Pci - Week 4 : Choice Of Law And Pleadings

Front 1

Choice of Law

What are the two types?

Back 1

Horizontal and vertical

Horizontal - what US state's law applies

Vertical - whether state law of federal law will apply

Front 2

What choice of law rules will apply?

Back 2

The choice of law rules of the forum state will apply. Understand: This does not necessarily mean that the substantive law of the forum state will apply.

Front 3

For tort cases, how do we determine which state's law applies?

Back 3

Look to the Restatement 145

It sets out the most significant relationship Test. Most states and Texas follow the Restatment.

Does not mean you automatically get TX subst law. It means you get the law with the most significant relationship.

Front 4

What is the doctrine of lex loci delicti?

Back 4

It is an old doctrine that has been overruled. It says that the law of the state where the tort occurred applies. Today, the MOST SIGNIFICANT RELATIONSHIP test applies.

Front 5

What is the dissimilarity doctrine?

Back 5

It is an old doctrine that generally has been overruled. Under that doctrine, Texas courts were required to dismiss certain causes of action for want of jurisdiction when the tort laws of another forum were considered to be so different from those of Texas as to make it impossible for a Texas court to apply and enforce them. Rule today…

Front 6

What is the significance of procedural law v. substantive law?

Back 6

If it’s a procedural issue, the procedural law of the forum state applies.

Exception: If it is considered to be part of the substantive law of the other forum, it’s at least possible that Texas might regard it as substantive.

For example, the SOL can be considered substantive, depending on the particular cause of action and the state law at issue.

Front 7

What is the first step of a choice of law analysis in a tort case?

Back 7

RS § 6 – Does a statutory directive apply? (i.e. UCC) If so, apply it. In most situations, however, a statutory directive will not apply.

Front 8

If a statutory directive does not apply, what is the next step

Back 8

MOST SIGNIFICANT RELATIONSHIP .

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, &
(d) the place where the relationship, if any, between the parties is centered.

Are these factors listed in rank order of importance? No!
You can use all of them, specifically the ones that are most favorable to you.

Front 9

What is party autonomy?

Back 9

It means that in contract, the courts will generally give effect to the parties’ agreement on which state’s law will apply.

if the issue in the case is one that you coul have resolved in you Contrract, we will resolve the conflict of the contract based on you that COL.

If is is something like Capacity t(hat which could not be governed by the contract) we will still use your choice of law rules unless:
1. you choose the law of a state w/no relation to the dispute; or
2. It violatea fundamental public policy of the state.

Front 10

BUT what about an example of where the statutory provisions prevail?

Back 10

Tex Business and Commerce code says:

We will give you force adn effect to your COL clause but our willingness to do so is not unlimited.

Look closely at RS §187: If subsection (1) is satisfied, we don’t get to subsection (2). Thus, if the parties agree that the law of Hawaii will apply, and it’s an issue that they could have resolved by an explicit provision in their agreement, we’re done (even if Hawaii doesn’t have any relationship with the parties or the transaction).

If it’s an issue that they could not have resolved by an explicit provision in their agreement, we move to subsection AND STILL apply the parties' COL unless:
1. the state has no relation to the dispute; or
2. contravenes public policy

Front 11

In a choice of law analysis, what matters more – the quantity or quality of contacts?

Back 11

Quality. We look at the weightiness of each contact, not the number of contacts.

Front 12

Vertical Choice of Law

Finding the legal rule that resolves an issue when both state and federal law resolve an issue differently.

WHICH DO WE PICK?

Back 12

28 USC 1652 - Rules of decision act.

You fo w/ state law unless the contrary federal rule is a treaty, statute, or constitutional provision.

Front 13

What happens when we have a federal rule of civil procedure?

Back 13

We go with Fed Rules of Procedure unless they Abridge, Enlarge, or Modify an substantive legal right. (AEM)

Front 14

BUT there are some laws that it cannot be clear whether they are procedural or substantive.

How do you make the determiation?

Back 14

The court says:
1. Ask whether the state law is substantive (if not and procedural, AEM all day). If it is substantive =
2. Does it fed rule AEM the subst state law? If so, go with state law.

Front 15

BUT WHAT IS SCALIA'S TEST?

Back 15

LOOK to the FRCP, if the FRCP is rationally capable of classification as a procedural rule, then then go with FRCP. It trumps regardless of whether the State law is subst.

Follow scalia, otherwise the FRCP depends on the will of the states to say that there law is subtantive.

Front 16

How do you establish choice of law provisions when a suit is filed in a court that is not right?

Back 16

It depends on why it is not right.

if it is not right becuase it is improper due to venue or personal jurisdiction, you need 1406 transfer. IN THIS SITUATION, THE TRANSFEREE COURT COL IS USED.

