Civ Pro II Outline

PLEADINGS
1.
General
a.
Motions ask the court to make an order
b.
Pleadings:
i.
Make assertions
ii.
Help guide the case as it goes forth, but make no particular demand about what
should happen next.
iii.
To eliminate shams or insufficient claims or defense, these conserve scarce
judicial resources and protect litigants against harassing claims.
1.
They achieve this through motions that can take place with only the
pleadings.
iv.
To narrow the issues
1.
The oldest pleading format is the writ system
a.
Under the writ system, the theory of the case was prescribed, and
elements to be proven were set at the onset of the case.
b.
If, after further investigation, it turned out that the writ did not match the
facts, you would lose the case, even if another writ would have applied.
c.
This was highly rational, and bordered on cold. As the courts were just
establishing their legitimacy it was necessary to seem consistent, even at
the expense of less sophisticated litigants.
2.
The next form of pleading was code pleading
a.
It allowed different theories of the case to be presented, it even allowed
litigants to plead inconsistent facts.
b.
They were limited to causes of action, which were each based on a
particular legal doctrine.
c.
They were hard because you may not know all the facts that youd need
to prove in a code pleading.
d.
Code pleading became so formal that it had some of the same problems
as the writ system, resulting in less justice for the less sophisticated (or
simply unlucky) litigant.
3.
Now the courts have moved on to notice pleading
a.
Still eliminates shams, and limits the focus a bit, main function is to put
the party on notice that there is a legal action pending.
b.
Rule 12(b)(6) eliminates insufficient claims
c.
Rule 12(f) eliminates particular matters.
v.
To guide the parties and the court in the conduct of the case.
vi.
To supply a record for judgment.
2.
Complaint
a.
The goal of any complaint is to survive a 12(b)(6) motion.
3.
Pre-Answer Motions
a.
General
i.
An affidavit setting out any necessary factual information;
ii.
A memorandum of law explaining the legal basis for the motion including
supporting points and authorities (cases, statutes, etc.)

iii.
b.

c.

d.

e.

f.

g.

h.
4.

A proposed form of the order that the judge could sign.

Rule 12(b)
i.
General
1.
Is used when the party has certain preliminary defenses to the claim.
a.
Defenses which would permit a quick dismissal of the complaint, with
little cost.
Amending a pleading in response to notice of a 12(b) motion
i.
Under FR 15(a) a party may amend the pleadings once as a matter of course
prior to the filing of a responsive pleading.
ii.
Since a 12(b) motion is not a pleading, (it is a request for an order) the plaintiff
may amend its complaint after receiving a 12(b) motion, even before a hearing.
Filing a pre-answer motion is optional, any of the various defenses of 12(b) may be
raised in an answer instead.
i.
However, if one chooses to use a 12(b) motion, only one may be filed
1.
All objections and defenses must be considered.
ii.
If no 12(b) motion is filed the defendant must serve an answer within 21, 60, or
90 days depending on the circumstances of service of the complaint. FRCP 12(a)
(1)
1.
Depending on whether or not the party waived service of process and
whether or not they are a citizen of a foreign nation.
Motion for more Definite Statement
i.
Governed by rule 12(e)
ii.
The party contends that they cannot figure out what the complaint is saying, and;
iii.
That they need it to be re-drafted so as to make it intelligible.
iv.
12(e) must be submitted before any responsive pleadings.
Motion to Strike
i.
Governed by rule 12(f)
ii.
Party contends that there is something wrong with the case that is presented, and
that the court should:
1.
Remove some part of a complaint because it is legally insufficient.
2.
Strike out redundant or scandalous claims.
Judgement on the pleadings
i.
Governed by rule 12(c)
ii.
Very rare, because of the breadth of 12(b) motions and because of the modern
rise of the use of Summary Judgement
iii.
Comes after the close of the pleadings
iv.
For example, a party might serve in an answer that the statute of limitations has
lapsed, and then file a motion for a judgement on the pleadings.
v.
Sometimes a 12(c) motion will be submitted with some facts and other things,
and then the court will treat it as a rule 56 motion instead.
1.
To accomplish that, they have to notify the other party, so that they might
present their own facts, and then there will be a hearing on the Rule 56
motion.
Preponderance of the Evidence Standard
i.
Plaintiff must convince the trier of fact that more likely than not (51%+)
Answer

a.

b.

5.
a.
b.
c.

d.

e.
f.

