Law School Outline - Civil Procedure Outline Pleadings

CIV PRO – PLEADINGS 4/11/2023

I. INTRODUCTION

A. Generally: Under Rule 7(a), pleadings are documents filed by the litigants, setting forth their claims and defenses:

1. Complaint: The P initiates suit by filing a complaint.

2. Answer (responsive pleading): The D can then file his own pleading, which is called an answer. The answer responds to the allegations in the complaint and may raise affirmative defenses.

3. Reply (responsive pleading): If the answer contains a counterclaim, the a reply is permitted. If the answer contains a cross-claim, then an answer is permitted.

B. Historical Overview of the Evolution of Pleadings

1. Common Law:(a) Is now abandoned.(b) Dominated by the writ system. Very inefficient.

2. Code:(a) Used by California and New York(b) The centerpiece of code pleading is it emphasis on the facts(c) Specifically, the code complaint should contain a statement of facts constituting the cause of action, in

ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended

3. Federal Rules (notice pleading):(a) Require a less detailed allegation than code pleading.(b) Used in the federal system and by most states.(c) Limited pleading is buttressed by liberal discovery provisions, sanctions for abusive pleading, a retooled

provision for summary judgment,

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II. THE COMPLAINT: REQUIREMENTSA. Elements of the complaint: Governed by Rule 8(a) which requires three things. A complaint lacking any of

these three must be dismissed, although the P will be permitted to amend to correct a formal deficiency:

1. A “short and plain statement of the grounds upon which the court’s jurisdiction depends”

(a) Subject matter jurisdiction: It is essential that the P allege that the court has SMJ. The exception in Rule 8(a)(1) for cases in which the court’s SMJ is already established will not apply to the general complaint, since it is the document that institutes the proceeding

(b) State may have stricter requirements: Some states require the P to allege facts supporting PJ, if the D is a nonresident, and for venue.

2. A “short and plain statement of the claim showing that the pleader is entitled to relief”

3. A “demand for judgment for the relief the pleader seeks”

(a) Demand does not limit recovery: Under Rule 54(c), the P is entitled to recover whatever relief he can prove at trial, even if that is more money than he asked for, and even if it is of a different type that he requested. This is not true in default judgment cases.

(b) Simple statement: Form 3 allows damages to be pleaded as a lump sum. Special damages need to pleaded with particularity. No actual dollar figure need be shown; the P can demand damages in an amount to be shown at trial.

(c) Diversity jurisdiction: There is nothing improper about alleging that the matter in controversy exceeds $75,000 for jurisdictional purposes on Form 2 and making a demand in an amount to be shown at trial on Form 3.

(d) Equitable relief: A P can seek equitable relief, such as an injunction (Form 12), specific performance (Form 16), or declaratory judgment (Form 18). A jury trial is constitutionally guaranteed for legal claims (e.g., damages) but not for equitable claims.

B. Form of pleadings: Rule 10 governs the form of all pleadings in federal court:

1. Caption; Names of Parties: Under Rule 10(a), the caption of any pleading must state the name of the court, title of the case (by parties’ names) and the identity of the document itself. It also lists the file number (also case number or docket number), which the clerk assigns to each case when it is filed. Civil cases are preceded by the designation “CV.” The first number following that denomination in the file number indicated the year in which the case was filed.

2. Paragraphs; Separate Statements: Under Rule 10(b), the body of the pleading sets forth claims or defenses in numbered paragraphs. It is common for P to set forth separate counts for different claims.

3. Adoption by Reference: Rule 10(c) allows parties to adopt by reference allegations found elsewhere in the document and allows parties to attach to their pleading a copy of a written instrument.

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C. Is the complaint legally sufficient?: P’s complaint must be legally sufficient. If on the face of the complaint the allegation could not support a judgment for the P, the case can be dismissed at the outset. Is there a barrier raised by substantive law?

1. Motion to dismiss for failure to state a claim: Rule 12(b)(6) allows for a motion to dismiss for the failure to state a claim or a general demurrer. The court looks only to the face of the complaint; it does not consider evidence that may support the allegations or sharpen the dispute between the parties. The courts asks: If the P proved everything he alleged in his complaint, would the law provide a remedy for him? The D need not attack the entire complaint; he can address one of several claims by the P.

