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386 Cards in this Set
- Front
- Back
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What Is Civil Procedure?
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• Civil justice system (not criminal.). Private parties involved (generally not government though gov can act as a civil defendant).
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Civil vs. Criminal
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Players
Remedies |
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Federal vs. State systems
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Federal courts’ limited jurisdiction
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Rewards-
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money damages, injunctions (primary 2).
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•Procedure-
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about how the decision is made.
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•Substance-
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about what the decision should be.
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•We will talk mostly about
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federal procedure.
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•Federal courts of
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limited jurisdiction (state is general jurisdiction).
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U.S. Const., Art. III, Sec. 1
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The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish …”
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•US Const. Art 3.
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Empowers congress to set up inferior courts.
o Supreme-circuit-district courts. (uscourts.gov lays out courts). |
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Illinois State Court System
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Mostly) Parallel Federal and State Court Systems
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The Concept of “Jurisdiction”
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Personal jurisdiction
Subject matter jurisdiction |
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Personal jurisdiction
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is about a court’s ability to issue a decision that binds a particular individual and is a matter of due process under the 5th and 14th Amendments to the Constitution
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Subject matter jurisdiction
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relates to limited power of federal courts. They were created to decide only certain kinds of disputes
Courts of general vs. limited jurisdiction |
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•Personal jurisdiction-
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courts power over a party.
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•Subject matter jurisdiction-
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courts authority over a specific issue. Applies primarily to fed courts. Ie limited jurisdiction.
oArising under jurisdiction, oDiversity jurisdiction; between citizens of different states. |
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oDiversity jurisdiction;
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between citizens of different states.
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U.S. Const., Art. III, Sec. 2
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The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority… to Controversies to which the United States shall be a Party - to Controversies between two or more states - between a State and Citizens of another State; between Citizens of different States …and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
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Where Do Rules of Civil Procedure Come From?
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The Federal Rule of Civil Procedure (FRCP)
What are they? Statutes Constitution Cases Role of precedent Types of Cases |
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•Rules of civil procedure come from;
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oFederal Rules of Civil Procedure.
Statutes oCases (common law) oConstitution |
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oRules of civil procedure come from;Federal Rules of Civil Procedure
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“rules enabling act” authorizes how.
•Committee is established •Written by supreme court •Sent to congress if don’t act becomes policy. |
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Rules of civil procedure come from;o Cases (common law)
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Through precedent.
Types of cases. Difference in president between district and Supreme Court. Courts are bound by the next higher court. Careful that if it was a statute that was interpreted that was changed by the legislature afterwards. |
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Why Have Rules of Procedure?
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1:Accuracy
2:Values:Participation, Fairness, Legitimacy 3:Costs: 4:Rules vs. Standards |
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Why have rules of procedure?
Fairness, |
due process. Decision is not judge dependent. You have a means to complain. The rules are somewhat flexible. They enhance accuracy (not guarantee).
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Why have rules of procedure?
value |
o Another purpose of the rule is value- even those who lose who sense it was fair are okay with the outcome.
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Why have rules of procedure?
Costs- |
collective vs individual
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Why have rules of procedure?
Rules vs. standards |
Rules are more expensive but give you more specific, understandable rule to rely on.
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State courts are courts of
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general jurisdiction
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•All state APP cts have
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general jurisdiction as well.
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The Adversarial System
What does it mean |
our system is called an “adversarial system?”
As compared to what? to inquisitorial system |
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What are the pros of such a system?
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Participation values/due process
Accuracy? |
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What are the cons?
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1.Participation over accuracy? Financial limitations to one party.
2.Potential inefficiencies;you have to initiate motions for example. Based on your lawyers ability 3.Potential for disparate results |
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Stages of Civil Litigation
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Before filing
Pleading Discovery Summary Judgment Trial & Post-Trial Motions Appeal Res Judicata |
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Before filing
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Investigation/research
Alternate dispute resolution |
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Pleading
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Complaint
Pre-Answer motions Answer/Reply Joinder of additional parties |
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Discovery
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Mandatory Disclosures
Depositions Interrogatories Document requests Requests for admission |
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Summary Judgment
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Disposing of cases on legal grounds
Standard: no genuine issue of material fact |
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Trial & Post-Trial Motions
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Judge vs. Jury
Burden of persuasion (burden of production) Judgment as a matter of law (directed verdict) Renewed motion for judgment as a matter of law (JNOV) New trial |
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Appeal
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Final judgments
Interlocutory |
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oIn fed court now you have to
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turn over certain documents and lists of witnesses. Ie Mandatory disclosure.
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oJudge vs. Jury;
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Sometimes you have a right to a jury and sometimes you don’t.
Burden of persuasion is on the plaintiff but not beyond a reasonable doubt. “It’s more likely than not” . |
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Remedies
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Declarative
Specific Compensatory |
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Declarative
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Asking court to determine parties rights and obligations before conflict
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Specific
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Orders directing conduct (injunctions and orders of specific performance)
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Four Functions of Pleading
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1.Give Defendant Notice
2.Identify Baseless Claims Legally Baseless Factually Baseless 3Set Each Party’s View of Facts 4.Narrow Issues to those truly in controversy |
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Writ
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was analogous to summons today. Writ confined to “form of action” There was a different one depending on the complaint. What are you complaining about. each had their own substantive rules (like now) and procedural rules (unlike now). If you make a mistake, you lose (very tough system). Many people lost on technicalities.
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Declaration
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was rough equivalent of complaint
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Demurrer –
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it’s true but legally insufficient
Demurrer was originally dispositive yeh the facts are true but they don’t have a claim. So what! |
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Dilatory Pleas –
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attacking procedural defects, jurisdiction, etc.
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Traverse -
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denial
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Confession and avoidance –
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affirmative defenses:it happened but there’s a good reason.
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Duplicity and departure prohibited (variances)
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meaning if you pled something you could not change. If you pled something and it turned out not to be true then you lost.
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Searching the record
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: Court looks through all documents submitted to look for claim.
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Court of Equity
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created to deal with problems not covered in the other court of law. Dealt with actions not seizing property or money. Was highly discretionary. No right to trial by jury in court of equity. It allowed joinder more easily.
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Court of Equity
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For cases where there was “no adequate remedy at law”
Remedy in the form of injunctions as opposed to seizing property Highly discretionary No right to trial by jury |
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Court of Equity
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Precursor to modern discovery, but no live witnesses at trial
Joined all persons whose interests might be affected by judgment |
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Code Pleading
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1 Abolished the forms of action and distinction between law and equity
2 Limited pleadings 3 Limited effects of pleading errors 4 Pleading “facts constituting the cause of action” Ultimate facts/elements Facts vs. conclusions vs. evidence |
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FRCP 8(a)
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A pleading … shall contain …
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A pleading … shall contain …
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1 Short and plain statement of the grounds upon which the court’s jurisdiction depends
2 Short and plain statement of the claim showing that the pleader is entitled to relief 3 Demand for judgment for the relief the pleader seeks |
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What kind of relief can be demanded in a pleading?
