Professional Documents
Culture Documents
P L E A D I N G S
Why: to give notice
Common Law: Modern Law
1. Give Notice 2. Discover Facts 3. Focus Dispute 4. Resolve Claims 1. Give Notice
Types
COMPLAINT
Tells the D what the P is suing for
1. Jurisdiction Rule 8(a)(1) Must state PJ and/or SMJ
Statement must be “short and plain” and state a claim.
Rule 8(a)(2)
If claim can be implied, it’s enough.
Two Basic 1.Incomprehensible
Problems 2.Missing elements (see Rule 9)
2. Short and Plain Fraud and Mistake
Contents
P L E A D I N G S
FRCP Rule Description Tests, Misc.
D’s Attacks cont.
Appropriate when: P filed a complaint, D has filed an answer that admits all the
12(c) Judgment on the pleadings
allegations (everything agreed upon).
Motion for more definitive If pleading vague and ambiguous, D can request motion. If P doesn’t respond
12(e)
statement w/ion 10 days, court will strike that part of the pleading.
ANSWER
D’s response to P’s complaint that admits or denies allegations in the complaint
Significance: either creates a dispute b/c we’re going forward, or ends a dispute b/c facts are admitted to.
FRCP Rule Description Tests, Misc.
12(a)(1) Filing Time Must file w/in 20 days after being served
1. A D must admit or deny each allegation
Failure to respond (admit/deny) is an admission
Kinds of denials
- Failure to resond particularly is a general denial and is an admission
Basic Rules
P L E A D I N G S
1. Can amend by consent of adversary, or
Cont’d.Basic Rules Basic Rules
Afterward
2. By leave of court: to be freely given when justice so requires.
After the SOL has expired, pleader may add a claim or defense when it [test]
arises out of the same transaction or occurrence set forth in a timely filed pleading,
and the date would be put the date as the timely pleading.
SANCTIONS
If violate (1-4) then you will be sanctioned
1. Pleading is not for improper purpose
2. Legal contentions are ‘warranted’
3. Fact contentions have evidentiary support
Signature certifies, based on 4. Denials of factual contentions are similarly warranted or reasonably based on
reasonable inquiry under the lack of information.
Basic Rules
J O I N D E R
BY PLAINTIFF
FRCP Rule Name Description/Test
Single P suing a single D may bring as many different claims as a single D as they want.
18 Add-A-Claim
Test: no restrictions
a. P wants to sue D and wants to add someone else.
b. Can only add additional parties to a single P/D when the claim arises out of the same common
20 Add-A-Party
nucleus of facts
Gibbs Test: Same transaction or occurrence
*** Remember the Rule 15(a) amendments Simple, afterward and after SOL.
BY DEFENDANT
Diagram
FRCP Rule Name Description/Test New claim
Existing Claim
Counter- Impleader Cross-Claim
J O I N D E R
Claim
D is bringing the motion in attempt to dismiss the case – because the case is missing a necessary/indispensable party and they
cannot be joined.
Necessary/Indispensable
A party that was not part of the original litigation wants in.
24(a)(1) By Right: Statutory Compulsory intervention anytime Congress says you can – created by statute.
Has an interest that may be impaired/impeded
Has an economic/political/ideological/social interest
24(a)(2) By Right: Interest
The intervener’s interests may not be adequately protected by the existing parties
(burden of proof is on the intervener)
J O I N D E R
Statutory: Expands As long as any two claimants are from different states, you have minimal diversity
§1335
Interpleader
C L A S S A C T I O N S
Litigation by Representation
WHAT
WHY
representative party, yet not joined There is tremendous incentive for Ds to settle exposure to
2. Two lawsuits underway potential liability has gone up exponentially.
By named P Class action is a form of superjoinder where all the claimants
On behalf of named parties want to be joined to the decision but cannot attend the courthouse.
CERTIFICATION REQUIREMENTS – FRCP Rule 23
a. Can we figure out who these people are?
1. Identifiability b. it is feasible to find these people are they ASCERTAINABLE?
2. Membership The named representative must be of the class described
a. The absent class members must be so numerous that joinder of their Practicality Test: (25-40 People)
individual claims is impracticable. Are the claims so numerous that
3. Numerosity b. Numbers game (in Federal Court) it would be impracticable for them
1-25 people: not enough 40+: enough to be brought separately?
a. There must be at least one question of law or fact that is common to everyone in the class.
4. Commonality b. The result must come out the same way for everyone
c. Individual litigation raises the possibility for inconsistency: group litigation keeps things consistent.
a. Does the named representative have a claim of the same type as the claims of absent class members?
5. Typicality b. Is the claim typical of the class?
Will be a problem if the type of claim is different.
a. Of class counsel b. Of class representative
6. Adequacy 1. Is the lawyer and his resources adequate to the task? 1. Adequate commitment?
2. The more experienced counsel more adequate 2. No conflict of interest?
C. Iskandar – Civil Procedure II Chart – Dean Cameron Page 7 of 14
Spring 2005
C L A S S A C T I O N S
23(b)(1) Anti- Test If individual joinder of claims could subject absent class members No notice
prejudice to the risk of M/D/I litigation, then it’s proper to have this particular No opt
class. out
Designed to avoid prejudice to either P or absent members No notice
Problem of scarcity: not enough to go around for everyone of
23(b)(2) Equitable Test Whether the D has acted or failed to act in a manner generally settlement
applicable to the class.