2. Effect of dismissal: If the court sustains the motion, the case is dismissed. It is usually done so with leave to amend; P has another opportunity to draft a legally sufficient complaint. If the court enters final judgment for the D, the P can usually appeal and petition the appellate court to establish a right that will allow the P to state a claim.

3. When can a Rule 12(b)(6) motion be made?: Rule 12(h)(2) allows a D to file a general demurrer as a pre-answer motion, as a motion for judgment on the pleadings, or at trial on the merits. By raising substantive challenges to the sufficiency of the claim as his initial response, the D is spared the expense of preparing an answer and otherwise litigating.

4. Role of evidence: If the D wishes to dispute a fact in the P’s complaint, he cannot raise this issue through a general demurrer or Rule 12(b)(6) motion since those devices do not address actual evidence. The devices assess only the sufficiency of the allegations of the complaint. In this situation, D would file an answer denying P’s allegation. However, under modern practice, if a court looks to evidentiary materials in ruling on demurrer or a motion to dismiss, it simply converts the motion into one for summary judgment.

5. Summary judgment: If the D or P felt that the evidence would show no dispute as to the facts, either party could move for summary judgment under Rule 56. Summary judgment permits the court to go beyond the allegations of the pleadings and to assess evidence. The court makes a determination as to whether, on the evidence proffered (as opposed to in the pleadings), there is a disputed issue requiring resolution.

Example: P is a truck driver hauling goods from NJ to the D’s warehouse in Chicago. When he arrived at the warehouse, D’s loading dock was already in use. D’s employees directed P to park his rig on the public street, adjacent to the driveway leading to the warehouse, and to wait for the loading dock to clear. P parked the truck and waited in his rig as directed. Two unidentified men then attempted to rob P. One of the men shot P, inflicting serious personal injuries. In each of the following variations, assume that P sued D alleging these facts and that he was an “invitee” to whom D owed a duty to guard from criminal acts of third parties. Assume that there is no question that P was an “invitee” under the applicable law. But case law clearly establishes a duty to guard an invitee from criminal acts of third parties only while the invitee is on the D’s “premises.”

(1) P alleges that he was sitting in his rig, parked on a public street when he was shot. D files a general demurrer or Rule 12(b)(6) motion. What result? The demurrer would be sustained b/c the P needed to allege that he was on the D’s “premises.” The P has not said anything that he can recover on.

(2) P alleges that he was sitting in his rig, parked where directed by D’s employees when he was shot. D files a general demurrer or Rule 12(b)(6) motion. What result? A stronger case has been made, but the demurrer would probably still be upheld b/c the P did not allege that he was on the D’s “premises.” There is no claim for relief.

(3) P alleges that he was sitting in his rig, parked on D’s “premises” when he was shot. D contends that P was parked on a public street instead. D cannot raise this issue through a general demurrer or Rule 12(b)(6) motion, since those devices do not address actual evidence or allow the court to determine disputed facts. Again, they assess only the sufficiency of the allegations of the complaint. In this situation, D would file an answer denying P’s allegation that he was parked on D’s “premises.” At that point, the pleadings would have framed a disputed factual issue requiring resolution. It may be said that the pleadings are “joined,” because they present such a dispute. The court must assume what the P says is true.

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(4) If D or P felt that evidence (perhaps from witnesses or from the parties themselves) would show no dispute as to this factual issue of where the rig was parked, either party could move for summary judgment. See Rule 56. Summary judgment permits the court to go beyond the allegations of the pleadings and to assess evidence. The court makes a determination as to whether, on the evidence proffered (as opposed to in the pleadings), there is a disputed issue requiring resolution. Suppose the uncontradicted evidence showed that P was parked on the public street. Would D be entitled to summary judgment? Not sure; even though the evidence shows that P was parked on a public street, the law may extend the D’s premises beyond its actual property line. There may be other evidence (e.g., affidavits) that supports P’s claim.

(5) Is there anything ethically improper about P’s alleging that he was on D’s premises when shot? Rule 11 states that a party can’t allege something that it isn’t true. Neither can his lawyer. Need to ask what “premises” means, though.