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Relief in the alternative or of several different types may be demanded
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Claims vs. Causes of Action
Causes of Action |
To plead a “cause of action” requires pleading of each of the underlying elements that authorize the requested relief (duty, breach, proximate cause, injury, damages) – Code pleading systems
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Claims vs. Causes of Action
Claims |
Pleading a “claim” requires only that you use the word “negligence” (or equivalent) and give some notion of factual context and alleged injuries – FRCP
See note 10, p. 359 |
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Alternative Procedural Systems
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1 17th Century England
2 19th Century United States 3 Modern Procedure |
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17th Century England
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Pleading Phase is Center of Gravity
Many Valid Claims Don’t Go to Trial |
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19th Century United States
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Trial is Center of Gravity
Many Bogus Claims Do Go to Trial |
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Modern Procedure
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Discovery is Center of Gravity
Bogus claims last beyond pleading, but may not make it to trial |
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Pleading Standards Under Rule 8: A complaint should not be dismissed for...
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A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief
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Pleading Standards Under Rule 8: Notice pleading does not require a claimant to set out....
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Notice pleading does not require a claimant to set out in detail the facts upon which he bases his claim, but only requires enough to give fair notice to the defendant
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why the leaniancy on pleadings?
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As the plaintiff you don’t have all the information just generally what happened. Alot of the info might be in the defendant’s hands. This allows you the opportunity to aqcuire and use it.
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The point of pleading is
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to satisfy legal sufficiency. Factual sufficiency comes later.
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Conley v. gibson.
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•The legally recognized claim is that they violated the railway labor act which prohibits discrimination. Claim: violated RLA by failing in duty to represent.
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Notice pleading: standard.
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conley v gibson
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Rule 12 lists
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circumstances of grounds to dismiss a claim. Correllate to what has to be done in rule 8.
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Dartmouth College
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• allegation of racial discrimination
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Is this a case about factual sufficiency or legal sufficiency? What is the difference?
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olegal claim: fed statute’s prohibition. Statute doesn’t prohibit all discrimination. They treated you differently because they thought you were racists.
ofactual claim: school treated them unfairly based on generality, Court claims insufficiency for each material element of the law. The standard is higher for racial discrimination (rule 9 doesn’t allow this). Court is raising standard on own. |
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The court says that a complaint must contain
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“factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable legal theory.”
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Why didn’t the court allow the plaintiff to amend?
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o Do not allow them to amend which is unusual. Usually you get to but you have to ask at the trial court level.
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Langadinos v. American Airlines
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Legal claim: Warsaw convention, can’t add to an accident for a clear foreseeable risk
Factual claim: continued to serve alcohol and resulted in grabbing his crotch. On “information and belief”. Means you have a reasonable basis to make conclusion but you recognize you can’t know what’s in the mind of the stewardess and other AA employees involved. |
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Pleading Issues: rule 8(e)(2): Alternate and ...
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Alternate and inconsistent allegations are okay
Rule 8(e)(2) |
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Pleading Issues: rule 8: can plead on ...
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Can plead “on information and belief”
See Langadinos |
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Pleading Issues: no magic ...
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No magic words required, but need to be careful with jurisdiction
Residence doesn’t mean citizenship |
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Rule 8e2: alternative and inconsistent allegations are okay
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You don’t know if it was person A or B. This was not okay in the old law.
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Four Functions of Pleading
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1 Give Defendant Notice
2Identify Baseless Claims 3Set Each Party’s View of Facts 4Narrow Issues |
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Give Defendant Notice
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Complaint
Motion for more definite statement |
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Identify Baseless Claims
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Legally Baseless: 12(b)(6)
Factually Baseless: Summary Judgment Rule 11 addresses both |
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Set Each Party’s View of Facts
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Pleading
Discovery |
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Narrow Issues
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12(b)(6)
Discovery Summary Judgment |
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Why would interim injunctive relief be necessary?
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Risk of irreparable harm
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TRO under Rule 65 –
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risk of immediate and irreparable harm before adverse party can be heard in opposition
Limited to 10 days by default Bond requirement Adverse party may move to dissolve on 2 days notice or less |
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Preliminary injunction
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required to prevent irreparable harm prior to final disposition of the litigation
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Provisional remedies:
IIR: not always granted because |
it imposes a burden on the defendant which could be irreparable harm. This is why it’s exceptional.
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Preliminary Injunctions
A party seeking a preliminary injunction must demonstrate: |
Case has “some” likelihood of success on the merits;
No adequate remedy at law exists; It will suffer irreparable harm if the injunction is not granted |
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If satisfied that these conditions met, then must consider
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The harm to the nonmoving party if preliminary relief is granted; balanced against
Harm to the moving party if relief is denied Public interest |
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Posner PI Formula
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P x Hp > (1-P) x Hd
P = plaintiff’s likelihood of success on the merits Hp = harm to the plaintiff if injunction erroneously denied Hd = harm to the defendant if injunction erroneously entered |
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Permanent Injunctions and Declaratory Judgment:
Permanent injunctions |
Plaintiff must show money damages inadequate (“no adequate remedy at law”)
Compare to “irreparable harm” requirement Enforced through contempt proceedings |
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Declaratory judgment
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Seeking a declaration of the rights and responsibilities of the parties
Seeking clarity before suffering injury or before the claim arises in the ordinary course Often coupled with requests for injunctive relief |
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12(b)(1)-(5): Motions challenging whether case brought ....
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Motions challenging whether case brought in the proper court or defendant properly brought before the court – Rule
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Rule 12(b)(6): Motion to dismiss for failure to ...
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Motion to dismiss for failure to state a claim upon which relief may be granted –
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Rule 12(b)(6): Court may not go ...
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Court may not go “outside the pleadings”
Court must construe all well-pleaded facts in the light most favorable to plaintiff No dismissal unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief (Conley) |
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Rule 12(e): Motion for more definite ...
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Motion for more definite statement –Complaint is vague; defendant unable to frame a response
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Rule 12(f): motion to ....
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Motion to strike – Insufficient defense or redundant, immaterial, impertinent, or scandalous matter
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Timing of Rule 12 Motions:
Rule 12(g): can consoldidate ... |
Can consolidate objections in one motion under Rule 12(g)
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12(h): most objections not raised ...
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Most objections not raised in a motion under 12(b) or 12(g) or in a responsive pleading are waived under 12(h) (“either or but first”):Subject matter jurisdiction
Judgment on the pleadings |
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Contempt proceedings; are for punishing what?