Front 17

what if we have a convenience transfer on a motion from the plaintiff or the defenant?

Back 17

THE TRANSFEROR COURT RULES APPLY REGARDLESS OF WHO ASKS FOR THE TRANSFER.

Front 18

Convenience Transfer

Back 18

Rule: Following a 1406(a) transfer (because improper), regardless of which party requested the transfer or the purpose behind the transfer, the transferee court must apply the choice of law rules of the state in which it sits.

BUT 1404 transfer for convenience use the col of the transferor court

Front 19

Improper Venue

Back 19

Rule: Following a 1406 transfer from a district in which personal jurisdiction over the defendant could not be obtained, the transferee court must apply the choice of law rules of the state in which it sits, regardless of which party requested the transfer.

Front 20

PLAINTIFFS PLEADINGS

Back 20

Key: Texas is a fair notice pleading state.

Front 21

TRCP 47: Claims for Relief
An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain

Back 21

(a) a short statement of the cause of action sufficient to give fair notice of the claim involved,
(b) in all claims for unliquidated damages only the statement that the damages sought are within the jurisdictional limits of the court, and
(c) a demand for judgment for all the other relief to which the party deems himself entitled.

Relief in the alternative or of several different types may be demanded; provided, further, that upon special exception the court shall require the pleader to amend so as to specify the maximum amount claimed.

Front 22

Alternative claims for relief

Back 22

Claims in the alternative are certainly allowed in the pleadings.
Understand, however: This is a rotten way to try a case!

Front 23

Paragraphs

Back 23

Many lawyers don’t number their paragraphs. State courts won’t usually kick back the pleadings for this reason, but it’s technically what the rules require. If for no other reason, you should do it because it makes reference back to prior pleadings easier.

Front 24

What we should include in the pleadings?

Back 24

1. Disc. Control Plan
2. Parties or Jurisdiction and Venue
3. Jourisdiction and Pleading
4. Factual Background
5. Causes of Action
6. Damages or other relief
7. Prayer - rastatment of all of the types of relief you want.
8. Signature block.

Front 25

Do you need a certificate of service?

Back 25

No an origional petition does not need a certificate of service because at this point, you do not know which attorney you will be serving.

Not being served under rule 21. Special rules of service for original petitions.

Front 26

Pleading Jurisdiciton

what does it involve?

Back 26

Involves both PJ and SMJ as a general rule you add this. there is not rule requiring it.

the court entertains the presumption that SMJ and PJ are met.

UNLESS in a court of limited jurisdiciton, the plaintiff pleads himself out of jurisdiction

you DO have to plead smj before time of trial. has to be in the record.

Front 27

iF jurisdiction is based on SMJ how do you plead it?

Back 27

You simply say it.

Front 28

Are you req'd ot peasd PJ?

Back 28

not specifically but you should in the parties heading/ By showeing up and filing YOU have subjected yourself to PJ. If you file against a texas resident, you should be OK.

Front 29

How do you plead PJ over a non-texas resident?

Back 29

It depends. Only when you need something in the record to rebutt a default judgment.

But you can never tell when you are going to have a default judgement so you should alway plead PJ.

Front 30

You must plead by tracking the language of the statute.

Back 30

If the statute requires SMJ or to prove contacts, you need to track the language of the statute.

REMEMBER: outside of a default judgement situation, the court presumes PJ but they do not in a summary judgement context.

Front 31

Hypo: Non-resident individual causes an accident while driving through Texas. How can we serve him?

Back 31

TCPRC §17.063: Method of Service; Notice to Nonresident
(a) A certified copy of the process must be served on the chairman not later than the 20th day prior to the date of return stated in the process.

(b) Immediately after being served, the chairman by properly addressed letter shall mail to the nonresident or agent:
(1) a copy of the process; and
(2) notice that the process has been served on the chairman.

(c) The notice and copy of the process must be sent to the nonresident or agent by registered mail, or by certified mail, return receipt requested, with the postage prepaid.

(d) After the chairman deposits the copy of the process in the mail, it is presumed that the process was transmitted by the chairman and received by the nonresident or agent. The presumption may be rebutted.


TCPRC §17.062: Substituted Service on Chairman of Texas Transportation Commission
(a) The chairman of the Texas Transportation Commission is an agent for service of process on a person who is a nonresident or an agent of a nonresident in any suit against the person or agent that grows out of a collision or accident in which the person or his agent is involved while operating a motor vehicle in this state.

(b) Process may be served on the chairman in accordance with this section for a nonresident who was a resident at the time the cause of action accrued but has subsequently moved from the state.

Front 32

Hypo: 93-year-old non-resident man is on his way to Florida for vacation. He stops at the Dr. Pepper museum and assaults someone. How can we serve him?

Back 32

TCPRC §17.042: Acts Constituting Business in This State
In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:
(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

So he’s technically doing business in this state!