D. Is the complaint factually sufficient?: If we assume that the law affords a claim for the P, the question is whether the P has pleaded that claim in sufficient detail to proceed in the litigation. The code system requires P to plead with greater specificity than the Federal Rules.

1. Code pleading: Code states generally require that the P make “a statement of facts constituting a cause of action, in ordinary and concise language, without repetition.” Generally the P is required to state not just “facts” but the “ultimate facts” constituting his claim. The code system of pleading is illiberal relative to the Federal Rules.

(a) Too specifically: A P who alleges facts too specifically could be guilty of “pleading the evidence,” for which the court would sustain D’s special demurrer

(b) Too generally: A P who alleges facts too generally could be guilty of “pleading conclusions of law,” for which the court would also sustain D’s special demurrer.

Example: A P suing in ejectment (to oust a D from possession of property) must plead and prove several issues, one of which is that his title to the disputed property is superior to that of the D. Suppose the P had purchased the property from D and could prove due execution of the contract, payment, and even that D had given his a deed to the property. Which, if any, of the following is a pleading of the “ultimate fact” of his superior title? (a) P alleges that he “has superior title to the property.” (b) P alleges that he is “entitled to possession of the property.” (c) P alleges that he “had paid for the property pursuant to contract and that the D had given his a deed to the property.” Today, it is probable that courts in code states would accept any of these allegations. There is old authority, however, that the P in situations (a) and (b) alleged improper conclusions of law. In (c), the one court held that P had pleaded too specifically, and thus was setting forth evidentiary facts instead of ultimate facts. The result was especially absurd because it reversed a judgment for the P after full trial. The court remanded the case to the trial court, where it permitted the P to amend his complaint to state the “ultimate facts” of his superior title. Then the case was to be retried!

2. Federal Rules pleading: Under Rule 8(a)(2), there is no pleading requirement of stating “facts sufficient to constitute a cause of action,” but only that there be “a short and plain statement of the claim showing that the pleader is entitled to relief.”

(a) Inartistic pleading: The Supreme Court ruled that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the P can prove no set of facts in support of his claim which would entitle him to relief. The object of procedure is to secure a determination on the merits rather than to penalize litigants because of procedural blunders. However, the function of the complaint still requires giving the D fair notice of what the P’s claim is and the grounds upon which it rests. Conley v. Gibson.

(b) “Pro se” appearances: A litigant may eschew the services of an attorney. Such a party is said to litigate “pro se” or “in propria persona.” Courts are more lenient with such parties than with parties represented by counsel.

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(c) Factual allegations must cover all elements: The factual allegations of the complaint must cover all elements of the substantive claim. Omitting one of the elements or alleging an element insufficiently renders the complaint subject to attack as legally insufficient. The complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Some courts require that the complaint either contains direct allegations on every material point necessary to sustain recovery under some legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will introduced at trial

(d) Challenges to pleadings: When evaluating the sufficiency of a complaint, instead of lavishing attention in the complaint until the P gets it just right (general demurrer), a court should keep the case moving – if the claim is unclear by requiring a more definite statement under Rule 12(e), and if the claim is clear but implausible, by inviting a motion for summary judgment.

(1) Failure to state a claim: Rule 12(b)(6) motions to dismiss for a failure to state a claim on which relief can be granted and are usually filed in lieu of an answer. The Rule 12(c) motion for judgment on the pleadings does the same thing as Rule 12(b)(6), but is raised after the pleadings are closed under Rule 7(a).

(2) Unclear pleadings: Parties can challenge an unclear pleading through the Rule 12(e) motion for more definite statement and Rule 12(f) motion to strike.

(e) Cost of liberal pleading rules: By making it easier to meet the formal requirement of factual sufficiency, the Federal Rules make it easier to proceed to the more expensive phases of litigation, notably discovery.

E. Is there a heightened specificity requirement?: The following are important exceptions to the liberal pleading requirements of Rule 8(a)(2):

1. Federal Rules: Capacity under Rule 9(a). Fraud, Mistake, Condition of Mind under Rule 9(b). Conditions Precedent under Rule 9(c). Special Damage under Rule 9(g).

2. Civil rights cases alleging municipal liability under 42 U.S.C. §1983: A municipality can be sued under §1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury. In these cases, there is no heightened specificity requirement, unless it falls under some other rule as listed above.