Some defenses are considered waive-able

1.
If they are not asserted in the first defensive pleading, they cannot be raised
later.
a.
The ones that are waive-able are clear from the face of the pleadings, so
they should be dealt with immediately.
Other defenses are not waive-able.
i.
12(b)(6) motion
ii.
Failure to join an indispensable party
iii.
Lack of SMJx
Federal Rule 9 and Special Pleading Requirements
Generally, notice pleading allows the most flexibility at the onset of the trial, to
encourage plaintiffs to bring meritorious claims. In some cases however, the
otherwise liberal rules must be narrowed to prevent abuse and encourage efficiency.
A possible remedy to the vagueness of notice pleading is Rule 9
Rule 9a
i.
You dont need to assert the capacity of a plaintiff with regards to an
organization. You need only claim that they are an officer of an organization and
nothing else.
ii.
The other party may raise the issue by a specific negative averment.
Rule 9c
i.
The conditions precedent to the performance of a contract need not be specified
one by one, it is sufficient to state in general that all of them have been
preformed
Rule 9g
i.
Any special damages out of the ordinary must be pleaded specifically. This is
required to prevent surprise to the defendant
Rule 9b
i.
Pleadings relating to claims of fraud and mistake
1.
Allegations of fraud and mistake can be used as an in terrorem device to
coerce a settlement. That is, sometimes professionals will settle a case having
no merit just to avoid bad publicity.
2.
Once a complaint properly invokes judicial machinery the plaintiff may
begin the discovery process
3.
The platiiff will be privileged to be able to ask -- and have answered-- written
questions of the defendant or to make the defendant answer questions under
oath or to require a medical exam.
ii.
In sum, allegations of fraud or mistake must cite specifically what fraud or
mistake is alleged, so that the defendant may produce evidence and make
arguments to the contrary.
iii.
Conditions of mind like malice, intention, and knowledge may be only
generally averred
1.
These are matters concerning a particular individual, so that discovery is
more easily targeted.
iv.
NB: sometimes fraud is covered up, such that if the plaintiff is required to plead
with some specificity, they may not know what fraud to allege, and it may be that

6.
a.
b.
c.

d.
e.
f.
g.
h.

7.
a.
b.
8.
a.

only by moving forward to the discovery phase that the plaintiff will have an
opportunity to discover the particular fraud.
Rule 11
Burden of production of evidence
i.
Someone to testify, experts, inspection, etc.
ii.
Typically tracks the duty to plead
Burden to plead
i.
Who must raise the issue
Burden of persuasion
i.
If there is a tie, who loses?
ii.
Typically what we talk about when we say burden of proof
iii.
The list in FR 8 answers many common issues about which party must plead
which elements.
Also requires that legal contentions in a pleading be warranted by existing law or a
good faith extention, etc. And that factual allegations have evidentiary support.
The burden of pleading matters because the burden of production at trial usually
follows from it.
The burden of production is the duty to present evidence to the fact finder that is
sufficient to satisfy the matter prima facie.
The discovery provess is ecpensive and often difficult. Hence if the issue is not
likely to come up often, let the defendant be responsible for pleading and comin
forward with evidence of it at trial
If it seems that proof will not be available on a point, allocating the burden of
pleading to one party will effectively mean that person will lose the case.
i.
The person will not be able to meet the burden of producting prima facie
evidence at trial.
The pattern problem
The discovery process is particularly likely to be difficult, expensive, and intrusive
where what must be proven depends on a pattern of activity: the discovery net must
be broadly cast.
This is often true for fraud, which involves knowledge and an intentional
wrongdoing it is also often true for certain civil rights claims, which may explain
why through case law, such claims also were forced to plead with particularity.
Civil Rights Cases
A series of Supreme Court cases have grappled with this statute in the context of
suits against particular government officials.
i.
Theres a tension between giving remedy to those who are badly treated at the
hand of some official, versus protecting elected or appointed officials from
combersome, expensive lawsuits that may discourage public service and/or
prevent the officials from attending to their duties.
ii.
The Supreme Court has ruled
1.
Government officials are liable if their actions or orders vilate consititutional
rights; but
2.
They enjoy a qualified immunity if those actions took place under a
reasonable misapprehension of the law.

3.
iii.
1.
2.
3.
iv.
1.

This is more than an ordinary defense, it is the right not to stand trial and
the right not to be subjected to discovery proceedings.
Qualified immunity
Is sometimes enforced by courts requiring more specific pleading showing
that the official could not have believed his or her acts to be constitutional.
This qualified immunity is a substantive right fo the officials, and one
general proposition of the Rules Enabling act (28 U.S.C. 2072(b)) is that
procedures are not supposed to impair any substantive rights.
Thus if plaintiffs may engage the judicial machinery and win the right to
engage in discovery against individual officials simply by giving notive in
the complaint, the qualified immunity may be undercut.
Ashcroft v. Iqbal
The case doesnt turn on the standards of qualified immunity, but rather on
the new pleading standard set in:
a.
Bell Atlantic v. Twombly.
i.
In anti-trust cases the liberal standards of FRCP 8a must be tightened:
to get past a motion to dismiss and begin discovery, a complaint must
1.
Not simply state legal conclusions; but instead sufficient facts that
would
2.
Not just state a possible claim but instead a plausible claim based
on judicial experience and common sense.

DISCOVERY
AVOIDING TRIAL
JUDGE & JURY
APPEALS
RESPECT FOR JUDGEMENTS
JOINDER