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when you don’t do what you are supposed to.
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Declaratory judgment: is about what?
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court decides, though nothing has happened yet, what the rights and responsibilities of the parties are. In the adoption case to say whether or not law to be will violate rights. Used sometimes when party is threatening to sue and you want the court to say if you do you will lose.
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Rule 12 motions:
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Answer: mirror in # paragraphs responding to each allegation ie admit or deny.
File a motion: rule 12b 1-5 |
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Service of process motions
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are regarding the telling of the defendant: 12b 4 & 5, insufficiency of process (?) and insufficiency of service of process (the way you get served).
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Court may not go outside the pleadings: T/F
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True
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Rule 12e,: motion for more definite ...
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motion for more definite statement, not used very often.
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Rule 12f,: put in courts not relevant just to ...
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put in courts not relevant just to embarrass other party. Something that doesn’t belong and you want it removed.
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rule 12 motions: These are motions that don't ...
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These are motions that don’t decide whose wrong or right but to identify if case belongs in that specific court or whether its sufficient for a claim in the first place.
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Timing of rule 12 motions:
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20 days to file an answer or motion unless you waive service.
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Rule 12g.: you can object to...
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You can object to many things in a motion.
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Rule 12h: you have other opportunities...
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you have other opportunities to object.
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Whatever you do, do it in the first one (ie motion or anwser). refers to what rule?
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Most objections not raised in a motion are waived.
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Exceptions: of items that can't be waived?
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1 subject matter jurisdiction
2 Judgment on the pleadings. (12h, after your answer, same standard as motion to dismiss, done when it’s not clear based on complaint that case should be dismissed, requires information provided in answer) |
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What motions would be made under 12b as opposed to 12g?
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12g is for multiple motions. 12b would only include one objection.
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1b:
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no, can if answer is first pleading, goes to 1st attempt. If he does, the plaintiff can move to strike (though doesn’t have to. It will go away anyway) prevents other party from using it in discovery. 12f.
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1c:
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12h2, a failure to state a claim is waived but not motion for judgment on the pleadings. So No, must answer first then, can do a judgment on the pleadings.
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2a:
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12h1, must be in the first answer or motion. It’s waived. Should have put it in answer.
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2b:
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(where he put PF on slide it should be PJ). Only by the leave of the court after 20 days. IF you file response quickly then plaintiff has to ask permission from court.
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2c:
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no. point is so vague I can’t respond. But she already answered.
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2d:
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yes, this under 12a is not waived (along with failure to state a claim).
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How do you get a court to respond during pleadings?
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Court doesn’t care what’s in the answer or complaint, you have to make a motion to get them to respond.
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2e:
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yes, can do it anytime. 12h3. The court can do it on it’s own.
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An answer must have
rule 7a, 8b,c,d |
a. admissions and denials
b. affirmative defences (8c) c. counterclaims |
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can you plead motion after motion?
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no, must plead motions together unless it doesn't make sense, exp. a motion on failure to state a claim would not require defense claims.
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Motions under Rule 12 and 7c
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1) wrong court
2)allegations do not equal a legal right to recover 3)allegations not true 4)not the whole story 5)missing a party 6)response not possible 7)claim against plaintiff |
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motion of wrong court
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1. subject matter jurisdiction
2. personal jurisdiction 3. improper venue 4. wrong service of process (12b1-15) |
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motion saying allegations to not equal a legal right to recover
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12b6
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motion stating allegations are not true.
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a denial. also a variation where you don't know if true rule 8b
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motion of not whole story
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other matters not alleged that defeat claim.
1. statute of limitations 2. statute of fraud applies rule 13 3. has been accord or satisfaction 4. affirmative defenses rule 8c |
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motion of missing party
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also must sue other party or not suit. rule 12b7, 19
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motion of response not possible
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complaint to indicipherable
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motion of complaint against plaintiff
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counterclaim rule 13
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Fraud rule
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rule 9b
"all avertments of fraud or mistake shall be stated with particularity." |
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types of provisional remedies
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1. interim injunctive relief
2. peranent injunctive relief |
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What is interim injunctive relief
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To prevent an imminent threat of harm to prevent on going harm that may be irreparable.
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types of interim injunctive relief
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1. Temporary Restraining Order
2. Preliminary injunction |
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TRO components
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1. ex parte
2. immediate 3. often with filing of a complaint 4. pending prel. inj. 5. FRCP 65 "immed & irrep injury" "loss or damage" 6. typically 10 days 7. Court decision not appealable 8. other party can move to dissolve |
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PI components
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1)early in litigation
2)req notice to opp. party & hearing. 3)pending resolution of trial 4)argue that benefits of relief should be enjoyed by mover through duration of trial. |
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consideration in granting PI
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A)likelyhood of P success in trial. Risks of harm to party's/others. Remedies at law are inadequate.
B)irreparable harm is imminent. C) sliding scale approach A to B. |
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permanent injunctive relief
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Prevent a Dfrom doing something or to compel them to do something
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permanent injunctive relief
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1. more unusual than monetary damage award.
2.typically to avoid irreparable harm where damages would not fully compensate. |
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permanent injunctive relief burden
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to show that the damages are not sufficient not that irreparable harm will result-as in int. inj. relief.
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enforcement of injunctions
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1. sanctions of contempt
2.criminal contempt punishment 3.civil |
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sanctions of contempt
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jail or monetary payment
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criminal contempt punishment
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1.to punish for disobeying
2.to remedy insult to courts authority 3.is backward looking 4.burden of proof on claimant |
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civil contempt punishment
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1.to aid P
2. to bring D into future compliance. 3.more forward looking 4.on going fine or indefinate jail time until compliance (clinton deal) |
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declatory judgments
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declares rights.
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Without info stuff to form a belief.
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Other parties may have info. You answer as to what you know at a particular time and you have to go back and change it when you do know.
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Affirmative defense: essentially say ...
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yes but..... (as opposed to a denial).
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Rule 8c:not denying factual allegation but ...
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not denying factual allegations but there are other things you want to know that change
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La Font case p 387.
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If you wanted to say this was a gift then you should have made it an affirmative defense. Any other matter refers to existing statutes.
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La Font case p 387.
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Under utah law, it’s a defense if the money is a gift. But has to depend on facts that the P would know, so here it was ruled that it was not an affirmative defense. So D can raise it whenever they want.
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Gomez,p. 390
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cop fired, deprived of due process. Did not get an investigation. Must claim facts that show bad faith by the department.
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Should he have to say bad faith is an affirmative defense.
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P really can’t know what is going on in the defenses knowledge. This is a good example of a yes but...
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traditional discussions regaing the allocation of the burdens of peading describe three critical factors:A) fairness, in terms of ...
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a) fairness, in terms of who has easier access to information and the ability to raise the issue.