F. Are inconsistent facts or alternative theories pleaded?: Under Rule 8(e)(2):

1. Pleading alternatives when the facts are unclear: A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses.

2. Sufficiency is required of only one count: When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.

3. Contradictory or inconsistent counts are permitted: A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds.

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4. Reasonable basis: All statements shall be made subject to the obligations set forth in Rule 11. The P must be uncertain to what the facts are.

5. Risks to the P: A P does assume some risks in adducing proof to support inconsistent counts. The proof in support of one inconsistent count necessarily tends to negate the proof under the other count and to have its effect upon the jury. While the fact alone of inconsistent evidence will not bar submission of the case to the jury, it may very well affect the matter of the weight of the evidence. In separate actions, the pleadings in one case can be used as an “admission against interest” against the P in the other case.

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III. THE COMPLAINT: DISMISSALA. Voluntary dismissal: Under Rule 41(a) there are two ways a P may seek voluntary dismissal:

1. By P or stipulation under Rule 41(a)(1).

(a) An action may be dismissed by the P without order of court by filing a:

(1) notice of dismissal at any time prior to the occurrence of both of the following:(i) service by the adverse party of an answer; OR (ii) a motion for summary judgment

OR

(2) stipulation of dismissal signed by all parties who have appeared in the action.

(b) Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. [A default rule. A voluntary dismissal with prejudice is usually the consequence of a settlement of the claim.]

Exception: A notice of dismissal (as opposed to a stipulation by all parties) operates as an adjudication upon the merits when filed by a P who has once dismissed in any federal or state court an action based on or including the same claim. Put another way, the dismissal is with prejudice. The rationale is not to keep the D on a string with constant apprehension of litigation. Also mitigates the temptation for Ps to “judge shop” by refiling and dismissing until a favorable judge takes the bench.

Example: The P files and serves his complaint in federal court. Before D can take action, the P files a notice of dismissal. Now the P brings the case in federal court a second time, but voluntarily dismisses by stipulation of all parties who have appeared. Both dismissals are without prejudice. If the second dismissal had been by notice of dismissal, then it would a dismissal with prejudice.

Example: Pennzoil filed suit in Delaware and sought a preliminary injunction against Texaco. Delaware court said no and seemed to adjudicate on the merits. The next day Pennzoil filed a notice of voluntarily dismissal, refiled in Texas and won a large judgment there. Texaco should have answered or moved for summary judgment prior to Pennzoil filing its voluntary dismissal.

2. By order of the court under Rule 41(a)(2).

(a) Except as provided in Rule 41(a)(1), an action shall not be dismissed at the P’s instance save upon order of the court and upon such terms and conditions as the court deems proper.

(b) If a counterclaim has been pleaded by a D prior to the service upon the D of the P’s motion to dismiss, the action shall not be dismissed against the D’s objection unless the counterclaim can remain pending for independent adjudication by the court.

(c) Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. [A default rule. But the judge can decide whatever he wants.]

Exception: At the point when the law clearly dictates a result for the D, it is unfair to subject him to continued exposure to potential liability by dismissing the case without prejudice.

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B. Involuntary dismissal:

1. For failure of the P to prosecute or to comply with the FRCP or any order of court, a D may move for dismissal of an action or of any claim against the D. [Despite the language of the rule, a district court may move for dismissal on its own volition.]

2. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. [Default rule for dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19 is without prejudice. Rational: The courts want to decide cases on the merits rather than on procedural technicalities. The whole purpose of the notice system of pleading is to ease restrictions on access to the courts.]

Exception: Rule 60(b) can provide relief from judgment if the case if dismissed with prejudice.

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IV. CHALLENGING PERSONAL JURISDICTIONA. Special appearance (minority): Allows the D to appear in the forum solely for the purpose of contesting PJ.

If the D does more, such as assert a defense or ask for a continuance, he is deemed to have made a “general appearance.” However, a notice for removal is generally excepted.

B. Federal Rule 12 (majority): Abolishes the distinction between general and special appearances by allowing the D to raise several defenses simultaneously while contesting PJ.

1. Timing: Rule 12(a) dictates when defenses and objections can be made.

(a) Answer: A D shall serve an answer within 20 days after being served with the summons and complaint.