TCPRC §17.044: Substituted Service on Secretary of State
(a) The secretary of state is an agent for service of process or complaint on a nonresident who:
(1) is required by statute to designate or maintain a resident agent or engages in business in this state, but has not designated or maintained a resident agent for service of process;
(2) has one or more resident agents for service of process, but two unsuccessful attempts have been made on different business days to serve each agent; or
(3) is not required to designate an agent for service in this state, but becomes a nonresident after a cause of action arises in this state but before the cause is matured by suit in a court of competent jurisdiction.

(b) The secretary of state is an agent for service of process on a nonresident who engages in business in this state, but does not maintain a regular place of business in this state or a designated agent for service of process, in any proceeding that arises out of the business done in this state and to which the nonresident is a party.

(c) After the death of a nonresident for whom the secretary of state is an agent for service of process under this section, the secretary of state is an agent for service of process on a nonresident administrator, executor, or personal representative of the nonresident. If an administrator, executor, or personal representative for the estate of the deceased nonresident is not appointed, the secretary of state is an agent for service of process on an heir, as determined by the law of the foreign jurisdiction, of the deceased nonresident.

(d) If a nonresident for whom the secretary of state is an agent for service of process under this section is judged incompetent by a court of competent jurisdiction, the secretary of state is an agent for service of process on a guardian or personal representative of the nonresident.

Front 33

McKanna by serving the SOS of TX under that statute. The SOS in turn forwarded the citation to McKanna. McKanna did not appear in the TX court. Thus, Edgar obtained a DJ. McKanna thereafter instituted this action to set aside the DJ.

What was the pleading defect in this case?

Back 33

Plaintiff alleged in his petition that McKanna resided in Orange County, CA and that she executed and delivered the note. However, there were no allegations that McKanna did not maintain a place of regular business in the state or a designated agent upon whom service may be made. That’s what is required in order to serve the Secretary of State!

If you fail to plead jurisdictional facts properly and a default judgment is entered, and that default judgment is attacked directly, it can be overturned. Plead your jurisdictional facts properly!!

Note: If you fail to plead jurisdictional facts properly, and the defendant shows up, the defects are waived. But you can’t plead hoping the other party will show up!!

Front 34

Plading VENUE

Same idea goes for venue

Back 34

If the defendant wants to deny venue facts, they have to poit them out specifically.

So plead venue facts so that you switch the burden to the defendant to specifically deny.

Front 35

General Rule for us:

Back 35

Plead venue by pleading as many facts as you cna to establish venue because if they are not specifically denied they are excepted ast true.

Must plead venue under COA nto the merits.

Find a basis for venue and plead them as my facts and also if based on a coa, plead coa specifically and properly.

Front 36

What about pleading amount?

Back 36

Peek v Equipment

Bottom line in Texas state court: When you specifically plead an amount below the jurisdictional limit of the court, you’ve pled yourself out of court. When you don’t specifically plead an amount below the jurisdictional limit of the court, the court will assume the best.

Note: In federal district court, you must plead your amount very specifically. General pleadings are not enough.

Remember in TX you are not allowed to plead an amount for unliquidated damages.

Front 37

Can the absence of SMJ be pled for the first time on appeal?

Back 37

Yes! This will be a rare case, but it can happen. Lesson: If you don’t plead your SMJ properly, you will always be at risk.

Front 38

Venue rule:

Back 38

Rule: When a defendant pleads venue facts (in his motion to transfer) and the plaintiff fails to specifically deny it, the trial court is required to consider that venue fact as true.

Front 39

Pleading and mispleading parties

What is the relation back doctrine?

Back 39

Don't forget:

TCPRC § 30.014
In initial pleading you must include last three numbers of party’s SSN and driver’s license, if party has one

If you already have a claim existing against one defendant, and now you want to add a new claim, the question is: Does the new claim arise out of the same transaction or occurrence as the original pleading? If so, relation back will ordinarily apply.

Front 40

Even if we apply the relation back theory, where do we relate back?

Back 40

Under FRCP 15(c), it’s possible to name and serve the wrong party, but the right party must have notice of it within the limitations period. If the wrong party doesn’t have notice within the limitations period, it would make sense that the interrelated right party also wouldn’t have notice within the limitations period. In this case, NO ONE received notice within the limitations period. That was the kicker.

Front 41

What is the difference between misnomer and misidentification?