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B) policy, in terms of ...
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b) policy, in terms of whether the particular claim should be encouraged or discouraged.
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C) probabilities, in terms of ...
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c) probabilities, in terms of which party's situation is more likely to be the norm (with th eparty whose situation deviates from it having to allege the matter).
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Counterclaims:
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asserting your own claim against the P. Rule 13.
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Must you? why not in a separate law suit?
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Yes!, Closely related to P claim. If it’s cumpulsory then has to raise it as counter claim or you don’t get to. If it’s permissive, you can bring it as a counter claim but you don’t have to. Permissive v. cumpulsory.
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Rule 3: A civil action is ...
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A civil action is commenced by filing a complaint with the court
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Rule 7: Pleadings allowed or ...
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Pleadings allowed; form of motions
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Rule 7a is about what?
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Pleadings
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Pleadings
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*there will be a complaint and answer.
*a reply to a counterclaim *An answer to a cross-claim *A 3rd party complaint and answer. *court may order a reply to an answer or a 3rd party answer. *no other pleadings are allowed. |
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Rule 7b is about what?
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Motions and other papers
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Motions and other papers
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*applications to court for an order will by done by a motion.
*In writing unless at hearing or during trial. *shall state the grounds with particularity. *Say relief or order sought. * |
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Rule 7c is about what?
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Demurrers, Pleas,etc., Abolished
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Rule 8 is about what?
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general rules of pleadings.
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Rule 8a is about what?
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claim for relief
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claim for releif
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1. short and plain statement of the grounds of jurisdiction to support it.
2. "of the claim showing that the pleader is entitled to relief. 3. demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. |
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Rule 8b is about what?
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Defenses; Form of denials
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Defenses; form of denials
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*state defenses to ea claim in short and plain terms.
*admit or deny advertments. *if don't know can say "w/o knowledge or info sufficient. *denials will fairly meet the substance of avertments. *Can deny in part but must specifiy. *Can deny specific claims or group of claims |
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Rule 8c is about what?
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Affirmative Defenses
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affirmative defenses
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*accord & satisfaction; arbitration and award; assumption of risk; contributory neglagence; discharge in bankruptcy, duress, estoppel, failur of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations; waiver, and any other matter constituting an avoidance or affirmative defense. If you give the wrong defense by mistake the court will treat it as if it where done correctly.
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Rule 8d is about what?
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Effect of failure to deny
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effect of failure to deny
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*if you fail to deny something that requires a response then=admittance, if doesn't req response but don't deny=taken as a denied or avoided. doesn't count for damage amount.
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Rule 8e: pleading to be ...
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Pleading to be conscise and direct; consistency.
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Pleading to be conscise and direct; consistency.
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1. shall be simple, consice, and direct.
2. can say as many statements of claim or defense alternatively or hypothetically. statements do not have to be consistent. |
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Rule 8f is about what?
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construction of pleadings
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construction of pleadings
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all pleadings will meet substantial justice.
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Rule 9 is about what?
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Pleading special matters
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Rule 9a is about what?
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Capacity
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capacity: it is not necessary to...
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* it is not necessary to show the capacity of a party just the jurisdiction of the court.
*issues of capacity are done by specific negative averment and must include in particularity you know of. |
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averments are what?
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a positive declaration or affirmation of fact.
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9b is about what?
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fraud, mistake, condition of the mind.
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fraud, mistake, condition of the mind. Shall be ...
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averments of fraud or mistake shall be stated with particularity. Any guilty mental state may be averd generally.
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9c is about what?
|
conditions precedent
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conditions precedent
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can aver generally that they have occured but a denial must be in particularity
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9d is about what?
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official document or act
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official document or act
________________________ |
sufficient to say document or act was in compliance with law.
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Rule 12 Motions challenging whether case ...
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Motions challenging whether case brought in the proper court or defendant properly brought before the court – Rule 12(b)(1)-(5)
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Motion to dismiss for failure to state a claim upon which relief may be granted – Rule 12(b)(6)
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Court may not go “outside the pleadings”
Court must construe all well-pleaded facts in the light most favorable to plaintiff No dismissal unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief (Conley) |
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Motion for more definite statement – Rule 12(e)
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Complaint is vague; defendant unable to frame a response
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Motion to strike – Rule 12(f)
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Insufficient defense or redundant, immaterial, impertinent, or scandalous matter
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Rule 12 Motions: it must be assumed that the plaintiff...
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It must be assumed that the plaintiff would be able to prove all the facts it alleges, even if it appears unlikely. Defendant must concede those facts for purposes of the motion
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Timing of Rule 12 Motions: can consolidate ....
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Can consolidate objections in one motion under Rule 12(g)
Most objections not raised in a motion under 12(b) or 12(g) or in a responsive pleading are waived under 12(h) (“either or but first”) |
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Most objections not raised in a motion under 12(b) or 12(g) or in a responsive pleading are waived under 12(h) (“either or but first”)
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What motions would be made under 12(b) as opposed to 12(g)?
Subject matter jurisdiction cannot be waived Judgment on the pleadings vs. failure to state a claim for which relief can be granted |
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Paul v. Drake
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P sues D for injuries arising from an accident. D moves to dismiss for improper service of process and the motion is denied.
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P sues D for injuries arising from an accident. D moves to dismiss for improper service of process and the motion is denied.
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Can D now move to dismiss for lack of PJ?
Can D include the defense of lack of PJ in his answer? Dan D now move to dismiss for failure to state a claim upon which relief can be granted? Can D include the defense of failure to state a claim upon which relief can be granted in his answer? |
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Paula v. Daisy
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P sues D for injuries arising from an accident. Daisy files an answer which denies various allegations in the complaint [and does nothing else].
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P sues D for injuries arising from an accident. Daisy files an answer which denies various allegations in the complaint [and does nothing else].
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Can D now move to dismiss for lack of PJ?
If not, can D amend her answer to allege lack of PF, assuming it is 40 days after her answer was served? Can D make a motion under Rule 12(e) for a more definite statement? Can D make a motion for judgment on the pleadings on the ground that P improperly failed to join T as required by Rule 19? Can D make a motion to dismiss for lack of SMJ? |
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Answer
Shall admit or deny the averments Denials shall fairly meet the substance of the averments denied Unless the pleader intends in good faith to controvert all the averments of the pleading, the pleader may make denials as specific denials of of designated averments or paragraphs, or may generally deny all averments except those expressly admitted Denials subject to Rule 11(b)(4) Without knowledge or information sufficient to form a belief as to truth |
Denials shall fairly meet the substance of the averments denied
Unless the pleader intends in good faith to controvert all the averments of the pleading, the pleader may make denials as specific denials of of designated averments or paragraphs, or may generally deny all averments except those expressly admitted Denials subject to Rule 11(b)(4) |
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Answer part 2
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Without knowledge or information sufficient to form a belief as to truth
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Recall that many of the things mentioned as possible motions (personal jurisdiction, subject matter jurisdiction, venue, etc.) can simply be included in the answer rather than filing a motion. What is the difference?
|
General denials, which are still allowed in some states, allow the defendant to simply deny everything and force the plaintiff to “prove it”
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Recall that many of the things mentioned as possible motions (personal jurisdiction, subject matter jurisdiction, venue, etc.) can simply be included in the answer rather than filing a motion. What is the difference?
|
Federal rules don’t typically allow general denials, subject to possible sanctions
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Sanctions based on what?
|
Look closely at Rule 11(b)(4) and read in connection with Rule 8(b)
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What do you actually have to do in the answer? What are the advantages, disadvantages of requiring this kind of response?
|
Certainly can help narrow issues.