(b) Motion: Unless specified elsewhere, the service of a Rule 12 motion alters the periods of time as follows:

(1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court’s action; or

(2) if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.

2. Defenses: Rule 12(b) permits the D to raise seven specific defenses either in a “responsive pleading” or “by [pre-answer] motion.” The seven defenses are:

(a) Lack of SMJ: Not waivable.

(b) Lack of PJ: Waivable; must be raised at the first opportunity.

(c) Improper venue: Waivable; must be raised at the first opportunity.

(d) Insufficiency of process: Waivable; must be raised at the first opportunity.

(e) Insufficiency of service of process: Waivable; must be raised at the first opportunity. (f) Failure to state a claim upon which relief can be granted: Can make at trial.

(g) Failure to join a party under Rule 19: Can make at trial.

3. Consolidation of defenses: Rule 12(g) allows a party to consolidate all Rule 12 motions. However, once a party makes a Rule 12 motion, the following defenses are deemed waived if they are omitted from such motion:

(a) Lack of jurisdiction over the person.

(b) Improper venue.

(c) Insufficiency of process.

(d) Insufficiency of service of process.

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4. Motions made under other rules: Rule 12(g) does not waive any Rule 12 defenses for a motion made under another rule (such as a stay of proceedings or a §1404(a) transfer).

5. Defenses that must be raised at the first opportunity: Rule 12(h)(1) states that the following defenses are waived if they are neither made by motion under Rule 12 nor included in a responsive pleading or an amendment thereof under 15(a) (they can be raised on appeal):

(a) Lack of jurisdiction over the person.

(b) Improper venue.

(c) Insufficiency of process.

(d) Insufficiency of service of process.

6. Defenses that can raised at any time before judgment: Rule 12(h)(1) does not waive the following defenses if they are omitted from a motion and Rule 12(h)(2) states that they may be raised in any 7(a) pleading, or by motion for judgment on the pleadings, or at the trial on the merits, but not on appeal:

(a) Failure to state a claim upon which relief can be granted.

(b) Failure to join a party indispensable under Rule 19.

(c) An objection of failure to state a legal defense to a claim.

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V. DEFENDANT’S OPTIONS IN RESPONSE: MOTIONSA. Failure to state claim: The Rule 12(b)(6) pre-answer motion to dismiss for failure to state a claim on which

relief can be granted serves two functions:

1. Tests legal sufficiency: First, it tests the legal sufficiency of the P’s claim, questioning whether the law accords a remedy on the facts alleged. (This is done by the general demurrer in code states.)

2. Tests factual sufficiency: Second, it tests the factual, or formal, sufficiency of the complaint, questioning whether the P has set forth his claim in appropriate detail. (This is done by the special demurrer in code states.)

B. Summary judgment: D may also seek dismissal on a variety of other grounds. If the facts are undisputed, and the D is entitled to judgment as a matter of law, he may bring a motion for summary judgment under Rule 56.

Example: If the statute of limitations has run, or if the claim is barred by claim or issue preclusion (res judicata or collateral estoppel), summary judgment may be a vehicle for early dismissal of a case.

C. Relief other than dismissal: D may bring motions for relief other than dismissal:

1. Rule 12(e) motion for a more definite statement: If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleadings. Only available to Ds.

2. Rule 12(f) motion to strike: After the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The motion to strike can serve a similar substantive function to the Rule 12(b)(6) motion. For example, a claim for relief not available as a matter of law can be stricken under Rule 12(f).

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VI. DEFENDANT’S OPTIONS IN RESPONSE: THE ANSWERA. Responses to the Plaintiff’s Allegations: Under Rule 8(b) provides three possible responses to the various

allegations of the P’s complaint. The D can admit, deny, or claim that he lacks sufficient information to admit or deny.

1. Timing: Under Rule 12(a)(1), an answer must be filed within 20 days with being served with the summons and complaint.

2. Using motions as a dilatory tactic: Under Rule 12(a)(4), motions delay the obligation to serve the answer by 10 days. However, Rules 12(g) and 12(h) says that you get one motion and all motions must be consolidated under this motion, unless otherwise specified..

3. Effect of failure to deny: Rule 8(d) provides that allegations not denied are deemed admitted. Those allegations that are properly denied are said to be “joined,” which means that they are in dispute and ripe for adjudication.