Back 41

(2) Misnomer v. Misidentification:
(a) Misnomer: You know who you mean to sue, but get their name wrong
(i) Generally includes serving process on the right person, w/ the wrong name
(ii) This will give the proper Δ notice in all but the most extreme situations

(iii) Will toll SoL, as long as misnomer was not so severe as to fail as notice
1. i.e. Tolls as long as Δ receives proper notice w/in SoL

(iv) Π will have to amend his pleading to name the right party
(v) EXCEPT: simple misspellings are negligible, court can correct them on motion of the annoyed party

(b) Misidentification: You are wrong about who you mean to sue, or just don’t know
(i) Generally includes serving the wrong person entirely
(ii) DOES NOT TOLL SOL
(iii) No equitable exception to misidentification of individuals. (Cortinaz)
(iv) Equitable exception wrt ENTITIES:
1. Elements:
a. Separate but related entities use similar trade names;
b. The correct entity has notice of the suit (w/in SoL); and
c. The correct entity was not mislead or disadvantaged by π’s mistake

2. If Δ contributed to mistake (similar names, worked together, etc) more likely to find exception.

Front 42

Suit in Assumed Name (TRCP 28):

Back 42

(c) Suit in Assumed Name (TRCP 28):
(i) In TX (no federal equivalent), you can sue an entity in its assumed name (the name they are holding themselves out to be).
1. Does not depend on the Bus. & Com. Code assumed-name provisions (Doesn't have to register ass name)
2. Any name that they hold themselves out as is their “assumed name” here
(ii) It is neither a misnomer nor a misidentification
(iii) special exception → parties true name may have to be substituted.

(d) If no evidence of whether misidentification or misnomer occurred, court assumes misidentification:
(i) π has burden to prove he sued the right guy
(ii) E.g. “Henry Bunting” vs. “Henry Bunting, Jr.” → misidentification, unless there is some evidence that the proper person was served.

Front 43

What is the legal effect of misnomer?

Back 43

If the plaintiff misnames the correct defendant, and the defendant is not misled, limitations is tolled and a subsequent amendment of the petition relations back to the date of the original petition

Front 44

Can you argue misnomer in both the individual and business context?

Back 44

Yes.

Front 45

Can you argue misidentification in both the individual and business context?

Back 45

(b) Misidentification: You are wrong about who you mean to sue, or just don’t know
(i) Generally includes serving the wrong person entirely
(ii) Does NOT toll SoL
(iii) No equitable exception to misidentification of individuals. (Cortinaz)
(iv) Equitable exception wrt entities:
1. Elements:
a. Separate but related entities use similar trade names;
b. The correct entity has notice of the suit (w/in SoL); and
c. The correct entity was not mislead or disadvantaged by π’s mistake

2. If Δ contributed to mistake (similar names, worked together, etc) more likely to find exception

Front 46

What was the deal with Uvalde Country Club? How was it different from Cockrell?

Back 46

Recall that in Cockrell, the plaintiff simply misspelled the defendant’s last name (Cockrell v. Cockrall). In Uvalde, the citation said Henry Bunting instead of Henry Bunting, Jr.
Difference → In Cockrell, we’re clearly in a misnomer situation. In Uvalde, we have no idea.

Front 47

What is the assumed name provision?

Back 47

TRCP 28: Suits in Assumed Name
Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court's own motion the true name may be substituted.

Recall: The defendant doesn’t have to have an official assumed name filing with the SOS to come within the purview of this provision.

Under this rule, if we determine that someone is operating under an assumed name, we don’t even get to the misnomer/misidentification analysis!

Court said: Based on TRCP 28 – The original petition naming the surgeon as an individual was effective to commence suit against the PA doing business under the surgeon’s name.

Front 48

What is the rule from continental Railways?

Back 48

If you have actually been named or actually been served you better answer.

Front 49

PLEADING and mispleading CAUSES OF ACTION

What are the two types of pleadings?

Back 49

Evidentiary pleadings - pleading just the facts. Facts that lead to an inference of the coa but hte plaintiff never says COA (ex. Negligence)

Legal conlusion pleadings - I am suing you for negligence arising out of an auto collision on ____.

Front 50

What is required to plead a COA in Texas?

What is fair notice?

Back 50

(1) TRCP 45 –“plain and concise language,” such that “fair notice to the opponent is given.”
(a) Need not divulge all factual/evidentiary basis
(i) but, must plead sufficient facts to establish venue/TJ/SMJ(fed)

(b) Fair notice = sufficient notice to allow Δ to present a defense to the claim asserted
(i) Either name the CoA and enough facts to provide Δ context, or
(ii) Provide enough facts that Δ can discern what CoA is being pled
1. BUT:
a. If the facts pled could give rise to multiple CoAs, and
b. Δ fails to file a special exception to make π amend his pleadings,
c. Π can name the CoA at trial!

(iii) E.g. alleging negl., but putting on proof of negl. per se, fails to give adequate notice b/c a Δ would defend the two claims differently!
(iv) E.g. “1/7/07, π was injured as a result of your negligence” – insufficient!

