, of each & every factual averment in Complaint (failure to specifically deny = admit)

ii. All affirmative defenses

iii. All waivable defenses unless already waived or asserted by prior Motion to Dismiss

iv. Any counterclaims or cross-claims

c. Cases

i. Fuentes v. Tucker – Where drunk driver amended answer, admitting liability, evidence of inebriation was introduced in error, but was harmless.

ii. Zielinski v. Philadelphia Piers, Inc. – Denials shall fairly meet the substance of the averments denied; where defendant did not contest injury or fact of collision, a general denial was not effective where the fact at issue was agency.

iii. Microsoft v. Halifax – If client has reason to know something is true, don’t deny; but if opposing party controls information, deny.

iv. Ingraham v. United States – Defendant may not “lie behind a log” and ambush plaintiff with unexpected defense; all affirmative defenses must be made in Answer or amended Answer.

d. Defenses

i. Must be in pleading or amended pleading under Rule 8(c): Defenses under Rules 9 and 12, laches, statutes of limitations, exclusion from insurance policy coverage, assumption of the risk, contributory negligence, duress, truth of defamation, fraud, illegality, failure of consideration, statutes of frauds, payment, release, waiver, arbitration & award, res judicata, estoppel, immunity, statutory cap, statutory exclusion

ii. Should be in pleading: Any defense that may be an affirmative defense

C. Policing the Pleadings – Always do this!

1. Rule 11(b) – Representations to Court

a. (1) No improper purpose

b. (2) Warranted by existing law or nonfrivolous argument to change law

c. (3) Factual allegations supported by evidence

d. (4) Factual denials warranted by evidence

2. Rule 11(c) – Sanctions

a. (1) Initiation

i. (A) By motion, served but not filed if withdrawn or corrected within 21 days

ii. (B) Sua sponte (no 21-day safe harbor)

b. (2) Nature and limitations – some or all of reasonable attorney’s fees incurred as part of violation

i. (A) Non-monetary for violation of (b)(2)

ii. (B) Monetary penalty to court

3. Reasonable Inquiry

a. Business Guides, Inc. v. Chromatic Communications Enterprises – Firm and client sanctioned for not looking into grounds for copyright suit

b. Kraemer v. Grant County – Where opposition held all information, which would not come out until discovery, relying on client is reasonable and permissible

4. Improper Purpose [Saltany v. Reagan, Saltany v. Bush – Where there is a violation of Rule 11, there must be sanctions; the federal courts are not a forum for “protest” suits that have no merit]

5. Warranted by Existing Law – Rule 11 requires only “outline of a case” [Frantz v. U.S. Powerlifting Federation – As long as each claim is supported and has been investigated and researched before filing, no sanctions]

6. Reasonable Denials – Rule 11 sanctions appropriate where defendant has no reasonable basis for motion for summary judgment [Committe v. Dennis Reimer Co., LPA – Defendant who waved PJ cannot motion for summary judgment for lack of PJ; attorney’s fees not granted to pro se plaintiff, but other expenses are]

D. Amending the Pleadings – Always check this

1. Philosophy – Liberal rules for amending pleadings; spirit to decide cases on merits instead of pleadings. [Foman v. Davis – Woman who was promised inheritance allowed to amend complaint to assert claim in quantum meruit]

2. Rule 15(a) – Amendments

a. Can amend any time before answer is served.

b. Can amend within 20 days after answer is served.

c. After 20 days, must get court or opponent’s consent.

d. Opponent must respond in time left for original pleading or within 10 days after service of amended pleading, whichever is longer, unless court orders otherwise. [Nelson v. Adams USA Inc., et al. – Plaintiff cannot amend complaint to add sole shareholder of a company as an individual and to move for summary judgment simultaneously]

e. Court will decide motion for leave to amend on same standard as motion to dismiss for failure to state a claim.

f. Factors

i. Undue delay?

ii. Improper motive?

iii. Undue prejudice?

iv. Futile?

3. Rule 15(b) – Amendments to Conform to the Evidence

a. If extra issue tried without objection, implied consent to amend

b. Not necessary to amend to conform to evidence

c. If objection raised, standard to amend freely for merits, unless opponent prejudiced (which court can cure via continuance)

4. Rule 15(c) – Relation Back of Amendments

a. When permitted by statute of limitations; or

b. When new claim or defense arose from same conduct, transaction, or occurrence, or

c. Can change party asserted against if:

i. Arose from same conduct, transaction, or occurrence; and

ii. Within time period of Rule 4(m) (120 days of filing original complaint), new party [Zielinski v. PPI]

a) had notice (so not prejudiced)

b) knew or should have known of mistaken identity

d. Barcume v. City of Flint – Female police officers’ claims for alleged discriminatory employment practices relate back, but claims for alleged sexual harassment do not.

i. New claim based on same events relates back

ii. New facts regarding same events relate back

iii. New claim based on new events does not relate back

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