Relief generally equitable in nature (injunction, specific performance)
7. Category 23(b)(3) Damage Test Questions of law and fact common to class have to predominate; REQUIRED:
and class action method is superior to any other form of joinder. Notice
Superiority: Four factors Opt-out
1. Interest of individual members in controlling the litigation Notice of
2. Extent of litigation clearly commenced settlement
3. Desirability of choosing the forum
4. Difficulty of managing the class
Least-desirable class to the P, and most desirable classification (other
than dismissing the case) to the D due to requirements -----------------
NOTICE
Up-front cost and expose themselves to reduced numbers because people can get
out. Must advise class members of:
Commencement 23(b)(3) Opt-Out 1. Right of exclusion
2. Judgment will have a binding effect
3. May appear w/ own lawyer and file separately; b/c damage awards will be different.
Needs approval of court – needs notice and opportunity to be heard given to absent class members.
Settlement Gives opportunity for class members to object.
Applies to all certifications.
Judge’s Due process requirement requires adequate notice for b(1) and b(20 (not actual notice as b(3)) – at least by
Discretion publication.
JURISDICTION ISSUES
Personal Minimum contacts not required.
Jurisdiction All the class members have consented to the forum via the representative member.
Class actions based on Federal Question don’t raise any special questions regarding
Federal Question
SMJ
Subject-Matter Diversity is based on citizenships of named parties only.
Jurisdiction Diversity Issues
Each member of the class must meet the $75K minimum for amount-in-controversy
Therefore, you rarely see a class action based on diversity, b/c you cannot aggregate
claims to meet the jurisdictional amount.
C. Iskandar – Civil Procedure II Chart – Dean Cameron Page 8 of 14
Spring 2005
C L A S S A C T I O N S
As long as the named class representatives each have a claim in excess of $75K, the
supplemental jurisdiction doctrine applies so that the unnamed members need not meet
the jurisdictional amount.
(Not conclusively Must still satisfy the Gibbs test – one person may supplement the claims of other
Supplemental decided law) members that don’t meet the jurisdictional amounts in order to have a class
certification.
One person may supplement the claims of other members that don’t meet the
jurisdictional amounts in order to have a class certification.
D I S C O V E R Y
1. Ascertain Facts
2. Eliminate undisputed facts
3. Preserve testimony/evidence
purposes
26(b)
Impeaches non-party witnesses
Where private interests > judicial interests
- Work-product doctrine
2. Not privileged
- Attorney-client doctrine
- Protective orders
OBLIGATIONS: Each party must: 1. Self-disclose 2. Investigate 3. Cooperate 4. Comply
methods
Anticipate: if stuff has been filed, then clearly the lawyers are anticipating litigation.
disclosure Doctrine not limited to attorneys: applies to anyone who is preparing info for lawyers.
1. Substantial need, but (reasonably calculated to lead to discovery of admissible evidence)
Unless discovering
2. Can’t get substantial equivalent
party can show 3. W/o undue hardship.
Can never get attorney’s mental impressions, conclusions, opinions, legal theories, etc.
Nevertheless (Protective order)
Need not disclose: 1. Communication
Looking for a memo, letters, substance of oral communications,
etc.
Words such as “secret, confidential, for your eyes only”
2. That is Confidential
Privilege not attached to anything already in public domain.
3. From or to attorney Attorney: someone admitted to practice under bar
Includes anyone working under the attorney in confidential
capacity.
C. Iskandar – Civil Procedure II Chart – Dean Cameron Page 10 of 14
Spring 2005
D I S C O V E R Y
Client: person who hired the attorney; person whom the attorney
privilegeattorney-client
is representing
4. To or from client
Also includes potential clients
Also includes people employed by a client company
Getting information for purposes of committing a crime or
5. For legitimate purposes fraud: will “bust” attorney-client privilege
Illegitimate purposes not protected.
If client has waived privilege, and says okay to disclose, then
it’s fine
6. For which privilege is not If client has already disclosed info to 3rd party or published info.
waived
A D J U D I C A T I O N W I T H O U T T R I A L
ANALYSIS FOR MOTION FOR
SUMMARY JUDGMENT, DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT
The moving party has made a motion for SJ/DV/JNOV under Rule 56(c)/50(a)/50(b).
1st ¶
2. The moving party must show that a reasonable jury must find that __________ because _________
3. But the opponent will argue that no reasonable jury could find that ___________ because ________
Brought After
During Testimony, Examination, Directed Verdict
but before verdict
After Trial JNOV
C. Iskandar – Civil Procedure II Chart – Dean Cameron Page 11 of 14
Spring 2005
T R I A L
RIGHT TO JURY TRIAL
Determine: Whether a particular claim would have gotten you a trial back then
7th A. “Right of trial by jury shall be preserved”
Ross v. Bernhard test: At common law, were you entitled to a jury trial?
TEST:
If didn’t exist is there an analogous claim?
Legal Equitable
Assumpsit Quiet title
Conversion (stealing) Ejectment
1. Nature of
Debt (Money had and received) Fraud
claim Duty of innkeepers Breach of fiduciary duty
Libel or slander (defamation) Replevin
Trespass (negligence) Nuisance abatement
Does the P want money or specific performance?
Money Reinstatement
Injunction
2. Nature of
(Will always trump equitable – if there is a Declaratory judgment
relief sought combination thereof, the Money wins.) Accounting
Restitution
Mandamus
3. Practical Look for: bias, and or complexity of issue
C. Iskandar – Civil Procedure II Chart – Dean Cameron Page 12 of 14
Spring 2005
RIGHT AT COMMON LAW PRESERVED BASED ON
Limits of Jury
Abilities Two Types of Problems
NEW TRIAL
Public Rights Exception needs to be here!!!
P R E C L U S I O N
PRECLUSIVE EFFECTS DOCTRINE
C. Iskandar – Civil Procedure II Chart – Dean Cameron Page 13 of 14
Spring 2005
RES JUDICATA (CLAIM
PRECLUSION)