(v) If π’s pleadings don’t give enough to defend, file special exception and demand clarification

Front 51

EX. Castleberry

Plead willfull negligence and willfull gross negligence but then argued statue that required intentional injury

Back 51

Court said: An allegation of willful negligence or willful gross negligence is an allegation based on negligence and is insufficient to allege intentional injury.

Front 52

Murray v. O&A
Young was driving a truck owned by Defendant. Truck broke down. Young pulled over on the shoulder but not totally off the road. He turned his lights off and went to the other side of the road to flag another vehicle down. A car driven by the Plaintiff, in which Christian was a passenger, hit the truck. The accident killed Christian and injured the Plaintiff. Plaintiff sued for negligence. During trial, Plaintiff established negligence per se and instructed jury on the issue.

Back 52

Court said: The pleading of negligence does not provide fair notice for a claim of negligence per se.
Why? Because there are specific statutory excuses that must be raised to defend against negligence per se, and the defendant must be give fair notice so that he can be prepared to argue those excuses. [Because the defendant didn’t object, however, the objection was waived.]


Understand – The facts giving rise to negligence were the same facts giving rise to negligence per se in this case. Thus, the facts alone won’t always be sufficient to give the defendant fair notice!

Front 53

A default judgment will only be deemed erroneous based on a deficient petition if:

Back 53

1. The petition does not attempt to state a cause of action that is within the jurisdiction of
the court;
When would this happen? Ex: ecclesiastical dispute, forcible entry & detainer action in state district court, defamation action in a county court

2. The petition does not give fair notice to the defendant of the claim asserted;
This is what we just talked about.

3. The petition affirmatively discloses the invalidity of such claim.
Ex: Plaintiff pleads himself out of court by stating a jurisdictional amount that is outside the jurisdiction limits of the court.

[Thus, in all cases other than those listed above, the DJ will be good.]

Front 54

What is the function of exhibits to the pleadings with regard to fair notice?

Back 54

When there’s a conflict between the pleadings and the attached exhibits, the exhibits govern. Thus, if an exhibit precludes a cause of action, the pleading will not support a default judgment.

Front 55

What is a general pleading notice rule?

Back 55

Rule: Pleadings will be liberally construed in favor of the pleader. The fair notice rules represent the minimum baseline and won’t be used in a “gotcha” fashion against the pleader. Thus, facts and elements that have been omitted will be read into the petition to the extent possible.

Front 56

PLEADING DAMAGES

What is the procedural difference between special damages and general damages?

Back 56

(3) Special vs. General Dmgs:
(a) General: dmgs that flow naturally and necessarily from the wrong (things every P will plead)
(i) Need not be explicitly pled
(ii) E.g. past pain & suffering from personal injury

(b) Special: dmgs that flow naturally, but not necessarily, from the wrong
(i) Must be pled explicitly
(ii) E.g. past lost wages (not every victim will be employed or employable)

(c) Safest Practice:
(i) Look to case law for what types of dmgs have been permitted for the CoAs asserted
(ii) Request all such types of dmgs expressly

Front 57

What is the substantive difference between special damages and general damages?

Back 57

General damages flow naturally and normally from the injury pleaded. Special damages tend to vary from person to person and don’t normally flow from the injury pleaded.


Examples of special damages in a car accident:
• medical expenses
• loss of earnings
• loss of earning capacity

Example of general damages in a car accident:
• past pain and suffering

Front 58

In Texas, you can’t always be sure whether an element of damages is special or general.
How should you deal with this problem?

Back 58

Rule: In Texas, under fair notice pleading, the plaintiff is not necessarily required to plead his measure of damages. “Measure of damages” means the legally required method to compute damages

Front 59

WHAT IS THE problem with getting form pleadings?

Back 59

You may not have some of the damages in the form. (ex. disfigurement) and you can be impeached on the basis of the pleadings.

Front 60

Do you have to spell out the remedy if they flown naturally from the injury?

Back 60

No. the court and the defendant can figure it out on their own.

Front 61

What if I affirmatively mistate the damages?

Back 61

THis is not fatal. If the court can determine from what is pleaded and proved the mistake is ok.

BUT you will not be saved if the mistake has misled your opponent.

Front 62

EX.

if you plead BOK

Back 62

Then contract damages are general.

they naturally and necessarily flow from the breach.

Front 63

PLEADING OF EQUITABLE REMEDIES

the prayer will set out elements of recovery. Meaning?

Back 63

You wil not get EQ relief unless you specifically plead it.

Rule: You must plead specifically for equitable relief. You won’t get equitable relief if you make a general allegation of damages. [Think about it like special damages]

(2) Must be a specific prayer for equitable relief;
(a) Generally, must assert no adequate remedy at law (and why); and
(b) Indicate the circumstances, and how this is equitable (did π do equity?)

Front 64

Pleading for Declaratory Relief

Purpose of Declaratory Judgments?