B. Admissions: There are many allegations of a complaint which the D will admit such as allegations of citizenship of the parties for diversity of citizenship purposes, allegations that the parties entered into a contract, and many others, may not be in dispute. It is incumbent on the D to admit such allegations. Thus, the pleadings serve to establish undisputed facts on which there need be no trial.

C. Denials:

1. General denial: A very short pleading, the operative language of which can be as simple as “D denies each and every allegation of the complaint.” Must be done in good faith. Use with care!

2. Specific denials: Denials used in combination with admissions in responding to the allegations of the complaint. Responding to each paragraph of the complaint individually is a common practice.

Example: An answer could say: “D admits the allegations of Paragraph One of the Complaint. D denies the allegations of Paragraph Two of the Complaint,” and so forth.

3. Qualified general denial: The D need not match the complaint paragraph for paragraph, so long as she denies those allegations she needs to deny.

Example: If appropriate on the facts, the answer could provide: “D admits the allegations of Paragraph Five of the Complaint, and denies each and every other allegation of the Complaint.”

4. What if a single paragraph of the complaint contains both material the D wishes to admit and material he wishes to deny?: An answer that neither admits nor denies allegations but demands proof of the P’s claims at trial is worthless, and allegations of the complaint are deemed admitted.

5. Pleading contrary facts: Rule 8(b) requires that “denials shall fairly meet the substance of the averments denied.” Thus, counsel should resist temptation to plead contrary facts. In addition, a D who wants to deny allegations should simply do so without getting fancy or demanding.

Example: Suppose the complaint alleged that on a certain date, “the D negligently drove his car on Main Street in Apalachicola, Florida, and ran over the P.” Instead of simply denying the allegations, D alleges that on the date mentioned, “D was on vacation in Brazil.” This is an “argumentative denial,” and runs the risk, at least in code states, of being deemed an admission of the facts alleged by the P. In federal court, it will likely be effective as a denial, but it may create problems if it is not clear what allegations are being put in issue.

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(1) Negative pregnant: Another problem is the “negative pregnant,” which can result from a denial that is too literal.

Example: Suppose again that the P alleges in Paragraph Four that on a certain date, “the D negligently drove her car on Main Street in Apalachicola, Florida, and ran over the P.” The most direct approach would be “D denies the allegations of Paragraph Four.” Instead, suppose that he says: “D denies that he negligently drove his car on Main Street in Apalachicola, Florida, and ran over the P.” Such a literal denial is “pregnant” with the admission that the D negligently drove her car at some other time or in some other place and ran over the P.

D. Denials for lack of knowledge or information: Rule 8(b) allows a party to state that he is “without knowledge or information sufficient to form a belief as to the truth of an averment” and that such an allegation “has the effect of a denial.”

1. Good faith requirement: Because of the requirements of good faith and veracity under Rule 11, however, this defense cannot be used if the D has reasonable access to the information or if it is a matter of public record or general knowledge.

E. Effect of admissions and denials:

1. Admissions: When the D admits an allegation of the P’s complaint (either expressly or by failing to deny), the allegation can be taken as true; no proof is required of such issues at trial.

2. Denials: When the D denies an allegation of the P’s complaint (whether by express denial or a proper denial for lack of knowledge or information), the allegation is said to be “joined.” This simply means that the issue is contested – that it is an issue on which an evidentiary determination is required.

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VII. DEFENDANT’S OPTIONS IN RESPONSE: AFFIRMATIVE DEFENSESA. Generally: Rule 8(c) lists nineteen affirmative defenses (something other than a denial) that must be pleaded.

If not, they are waived. Rationale: A policy choice. Do not want to put the burden of proof on the P.

1. Rule 8(c) is not exhaustive: Also requires the assertion of “any other matter constituting an avoidance or affirmative defense.” At common law, a D could use a plea in confession and avoidance, which would admit the P’s allegations but raise new matter that would “avoid” liability for those allegations.

Example: a D might admit that he had breached a contract, but assert that the contract was unenforceable because it violated the rule that it must be in writing under the statute of frauds.