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As a plaintiff, is there any tactical decision you would make based on these requirements?
|
Might plead short, specific paragraphs with more detail to get admissions
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Why have general denials?
|
Short time to respond, availability of discovery.
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Why does a defendant want a general denial?
|
One, don’t want to give away information, but two, also don’t want to get tied down as to what you will have to show because of general denial
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Affirmative Defenses
|
Rule 8(c) lists 19 defenses that must be set forth affirmatively, plus “any other matter constituting an avoidance or affirmative defense”
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How do you know if constitutes an avoidance or affirmative defense?
|
Is it an element of the claim?
Does it introduce new facts or simply deny/rebut plaintiff’s allegations? Does it depend on facts peculiarly in the defendant’s knowledge? |
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LaFont v. Decker-Angel
Gomez v. Toledo - Court reverses a |
12(b)(6) dismissal of a 1983 action (entered because the plaintiff did not plead the defendant’s bad faith), holding that good faith is an affirmative defense
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|
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Why does the court think it is an affirmative defense?
|
It’s not listed in 8©.
statute doesn’t list bad faith as an element Limited sphere in which a good faith defense may be inferred |
|
|
Facts peculiarly in defendant’s control HOW?
|
Rehnquist’s concurrence leaves open the possibility that the burden of proof might be different that the burden of pleading.
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What about affirmative defenses not listed in 8(c) – how do you know if those are affirmative defenses?
|
See problem 5c
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Answer affirmative defenses continued.
Without info stuff to form a belief. |
Other parties may have info. You answer as to what you know at a particular time and you have to go back and change it when you do know.
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Affirmative defense:
|
yes but..... (as opposed to a denial).
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Rule 8c: not denying factual allegations but...
|
not denying factual allegations but there are other things you want to know that change
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|
|
La Font case p 387.
|
If you wanted to say this was a gift then you should have made it an affirmative defense. Any other matter refers to existing statutes. Under utah law, it’s a defense if the money is a gift. But has to depend on facts that the P would know, so here it was ruled that it was not an affirmative defense. So D can raise it whenever they want.
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Gomez, cop fired, deprived of due process. Did not get an investigation.
|
Must claim facts that show bad faith by the department. Should he have to say bad faith is an affirmative defense. P really can’t know what is going on in the defenses knowledge. This is a good example of a yes but...
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Counterclaims:
|
asserting your own claim against the P. Rule 13.
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Must you? Yes!, why not in a separate law suit?
|
Closely related to P claim. If it’s cumpulsory then has to raise it as counter claim or you don’t get to. If it’s permissive, you can bring it as a counter claim but you don’t have to. Permissive v. cumpulsory.
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Difference between a legal conclusion and a factual conclusion:
|
Remember you don’t have to respond to legal conclusion but you do have to respond to factual conclusions.
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|
Assertions about whether something violates a law is a
|
legal conclusion which you don’t have to respond to because that’s why you are going to court.
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Blunt case comment: if they would have divided their complaints up more then
|
Blunt’s answer would have addressed specifically factual conclusions.
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Dif. Between a reply and answer.
|
Same rules apply to reply, but req. as a reply to any specific counterclaim.
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|
|
Cross claim rule 13g:claims among people ...
|
claims among people on same side of the case. A claim could be both a cross claim and a counter claim.
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|
Kyle v. Morton High School
S ct. asks for operative facts. |
This is in contradiction to req. for notice pleadings. Motivated by same policy concerns of Dartmouth Case.
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|
Swierkiewicz v. sorema n. a.
Claimed he was fired for age discrimination. S Ct. |
[Court says you can’t have heightened pleading requirements in employment discrimination cases] {Basically says if it’s not in rule 9, then heightened pleading is not required}.
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|
What’s the point of giving someone qualified immunity for a government official?
|
To give them a zone that they can operate without being worried about being sued. The zone is, as long as they have reasonable belief that what their doing is right then immunity. Anything outside that then no immunity.
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|
|
Relation back of claims example in class:
|
Adding additional claims back against existing party. 15A. same conduct of original pleading so okay.
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Answer
Shall admit or deny the averments Denials shall |
fairly meet the substance of the averments denied
Unless the pleader intends in good faith to controvert all the averments of the pleading, |
|
|
the pleader may make denials as
|
specific denials of designated averments or paragraphs, or may generally deny all averments except those expressly admitted
Denials subject to Rule 11(b)(4) |
|
|
Rule 11(b)(4): without knowledge or
|
Without knowledge or information sufficient to form a belief as to truth
|
|
|
Recall that many of the things mentioned as possible motions (personal jurisdiction, subject matter jurisdiction, venue, etc.) can simply be included in the answer rather than filing a motion. What is the difference?
|
General denials, which are still allowed in some states, allow the defendant to simply deny everything and force the plaintiff to “prove it”
|
|
|
Federal rules don’t typically allow general denials, subject to possible sanctions
Sanctions based on what? |
Look closely at Rule 11(b)(4) and read in connection with Rule 8(b)
|
|
|
What do you actually have to do in the answer? What are the advantages, disadvantages of requiring this kind of response?
|
Certainly can help narrow issues.
|
|
|
As a plaintiff, is there any tactical decision you would make based on these requirements?
|
Might plead short, specific paragraphs with more detail to get admissions
|
|
|
Why have general denials?
|
Short time to respond, availability of discovery.
|
|
|
Why does a defendant want a general denial?
|
One, don’t want to give away information, but two, also don’t want to get tied down as to what you will have to show because of general denial
|
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|
Affirmative Defenses
Rule 8(c) lists how many defenses |
19 defenses
|
|
|
19 defenses that must be
|
that must be set forth affirmatively, plus “any other matter constituting an avoidance or affirmative defense”
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|
|
LaFont v. Decker-Angel
Gomez v. Toledo - Court does what |
reverses a 12(b)(6) dismissal of a 1983 action (entered because the plaintiff did not plead the defendant’s bad faith), holding that good faith is an affirmative defense
|
|
|
Why does the court think it is an affirmative defense?