Back 64

to prevent the accrual of avoidable damages based on incomplete information – If by not getting a declaration, defendants are going to be required to make a choice that could cause them to incur additional damages, they are allowed to request a declaration.

What are avoidable damages?
ex. atty fees, trial expenses, etc.

Front 65

some statutes have prerequisite damages that need to be plead

Back 65

look to the statute

Front 66

what is the difference between a special denial and a general denial?

Back 66

Be clear that you ahve looked at it.

general denial just says prove it.

something about swearing to facts. get it in writing. affidavit.

Front 67

JURY DEMAND

IN Texas do yo uhave to put your jury demand in the original petition?

Back 67

no, but you should. You should begin to think about it when you file your petition.

Front 68

In Texas, what is required to obtain a jury?

Back 68

ix) Jury Demand

(1) To get jury trial in TX, must:
(a) Pay fee
(b) Make written application (which can be on any filing, or its own filing)
(c) Within a rzbl time b4 trial, but not later than 30 days b4 trial.

(d) BUT: even if you fail, judge still has equitable right to grant jury trial request

Front 69

Special Pleading Requirements

ex. tresspass to try title suit.

Back 69

Trespass to try title suits are different. Look to TRCP 783-809. If the defendant pleads a general denial as opposed to “not guilty,” it will not place the burden on the plaintiff to show superior title!

Front 70

What does a suit on sworn account do?

Back 70

A suit on sworn account is appropriate when there has been an ongoing relationship of charges between parties, and systematic records of those charges have been kept. To file a suit on sworn account, you must include a systematic record of all charges and payments (usually in the form of an invoice).

Front 71

What must the defendant do in response to a suit on sworn account?

Back 71

According to the rule above, he must deny the suit under oath (verified denial).

Front 72

Why would the plaintiff bring a suit on sworn account instead of a plain BOK suit?

Back 72

It requires to the defendant to deny the allegations under oath!! If the defendant fails to do that, the plaintiff gets the equivalent of a default judgment. It’s typically utilized in routine collection matters because it requires the defendant to narrow the scope of proof – i.e., if he says, “I didn’t pay that amount on that date,” that’s all the court has to deal with.

Front 73

FEDERAL COURT PLEADINGS

What must the basic complaint in federal court contain?

Back 73

See FRCP 8 below. Note that the Federal Rules require you to plead jurisdiction. Recall that state courts don’t require this. Clearly, it’s the better practice to plead jurisdiction.

FRCP 8: General Rules of Pleading
(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain
(1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it,
(2) a short and plain statement of the claim showing that the pleader is entitled to relief, and
(3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

Front 74

Under what circumstances must you plead more specifically in federal court?

Back 74

See FRCP 9 below. The most important one – which is different from Texas law – is fraud.

Front 75

What must you specifically plead for a fraud cause of action in federal court?

Back 75

Pleading fraud (of any kind) with particularity in the 5th Circuit requires:
• time of false representations
• place of false representations
• contents of false representations
• who the speaker is
• what the speaker allegedly obtains as a result of his false representations
• why the pleader is claiming that the statements are false representations

Front 76

What about numbering paragraphs in fed?

Back 76

must be done. you wil get bounced.

Front 77

Federal Pleading Jurisdcition

Which party has the burden of pleading jurisdiction?

Back 77

Usually, the plaintiff bears the burden. However, the defendant might bear the burden if we’re in a removal situation. So the general rule is that the party seeking to invoke jurisdiction bears the burden of pleading on the issue.

Front 78

If there is a pleading failure with regard to jurisdiction, what can the court do?

Back 78

Court said: Facts alleging only one of two possible states of defendant’s corporate citizenship are insufficient to establish diversity jurisdiction. This plaintiff only dealt with the state of incorporation – he didn’t deal with the principal place of business!

In this case, the plaintiff asked for a chance to amend. Court responded: We already have information that shows jurisdiction doesn’t exist. Amendment is not proper.

You’ll see pleadings that contain conclusory statements regarding jurisdiction (as in this case, where they just cite to the statute). Problem with doing that: You open yourself up to attack! Thus, you should allege your grounds for jurisdiction, not just the pertinent statute.


Point: Always allege your grounds for jurisdiction, not just the pertinent statute or a conclusory statement.

Front 79

FEDERAL PLEADING VENUE

What’s the effect of pleading venue facts?

Back 79

When the plaintiff pleads venue facts, the court will accept the venue facts as true unless they’re controverted by the defendant.

Front 80

What happens once defendant challenges venue facts and plaintiff files supporting affidavits?

Back 80

If it’s clearly a swearing match between parties, the presumption is in favor of the plaintiff.

Front 81

In federal court, is venue good as to one defendant alleged, wheat effect does that have on other defendants?