2. Different than a denial: Affirmative defenses differ from denials by injecting new matter into the dispute.

Example: Suppose that the P sues for battery, alleging that the D struck him. If the D did not strike the P, he will simply deny the P’s allegation. On the other hand, if the D struck the P, but did so in self defense, he will admit the P’s allegation and raise the affirmative defense of self defense. In the first case, the D is merely denying the P’s version of the story. In the second, he is injecting a new set of facts upon which his defense is premised.

B. Conditional imperatives: How do we distinguish between what the P must allege in the complaint and the D must allege as an affirmative defense? Roughly stated, the “ifs” in the equation are elements of the P’s claim, and the “unlesses” are affirmative defenses. The substantive law of each jurisdiction allocates each of the items to the “if” or “unless” category. Thus, in the battery hypothetical above, the substantive law requires the D to allege self defense. More often than not, it is a policy choice predicated on an assessment of the fairness of requiring one party or the other to bear the burden of proof at trial.

Hypotheticals:

1. In his answer in a contract case in federal court, the D asserts that the contract is not enforceable because it was not in writing, as required by the Statute of Frauds.

(a) Why is this an affirmative defense? Introduces new matter per Rule 8(c). In addition to averring it in his answer, the D may be able to raise his affirmative defense in a motion for summary judgment.

(b) If the P thinks that the Statute of Frauds does not apply to this contract, what response does he make? Why? The P can do nothing because an affirmative defense does not make the answer a responsive pleading (in this case that would be a counterclaim or a cross-claim). Under Rule 8(d), averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

2. Rule 8(c) provides that the D “shall” plead his affirmative defenses. A D who fails to do risks waiving the defense omitted. However, the D might be able to amend his answer to assert the affirmative defense. Suppose that the D failed to raise an affirmative defense in his answer, but used it as a basis for a summary judgment motion. Should the court conclude that he waived the affirmative defense? Although courts have reached different conclusions, the trend is to allow the motion.

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VIII. AMENDED PLEADINGS: GENERALLYA. Rule 15(a) sets forth the basic principles for amending a pleading::

1. a party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, [usually refers to the complaint]

2. if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. [usually refers to the answer]

3. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party;

4. and leave shall be freely given when justice so requires.

5. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

Hypotheticals:

(1) P files his complaint and has process properly served on D. Before D answers, P files an amended complaint adding new claims and seeking an additional $6 million in damages. Why did P have a right to do this? P may amend his complaint any time before the D’s responsive pleading (in this case the answer).

(2) P files his complaint and has process properly served on D. D makes a motion to dismiss under Rule 12(b)(6). Reading D's motion, P realizes that D is correct, since P left out material allegations of his claim. Before the hearing on D's motion, P files an amended complaint fixing the problem raised by D's motion (and thereby mooting the motion). P had an absolute right to do this. Why? Why is Rule 7(a) relevant to your answer? Since the 12(b)(6) motion is not a responsive pleading under Rule 7(a), the P has the right to amend her complaint. To avoid this result, the D could have asserted motion to dismiss in his answer.

(3) When must D respond to an amended complaint? A D must respond to an amended complaint within the time remaining on the original complaint or within 10 days notice of the original complaint, whichever is longer, unless the court orders otherwise.

(4) P files his complaint and has process properly served on D on May 15. D files his answer and has it served on P on June 3. On June 22, D files and serves an amended answer, correcting some errors in the original answer. Why does D have a right to do this? The D may amend his pleading within 20 days of service if his answer does not require a responsive pleading (i.e., it does not contain a counterclaim) and the action has not placed upon the trial calendar.

(5) If P in Question 1 and D in Question 4 had waited too long to take advantage of amendment of right, what showing would they have to make to be allowed to amend? The parties would ask for a leave of court, which is freely given in the absence of undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment.

B. In granting “leave to amend,” the key issue is prejudice: The court must ask if the other side been harmed by the omission. Is the D any worse off than he would have been if the claim had been made in the original complaint? Has the delay harmed the D in some way? (Example: P is suing D for breach of contract and amends to sue for fraud. The fraud was committed by D’s treasurer, who died last week. His testimony is now unavailable.) In addition, a judge may not want to delay on the eve of trial. Either the P or the D could appeal the judgment but may not be granted a new trial or may not be worth it. Also, consider who is best able to bear the burden of the amendment (risk allocation).