|
It’s not listed in 8©.
statute doesn’t list bad faith as an element Limited sphere in which a good faith defense may be inferred |
|
|
Counterclaims – Rule ?
|
13
|
|
|
rule 13. is any claim _____ has against _______
|
Any claim the pleader has against any opposing party
|
|
|
rule 13. compulsory if
|
Compulsory if it arises out of the transaction or occurrence that is the subject of the opposing party’s claim and does not require the presence of parties of whom the court cannot acquire jurisdiction
|
|
|
rule 13. a claim is barred if
|
A claim is barred if it was a compulsory counterclaim and was not brought as such
Permissive for any other claim against an opposing party that does not arise out of same transaction or occurrence |
|
|
So what does it mean that the system is adversarial in concrete terms?
|
Parties control the case and its development:Parties shape the issues through pleadings
Parties must file motions to ask the court to act Parties control discovery (mostly) Parties control presentation at trial Rules built into the system of “waiver” to incentive parties |
|
|
What kinds of things do you need to analyze before filing suit?
|
Who and where to sue, what types of claims are available, what kinds of evidence will be available and what types of relief can be expected
|
|
|
At pleading stage, we will look at the rules of what must be in the pleading, and the issue is what we are trying to accomplish with the pleadings.
|
Identifying factual vs. legal issues so case can be disposed of
Establish what the parties propose to prove so opponent can know what they have to meet General notice (to be fleshed out by later stages) |
|
|
Motions are a ...
|
formal request that the court issue an order
|
|
|
SJ allows the parties to dispose of cases for which there is
|
no legal basis when there is no real factual dispute. If pleading isn’t the center and discovery is, then it serves the function we talked about before of weeding out legally insufficient claims.
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|
|
SCHEDULING ORDER – is?
|
setting case for trial
|
|
|
Availability of jury historically depended on
|
the kind of relief being sought due to the way courts were divided between law and equity.
|
|
|
Only got a jury for
|
law trials
|
|
|
General pros and cons of final judgment rule –
|
efficiency, but ultimately means some issues won’t actually be significantly reviewed
|
|
|
Res judicata refers to
|
the effect of a judgment – it’s binding nature on the parties and other parties
|
|
|
How do we know which of these parallel systems a case will go into?
|
It’s in part a decision made by the parties, constrained by rules governing the JURISDICTION of federal courts. Jurisdiction is a concept we will study in great detail next semester, but
|
|
|
there are basically # kinds of jurisdiction –
|
two kinds of jurisdiction – Personal and subject matter jurisdiction.
|
|
|
Personal jurisdiction is
|
an issue for all courts,
|
|
|
subject matter jurisdiction is
|
a unique animal for federal courts. Federal courts are courts of limited jurisdiction. Draw venn diagram of PJ, SMJ and Venue
|
|
|
FRCP are rules written by
|
a committee overseen by the US Supreme Court under authorization from Congress. They have the force of a statute
|
|
|
Some statutes themselves directly govern –
|
examples with respect to SMJ, venue, interpleader
|
|
|
The constitution itself acts as a
|
constraint on courts’ power.
|
|
|
Much of what we will read will be court decisions. Those can be a variety of different types of cases. They might be interpreting
|
a Rule or a statute, interpreting the Constitution, or in some cases, they might be making “common law” – law made by the court without any controlling reference.
|
|
|
Ours is a system heavily built on
|
precedent, but not all precedent is created equal. Recall the hierarchy of federal courts.
|
|
|
Very early pleading happened in
|
person and orally, through alternating statements by the parties, intended to reduce the case to a single issue.
|
|
|
No right to trial by jury because a jury couldn’t exercise the King’s
|
judgment to do justice – had to be the Chancellor, who acted for the king
|
|
|
Discuss defects in the pleading in Gillispie vs. Goodyear Service Stores.
|
Pleading mere conclusions, not the facts that demonstrate the existence of a claim based on its elements.
|
|
|
Does not, however, need to have the magic
|
words and know what claim to raise.
|
|
|
As long as the facts present a
|
cognizable claim.
|
|
|
But to plead all the relevant elements, probably going to have to
|
have an idea of the claim you’re pleading
|
|
|
Still some hangover regarding “single issue” which leads to
|
“theory of the pleadings” cases allowing only one theory.
|
|
|
Could view this as a problem with
|
pleading rules or with joinder rules
|
|
|
Variance problem heightened. Look at Messick v. Turnage –
|
there the plaintiff lost because the leaky roof turned out to have been caused by something else.
|
|
|
Look closely at Rule 8 and compare it to rules under common law and Code pleading. How has it changed?
|
Don’t have to plead a cause of action, only a “claim.” Done away with single issue rule.
|
|
|
What is the aggregate effect of the rules changes?
|
Moving from complaint centered to discovery centered
|
|
|
Lambert case was a California case where plaintiff pled inconsistent negligence claims. Court said
|
it was okay as long as they didn’t refer to each other.
|
|
|
7th Circuit formulation requires only a
|
“better than negligible chance of success” on the merits.
|
|
|
It must be assumed that the plaintiff would be able to
|
prove all the facts it alleges, even if it appears unlikely.
|
|
|
Defendant must concede
|
those facts for purposes of the motion
|
|
|
Counterclaims – Rule 13
|
Any claim the pleader has against any opposing party
Compulsory if it arises out of the transaction or occurrence that is the subject of the opposing party’s claim and does not require the presence of parties of whom the court cannot acquire jurisdiction |
|
|
A claim is barred if
|
it was a compulsory counterclaim and was not brought as such
Permissive for any other claim against an opposing party that does not arise out of same transaction or occurrence |
|
|
Reply
Plaintiff required to file a reply to a counterclaim “denominated as such;” |
the court may order a reply to an answer or third-party answer
|
|
|
Same rules apply to reply as to answer. Should a reply be required for every matter in avoidance of an affirmative defense?
|
Federal practice treats it as assumed that the plaintiff denies allegations in the answer
|
|
|
Cross Claims – Rule #
|
13(g)
|
|
|
rule 13g: claim by one party ...
|
Claim by one party against another co-party (only against parties already in the case)
|
|
|
rule 13g is allowed when
|
Allowed if the cross-claim arises out of the transaction or occurrence that is the subject of either the original action or a counterclaim, or relating to any property that is subject of original action
|
|
|
cross-claims are
|
Cross-claims are permissive, not compulsory
Except when a cross-claim is also a counterclaim against other co-party that has asserted cross claim against it |
|
|
Pleading with Particularity
By contrast to Rule 8, in cases of fraud or mistake, |
the pleader must state the circumstances constituting fraud or mistake with “particularity”
|
|
|
with particularity means what
|
Must plead the “who, what, when, where and why”
|
|
|
rule 9g: when items of special damage are ...