Back 81

General rule: For multiple claims or defendants, plaintiff bears the burden of proving venue for every single claim or defendant.

Front 82

Federal venue scheme

Back 82

(a)(1): A corporation is deemed to reside in any state in which it is subject to PJ (minimum contacts)

(a)(2): Venue under (a)(2) must be established as to each claim and each defendant. Don’t get hung up on the word “transactional.” The language of the statute is “where a substantial part of the events or omissions giving rise to the claim occurred.”

(a)(3): This is the escape hatch. If you can’t meet (a)(1) or (a)(2), you can use (a)(3)

Front 83

Jacobsen v. Osborne
Arrestee brought a §1983 action against a named police officer and an unnamed deputy identified as “John Doe” claiming false arrest. After the SOL expired, the arrestee moved to amend and add as defendants the actual arresting officers and deputies, whose identities he had learned through discovery.

Back 83

Osborne: Not the correct defendant – He didn’t arrest the plaintiff; he was just the transporting officer. The court allowed joinder of the proper officers to relate back. Why? Because the City Attorney, who originally represented Osborne, would necessarily represent the newly-named officers. Notice was established

John Doe: Naming “John Doe” was not necessitated by mistake or misidentification at which FRCP 15(c) is aimed. Thus, relation back does not apply


So long as I name the wrong party who has a close relationship with the right party, relation back under TRCP 15(c) applies. However, if I don’t know who the party is and name John Doe, I’m out of luck. [Wren says this is an anomalous result, but it’s the rule in the 5th Circuit.]

Lesson: Sue as close to the correct defendant as you can get.

Front 84

How is this different than in TExas

Back 84

becasue in Texas, you need a business relationship for equitable tolling in a misidentification situation.

Front 85

Assumed name rule in fed court

Back 85

(3) NO Assumed Name Rule: (But we can generally get to the same result)
(a) FRCP 15(c) allows for substitution of parties, and relation-back!
(b) If certain criteria are met, the amendment relates back to date of filing.
(i) Within the time specified for service under Rule 4(m),
(ii) Δ must receive notice that
(iii) Absent mistake, they’d be the one sued
(iv) And the amendment would not subject them to unfair surprise or prejudice

(c) Applies regardless of whether mistaken filing was misnomer or misidentification
(i) BUT: Only applies when there is mistake, if you just don’t know the name of the person you want to sue, it won’t work.
(ii) Thus, no using “John Doe” placeholders and amending when you learn their identity
(iii) So, if you suspect you know, consider naming and maybe amend after discovery

(4) Sue People in the Correct Capacity, and be clear:
(a) Be specific with the pleadings and capacity of Δ.
(b) “Jacob Straub, Commissioner” is ambiguous
(c) “Jacob Straub, Individually” is sufficiently specific for individual capacity
(d) “Jacob Straub, in his official capacity as Commissioner of Police”, also specific

Front 86

FEDERAL PLEADING COAs

what is requiredin Fed Court?

Back 86

(1) Unless particularity required, just need “short and plain statement of the claim showing the pleader is entitled to relief” – this is the same “fair notice” standard of Texas Courts
(a) You need not set forth a full prima facie case in the pleadings

Front 87

Twombly

what is the lesson from twombly?

Back 87

This is a two-step process
(1) Is the pleaded item conclusory or factual?
*A factual statement will be accepted as true; a conclusory statement will not
o A factual statement is one which provides who, what, when, where, etc.
o A conclusory statement simply states a conclusion—e.g. you engaged in a conspiracy
 Erickson –
o ―I will die‖ – this is a conclusory statement
o ―I will die if you don’t do X, Y, & Z, and other prisoners have already died from the same—this is a factual statement, which court concluded was suggestive

(2) Are the pleaded facts inferentially neutral or inferentially suggestive?
* In order to state a claim the pleaded facts must be suggestive to create a plausible claim to relief

Front 88

What is the difference for legal and factual allegations?

Back 88

Lawyers are on the hook for legal & factual allegations. Clients are on the hook for factual allegations.


Snapshot Test: Rule 11 liability is assessed only for a violation existing at the moment of filing

Front 89

What is required of the lawyer?

Back 89

a reasonable investigation

If it turns out that you’ve made a reasonable investigation, but subsequent events change the facts, you’re ok!

Front 90

What should the defendant do in federal court in order to get more specific information regarding damages from the plaintiff?

Back 90

File a motion for a more definite statement. (In Texas state court, you would file a special exception).

Note: You should always plead with more particularity than this! But still know the rule.

Front 91

(2) FRCP 9(b)

Back 91

pleadings of fraud or mistake must be stated with particularity.
What is the actual statement constituting fraud?
 What was its context?
 When was it made?
 Who said it?
 Why was it said?
 What benefit was the defendant seeking to obtain as a result?