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IX. AMENDED PLEADINGS: VARIANCEA. Generally: Suppose P’s complain alleges breach of contract, and at trial he introduces evidence that D breached

a different contract, or committed a tort. The presentation of evidence on a point not covered in pleading is called variance.

B. Rule 15(b) allows amendment to conform the pleadings to the evidence presented at trial:

1. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

2. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

3. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits.

4. The court may grant a continuance to enable the objecting party to meet such evidence.

Example: P sues for patent infringement and then introduces evidence of a claim for unfair competition. D objects to introduction of evidence on the latter claim. (a) The court will sustain the objection and bar admission of the evidence. Why? If evidence is introduced that doesn’t conform to the pleading, the other party can object; (b) After the court sustains the objection, what motion might P want to make? The party must move to amend the pleadings (use the same prejudice standard as 15(a))

C. Objection: If party does not object to evidence raised at trial that was not within the issues made by the pleadings, the party is deemed to have impliedly consented to them. Once a party does object, the party seeking the amendment must move to amend. If the statute of limitations has run, then party can not amend the pleadings if the issue does not relate back.

D. A D can amend to include the “waivable” defenses: Rule 12(h)(1)(B) allows for the waivable defenses to be included in the amended pleadings pursuant to 15(a). Furthers the goal of having liberal pleading rules to get to the merit of the dispute.

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X. AMENDED PLEADINGS: STATUTE OF LIMITATIONSA. Amendment to claims or defenses: The liberal policy of the amendment provisions may clash with the

policies underlying other rules, such as statutes of limitations. Suppose a case is filed before the statute of limitations runs. Then, after the statute would have run, one of the parties to the cases seeks leave to amend to state a new claim or defense. Rule 15(c) governs these situations.

B. Defeating the SOL through “relation back”: Under Rule 15(c), an amendment of a pleading relates back to the date of the original pleading when:

1. Permitted by law: relation back is permitted by the law that provides the statute of limitations applicable to the action; OR

2. Arises out of the same circumstances: the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; OR

3. Changing the party: the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) [120 days of filing the complaint] for service of the summons and complaint, the party to be brought in by amendment:

(a) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits; AND

(b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

XI. SUPPLEMENTAL PLEADINGS

A. Generally: Under Rule 15(d), a supplemental pleading sets forth events occurring after a pleading is filed. This does not include facts that occurred before the original filing but which were discovered after filing. As to such facts, amendment is the proper course. Supplemental pleadings update the dispute by bringing new facts to the attention of the court, even if the change the relief sought or add additional parties.

B. Procedure for supplementation: A supplemental pleading is allowed only with court permission; there in no such thing as supplementation of right. Typically, courts freely grant leave to supplement, unless there is undue delay, prejudice or bad faith.

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XII. VERACITY IN PLEADINGS: RULE 11 AND OTHER DEVICESA. Generally: Rule 11 is the main source of standards for proper conduct in litigation.

B. Signature: Under Rule 11(a), every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party.

C. Representations to the court: Under Rule 11(b), by presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

1. Allegations not for improper purposes: it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

2. Legal contentions must be valid: the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

3. Allegations must have evidentiary support: the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

4. Evidence warrants denials: the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

D. Sanctions: Under Rule 11(c), the court may enter, on its own initiative, an order describing the specific conduct that appears to violate Rule 11(b). A sanction imposed for violation of Rule 11 shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Monetary sanctions are paid into the court.

E. “Safe harbor” provision: A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate Rule 11(b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

F. Balancing act: Access/advocacy/innovations vs. efficiency/expense/deterrence.

G. Model Rules of Professional Conduct: The following is a list of the most important provisions:

1. Rule 3.3(a)(1): A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

2. Rule 3.3(a)(4): A lawyer shall not knowingly offer evidence that the lawyer knows to be false.

3. Rule 3.3(c): A lawyer may refuse to offer evidence that the lawyer reasonable believes to be false.

H. Federal statute: 28 U.S.C. § 1927 provides that any lawyer in federal court who “multiplies the proceeding in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and, attorney’s fees reasonably incurred because of such conduct.” The courts are split on whether bad faith must be shown in addition to objective reasonableness.

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Law School Outline - Civil Procedure Outline Pleadings

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