|
Rule 9(g) – when items of special damage are claimed, they shall be specifically stated
Special damages are “the kinds of injuries that do not necessarily flow from” the violation of rights that the plaintiff has proved Heightened pleading for policy reasons |
|
|
Some courts have implied that Rule 9(b)
|
should be relaxed if plaintiffs do not have access to information and won’t until after discovery
|
|
|
Note discussing inconsistency of Rule 9 cases in terms of what must be pled.
|
Some courts take a hard view that Rule 9 is different and shouldn’t be interpreted together with Rule 8. Others say the requirement only extends to a method of committing fraud and details not needed about time, place, person, etc.
|
|
|
In automobile accident, each item is special damages unless
|
it would necessarily flow from the underlying violation of rights.
|
|
|
Perhaps loss of his earnings, emotional damage to her flow directly, but better advice is to
|
plead them all
Most courts say that identification of the type of special damage is sufficient, don’t need lots of details about which body part was hurt, for how many days, etc. |
|
|
Other Heightened Pleading
Siegert - |
Kennedy says in concurrence that heightened pleading requirement is most workable means to supply the objective test required by immunity analysis
|
|
|
Other Heightened Pleading. Leatherman –
|
court may not impose heightened pleading standard in a civil rights case alleging municipal liability under § 1983
|
|
|
Kyle v. Morton High School
“For fair notice to be given, a complaint must |
at least include the operative facts upon which a plaintiff bases his claim.”
See Form 5; Form 9 |
|
|
By failing to identify the speech or political association he claims caused the retaliation, plaintiff has omitted the
|
gravamen of his complaint.
Dissent - the gravamen cannot be a particular fact or a legal theory; the gravamen is the grievance. |
|
|
Heightened Pleading After Sweierkiewicz
|
No heightened pleading requirement for employment discrimination cases
|
|
|
Amended Pleadings
Rule |
15(a) – once “as a matter of course” before responsive pleading is served; or with leave of the court, and leave to amend shall be freely given when justice so requires
|
|
|
In the absence of any reason to deny leave, it
|
should be granted
|
|
|
reason to deny leave
|
Undue delay
bad faith or dilatory motive on the part of the movant Repeated failure to cure deficiencies by amendments previously allowed Undue prejudice to the opposing party Futility of the amendment |
|
|
Aquaslide initially admitted
|
that it manufactured the slide at issue in the personal injury case, relying on conclusions drawn by insurers and investigators for the defendants.
|
|
|
They admitted that in their
|
answer on December 12, 1973.
|
|
|
After the statute of limitations ran on the plaintiff’s claims, the defendant then
|
discovered that they didn’t manufacture the slide and sought leave to amend their answer to deny manufacturing the slide.
|
|
|
Plaintiff didn’t want defendant to amend because now that limitations period has run, if this defendant didn’t manufacture the slide, then they
|
might never be able to sue the real manufacturer.
|
|
|
But Court says that defendant didn’t act in bad faith – it amended as soon as it
|
had information contrary to what it thought.
|
|
|
Moreover, since plaintiff never conceded that slide was not made by Aquaslide, it wasn’t necessarily true that the amendment would
|
leave plaintiff without a remedy.
|
|
|
Amendment would merely allow the defendant to
|
contest a disputed factual issue
|
|
|
Amended pleadings that change a party relate back when:
1) claim arises ... |
1. Claim arises out of same conduct as original pleading
|
|
|
Amended pleadings that change a party relate back when:
2) within the ____ period for .... |
2. Within the 4(m) period for service, the new party receives notice of the action such that it will not be prejudiced
|
|
|
Amended pleadings that change a party relate back when:
3) the new party knew or ... |
3. The new party knew or should have known that, but for a mistake concerning identity, it would have been named originally
|
|
|
Relation Back of Claims
What kind of notice? |
Such notice of the institution of the lawsuit that the party will not be prejudiced in maintaining a defense on the merits
|
|
|
Notice by when?
|
Within 4(m) period for service of the summons and complaint – 120 days from date of complaint
|
|
|
Why does it matter?
|
If proposed new defendants have identity of interest, notice can be imputed to them
|
|
|
What must the new party know?
|
Knew or should have known that, but for a mistake concerning the identity of the property party, the action would have been brought against the party
|
|
|
Yoda problem in class:
Rule 15. (must examine each step in order or no)1st step is to ask "does it ... |
1st step: does it arise out of same conduct? Yes
|
|
|
2nd step: is to analyze the notice. A. is it the right.... B. is it within the ....
|
analyze notice. A. is it right kind of notice? Yes. B. is it within the right amount of time= 120 days from date of original complaint. Yes.
|
|
|
3rd step:was there a mistake concerning ...
|
was there a mistake concerning identity they would have been named? Were not named cuz didn’t know it was there fault. This is not what rule 15 is about. You know who the company is you just misnamed them. No.
|
|
|
Rule 11:attorney must investigate ...
|
attorney must investigate the legal and factual basis of client’s claims. Must research law and a minimal amount of checking to make sure client is not making things up.
|
|
|
Rule 11c2:can't be awarded for ...
|
can’t be awarded for legal which is the lawyer’s job but can be for factual.
|
|
|
Sanctions available to court:
________________________ |
1. against client: monetary or non monetary (court can strike documents and/or throw case out) 2. attorney: publish a reprimand.
|
|
|
Relation back refers to situations where
|
an amended claim is given the benefit of the original filing date.
|
|
|
The amended pleading “relates back” to
|
the original filing date.
|
|
|
What kind of notice?
|
Such notice of the institution of the lawsuit that the party will not be prejudiced in maintaining a defense on the merits
|
|
|
Why does it matter?
|
If proposed new defendants have identity of interest, notice can be imputed to them
|
|
|
What must the new party know?
|
Knew or should have known that, but for a mistake concerning the identity of the property party, the action would have been brought against the party
|
|
|
Deterring Abuse
Verification under 23.1 According to Rule 11 (prior to 1983), an attorney’s signature was a |
“certification” that (s)he believed there was “good ground to support” the pleading
|
|
|
1983 Amendments introduced objective requirement of reasonably inquiry but made sanctions mandatory if filed
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with “empty head”
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1993 Amendments made sanctions discretionary and introduced
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21-day safe harbor
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What is a reasonable inquiry?
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Cannot just rely on others, with the possible exception of reasonable reliance on experts.
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1993 Amendments
Who is covered? |
Attorneys and unrepresented parties; Law firms and “responsible parties”
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Monetary sanctions not awarded against represented party for legal arguments – Rule 11(c)(2)(A)
Operation of safe harbor? |
Motion served but not filed unless, within 21 days after service, the challenged paper is not withdrawn or corrected
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Court “may” impose an appropriate sanction
Sanction shall be limited to |
what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated; may include monetary and non-monetary components
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Applies to attorneys and
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unrepresented parties.