(b) What about omissions? SAME
(i) Who failed to make the statement?
(ii) When should it have been made?
(iii) Why was the omission fraudulent? (Source of duty and how it was misleading)
(iv) Etc.

(3) FRCP 9(f) – must allege time/place of events for any pleading to be sufficient.

Front 92

Ichball

Back 92

court said a lot of that shit was conclusory. look this up if it seems important.

Front 93

In some cases whta must be done with the pleadings?

Back 93

Some COAs require heightned pleading requirements.for example FRCP 9b in the case of fraud.

Front 94

What happens if you fail to com;y wi pleadins or required diligence?

Back 94

You may be sanctioned under FRCP 11

(4) Rule 11 Sanctions:
(a) More frequent than Rule 13 sanctions in TX
(b) All conduct specified in rule is sanctionable against the Att’y
(c) But unjustified/groundless legal assertions are not sanctionable against the client
(i) (we can expect the client to correct groundless factual allegations, but not legal)

Front 95

Who gets sanctioned under rule 11?

Back 95

If the pleadings are factually fivilous, both the attorny and the client get sanctioned

If the pleadings are legally frivilous the atty is on the hook.

Front 96

Are you required to say that the facts are true?

Back 96

You are entiteld to plead based on information and belief but you have to have good faith basis for the factual allegations.

BUT the qustion becomes does it cross the line from conclusory to factual?

Front 97

What is the shapshot test

Back 97

• Thomas “Snapshot Test”: in considering the nature and severity of the sanction to be imposed under Rule 11, the court should consider the state of mind of the atty when the pleading or other paper was signed

Q is was it reasonable at the time

Front 98

PLEADING DAMAGES AND REMEDIES

With what specificity must damages be pled?

Back 98

(1) Must include a demand for all relief sought
(2) Can demand different types of relief, together or in the alternative
(a) Alternative demands can even be inconsistent – but don’t do that b4 a jury

(3) With each claim, state what type of dmgs are sought; then sum it up in the prayer

(4) FRCP 9(g) – must specifically plead all items of “special dmgs”
(a) As in State ct, safest just to specifically plead all types of dmgs, general or special

(5) If you plead the wrong measure of dmgs:
(a) Default Judgment: recovery is limited to what you requested
(b) Ordinary Judgment: you are not limited to what you pled
(i) The measure is a question of law – if you got it wrong, ct should get it right
(ii) You’ll get what you deserve, no matter what you pled
(iii) UNLESS to do so would be prejudicial

Front 99

Pleading for Declaratory Relief in Fed Court

Back 99

in deciding whether to decide or dismiss a fed declaratory judgemnt suit, the court determines
1. whether the the action is justiciable
2. ehtehr the court has the authority to grant dec relief and
3. Whether to exercise its discretion to decide or dimsiss

in deciding 3 it will use its discretion to decide is there a justification for the would be defendant to jump to the front of the line and prick the forum?

Are you picking the venue soley to gain a tactical advantage?
-=-in sherwin the reason was that they were going to be sued allover the state and it may result in conflicitng judgemnents. Efficiency weighed in favor of keeping the suit. Sherwin was not simply forum shopping

Front 100

Pleading damages in Fed Court

How specifically must you plead special damages in federal court?

Back 100

A party is NOT required to plead a specific measure of damages

bust you must plead general and special damages

Front 101

What should the defendant do in federal court in order to get more specific information regarding damages from the plaintiff?

Back 101

File a motion for a more definite statement. (In Texas state court, you would file a special exception).

Front 102

FEDERAL DISCLOSURE STATEMENT

When does it come into play?

Back 102

When you are requesting a jury

FRCP 7.1: Disclosure Statement
(a) Who Must File: Nongovernmental Corporate Party. A nongovernmental corporate party to an action or proceeding in a district court must file two copies of a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that there is no such corporation.

(b) Time for Filing; Supplemental Filing. A party must:
(1) file the Rule 7.1(a) statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court, and
(2) promptly file a supplemental statement upon any change in the information that the statement requires.

Even if you don’t meet these requirements, you must file a disclosure statement affirmatively saying that you don’t! Know this if you’re representing a corporation.

Front 103

Requsting a Jury in Fed Courts

How do you demand a jury in fed courts?

Back 103

viii) Requesting a Jury
(1) Serve other party w/ a written demand,
(2) No later than 14 days after the last pleading directed to the issue
(3) AND file the demand w the court

(4) FRCP 39(b) – if no demand, you get a bench trial;
(a) BUT if a party demands late, the court has discretion to allow jury trial
(b) Judge must grant late jury demand where the non-requesting party was at least partially responsible for the request being untimely.
(c) “In the absence of a strong and compelling reason to the contrary,” the judge should grant a 39(b) late motion for jury trial.