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Trying not to make represented parties responsible for relying on attorneys’ advice. But 11(c) extends sanctions to “parties responsible for the violation,” so if it’s information that comes from a party, they
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can be sanctioned.
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Lawyers can rely on “reasonable representations of clients” if
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no reason to suspect otherwise.
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Now also a violation to “advocate” a pleading, not just to file it. Point?
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Purpose of safe harbor is to ameliorate some of the harsh effects of mandatory sanctions and be careful not to stifle too much creative legal work. Scalia dissented from this rule because he thought it took the teeth out of the rule – now incentive is to go for it, and withdraw if necessary.
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Can be done on court’s own initiative if it gives the party an opportunity to show cause. Law firms jointly
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responsible
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What is a Judgment N.O.V.?
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Non Obstante Verdicto: Is a Judgment not withstanding the verdict: Reverses the jury verdict. It asks the judge to determine that the jury verdict had no reasonable support in fact or was contrary to law. It is in effect the same as a directed verdict.
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What is a Directed Verdict?
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A verdict during trial entered by the judge because the facts elicited during the trial, together with the applicable law, made it clear that the directed verdict was the only one which could have been reasonably returned.
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What is a Summary Judgment?
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Is a preverdict judgment by the judge in response to a motion by either party claiming that the absence of factual dispute on one or more issues eliminates the need to send those issues to the jury. When there is no real dispute as to salient facts or if only a question of law is involved.
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What is a Demurrer?
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A motion to dismiss; an objection that attacks the legal sufficiency of the opponent's pleadings. It is an assertion made without disputing the facts. The pleading does not state a cause of action so the D is entitled to judgment.
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What is a Cause of Action?
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a claim in law and fact sufficient to demand judicial attention; the composite of facts necessary to give rise to the enforcement of a right.
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What is a claim?
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the assertion of a right to money or property; the aggregate of operative facts giving rise to a right enforceable in the courts. A claim must show the existence of a right, an injury, and a prayer for damages.
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What is a prayer?
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request contained in complaint or petition that asks for relief to which plaintiff thinks him or herself entitled, that part of the pleading in which relief is requested.
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What is capacity?
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Mental ability to make a decision. Not necessarily insanity.
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Sua Sponte Sanctions
Rule 11(c)(1)(B) allows the court to enter |
an order on its own initiative directing the attorney/law firm/party to show cause why it should not be sanctioned
High standard – actions akin to contempt Due process protections attach to imposing sanctions |
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Judge failed to follow notice requirements for sua sponte motions and his conduct didn’t rise to the
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“contempt” level.
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Maybe a lowest cost avoider rule as applied to
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lawyers
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Procedure for a Rule 11 motion? What would the lawyer have to show?
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Nonfrivolous argument for his theory, including law revision. Probably can’t sanction Blackwell, a represented party, for legal theory
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Many courts require specific
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written findings of violations and damage amount for due process reasons.
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Other Sanctions
28 U.S.C. § 1927 allows sanctions for a lawyer who multiplies the |
proceedings in any case “unreasonably and vexatiously”
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Court’s “inherent power” to sanction
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bad-faith litigation conduct (even out of court actions)
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Contrast 1927 and Rule 11 and what they apply to. Look back at the example in the book about the clever, persistent, bad faith litigator. Rule 11 won’t help there because he keeps withdrawing within 21 day safe harbor, but what about 1927? What else would 1927 apply to?
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Non-writings
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In Nasco,the Supreme Court endorsed the courts’ “inherent power” to sanction bad faith litigation conduct, beyond the
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rules or statutes.
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It said that the express sanctioning authority does not displace courts’ inherent power, and don’t need to resort to those powers before using inherent power. Really extends courts’ power to
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sanction, and may contradict state law to the extent it sweeps in pre-litigation conduct
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Rule 11 – Post 1993 Amendments: Who is covered?
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Attorneys and unrepresented parties; Law firms and “responsible parties”
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Monetary sanctions not awarded against represented party for
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legal arguments – Rule 11(c)(2)(A)
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Operation of safe harbor?
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Motion served but not filed unless, within 21 days after service, the challenged paper is not withdrawn or corrected
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Court “may” impose an appropriate sanction
Sanction shall be limited to what is sufficient to |
deter repetition of such conduct or comparable conduct by others similarly situated; may include monetary and non-monetary components
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Applies to attorneys and unrepresented parties. Trying not to make represented parties responsible for relying on
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attorneys’ advice.
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But 11(c) extends sanctions to “parties responsible for the violation,” so if it’s information that comes from a party, they can be
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sanctioned.
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Lawyers can rely on “reasonable representations of clients” if no reason to
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suspect otherwise.
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Now also a violation to “advocate” a pleading, not just to
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file it.
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Point?
Purpose of safe harbor is to ameliorate some of the harsh effects of |
mandatory sanctions and be careful not to stifle too much creative legal work.
|
|
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Sua Sponte Sanctions
Rule 11(c)(1)(B) allows the court to enter an order on its own initiative directing the attorney/law firm/party to show |
cause why it should not be sanctioned
High standard – actions akin to contempt Due process protections attach to imposing sanctions |
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Rule 11 Certifications
To the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 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;
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Rule 11 Certifications
To the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 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; 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; 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 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. 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;
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Rule 11 Certifications
To the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 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; 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; 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 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. 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
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Rule 11 Certifications
To the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 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.
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Discovery Devices
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Initial Disclosures – 26(a)
Depositions Oral – Rule 30 Written questions – Rule 31 Interrogatories – Rule 33 Document Requests – Rule 34 Physical and Mental Examinations – Rule 35 Request for Admission – Rule 36 Subpoenas – Rule 45 |
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Scope of Discovery
Any matter, not privileged, that is relevant to the claim or defense of any party For good cause, the court may order |
discovery of any matter relevant to the subject matter involved in the action
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Relevant information need not be admissible as long as reasonably calculated to
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lead to admissible evidence
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Scope of Discovery, cont’d.
All discovery subject to Rule 26(b)(2) limitations: Unreasonably cumulative or duplicative or |
available from a more convenient source
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Party seeking discovery has had ample opportunity to discovery
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information
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Burden or expense of the proposed discovery outweighs its likely
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benefit
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Initial Disclosures:Rule 26(a)All parties disclose must information they intend to
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use to support their claims and defenses (see Rule 26(a)(
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1)(A)-(D)
Use not limited to use at |
trial
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Note timing requirements of 26(a), 26(f), and 16(b)
Must disclose expert |
information pursuant to 26(a)(2)
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