Civ Pro

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Rule 8

Back 1

Governs General Rules of Pleading

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Rule 8a1

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Requires: A short and plain statement of the grounds for court's jdx
2 types of jdx:
(1) Subject matter jdx
(2)Personal jdx

*Must Establish BOTH Personal Jurisdiction & Subject Matter Jurisdiction

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Subject Matter Jurisdiction

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2 types:
28 U.S.C. 1331: Federal Question Jurisdiction
-Does the dispute arise under a Federal Law, Treaty, Constitution?
28 U.S.C. 1332: Diversity Jurisdiction
-Are the parties residents of different states?
-Is the relief sought greater than 75,000?

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Personal Jurisdiction

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“Minimum Contacts” with the State OR Citizen or Resident of the State

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What constitutes residency/citizenship of a state?

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(1) Physical Presence
and
(2) Intent to remain
(as est. by Hawkins v. Masters)

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How do you determine an appropriate venue for the claim?

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(1) Purely statutory
and
(2) jurisdiction most convenient (where circumstances surrounding dispute occurred)

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Rule 8a2

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Requires: A short and plain statement of the claim showing the pleader is entitled to relief:
1st: Conley: “notice pleading”, sufficient to give party to whom relief was sought notice of the claims against them
2nd: Twombley: “conceivable to plausible," applies only to anti-trust
3rd: Iqbal: Rule applies to all complaints! “Plausible on its face”, must raise from the speculative level into the realm of plausibility

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Conley Standard

Back 8

Now debunked
A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that P can prove "no set of facts" in support of his claim to entitle him to relief
Required only "basic notice pleading regime"

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Twombley Standard

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Factual allegations must be enough to raise a right to relief above the speculative level, to the plausible level, assuming all allegations are true
Controversy over whether applied to only anti-trust cases, or all cases
Two parts:
(1) Assume all factual allegations are true
(2) Do these factual allegations nudge claim across line from conceivable to plausible?

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Iqbal Standard

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The "formulaic recitation" of the elements of a claim are not entitled to the assumption of truth; Claim must contain more than just 'conclusory' statements
Complaint requires more than "the defendant unlawfully harmed me" accusation
Legal conclusions and assumptions are not entitled to presumption of truth
Confirmed that Twombley applies to more than just anti-trust cases

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Twiqbal Standard

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5-step process:
(1) Read the complaint
(2) Identify/research all necessary elements
(3) Apply Twiqbal analysis
--ID allegations not entitled to assumption of truth
--ID factual allegations to determine if the plausibly suggest entitlement to relief
(4) Argue sufficiency by comparing/distinguishing your case from previously pled cases
(5) Interlocutory appeal

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Rule 8a3

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Demand for the relief sought, which may include alternative/dift types of relief. Types of Relief:
(1) Substitutionary (usu meaning $): Compensatory OR liquidated/Statutory/Punitive
(2) Specific - asking the court to order someone (not) to do something: Injunction OR Declaratory Relief
(3) Temporary/Provisional/Preliminary - b/f you've had opportunity to figure out merits of case, you request a little relief: TRO OR Preliminary Injunction

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Compensatory Relief

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-Type of substitutionary relief
-In contract disputes, usu. limited to what you would have gotten had contract been valid
-In intl torts, relief to P for money he has lost or had to pay, damages for pain, suffering, emo distress, harm to reputation, humiliation, physical injuries

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Liquidated/Statutory/Punitive Relief

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Type of Substitutionary Relief
-Aimed entirely at punishment/deterrence
-Always entitled to de novo review (per State Farm)
-Apply 3-pronged State Farm test for punitive damages

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State Farm Test for Punitive Damages

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(1) Degree of reprehensibility of conduct
(2) Ratio of compensatory to punitive damages; and punitive to actual financial burden to plaintiff (9:1)
(3) Civil fines/penalties for comparable conduct in other cases
Evidence of reprehensible conduct unrelated to current case is not admissable in determining punitive award

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Permanent Injunction

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Type of Specific Relief; Most prevalent form of "equitable relief"
2 factors to consider in issuing an injunction:
(1) inadequacy of legal remedy; (2) Balance of hardships - must be strong threat of irreparable injury, and threat of harm to P w/o injunction must outweigh harm to D w/ injunction
(Governed by Rule 65)

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Declaratory Relief

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Type of Specific Relief
-Used when neither damages nor specific remedy can solve the problem
-Unlike injunction, may be used when other avenues are open
-Tool used to get the court to say what is needed to be said
(Governed by Rule 57)

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Preliminary Injunction

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-Type of order that is immediately available, but cannot be done ex parte

(Governed by Rule 65)

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Temporary Restraining Order (T.R.O)

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Type of Provisional/Temp/Prelim Remedy
-Lower version of preliminary injunction/can precede a preliminary injunction; Can be given ex parte; Auto. expiration date of 14 days
To get one, must prove:
(1) immediate, irreparable injury; (2) efforts to notify other's attorney and why notice should not be required

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Ex Parte

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Done or made @ the instance and for the benefit of one party only, and without notice or, or argument by, any person adversely interested;
Court action taken by one party w/o notice to the other, usu for temporary or emergency relief

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Procedural Due Process of Law

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Comes from 14th amend.: No state shall deprive any person of life, liberty or property w/o due process
-This is what guarantees all punitive damages a de novo review

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Rule 8b

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Governs Defenses: Admissions and Denials

Among other things, gets to idea that any allegation that isn't denied is considered admitted as true; but if you lack sufficient info to form a belief about allegation, state that, an it will have same effect @ this point as a denial

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Rule 8c

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Lays out affirmative defenses in 8c1, but the list is not all-inclusive

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Rule 8d

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Pleading must be concise and direct; Each allegation must be simple, concise and direct, no technical form is required.
A party may state as many separate claims or defenses as it has, regardless of consistency

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Rule 9

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Governs Special Pleading Matters
Rule 9 adopts a heightened pleading standard for certain types of cases

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9b

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Fraud or Mistake; Conditions of the Mind: A party must state with particularity the circumstances constituting fraud or mistake
*Primary purpose is to five fair notice of the claim and factual ground upon which it is based
*Higher standard than Rule 8's short, plain statement.

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Stradford v. Zurich Ins. Co.

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Case in which Zurich violated Rule 9b b/c they were accusing Dentist Stradford of insurance fraud, but they didn't state with sufficient particularity the part of the claim they were saying was false; They alleged that he lied, but they didn't say which statement they believed was a lie;
Rule: A fraud claim MUST specify who committed fraud, the dates and locations of the fraud, or exchange of documents during fraudulent negotations

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Jones v. Block

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prisoner-plaintiff didn't plead exhausting of admin remedies in his complaint; Holding: Even if your cause of action requires an exhaustion of other remedies, exhaustion is an affirmative defense, and is not something that must be spec. pled in the complaint.
Rule: Adopting a dift and more onerous pleading rule to deal with particular categories should be done through est. rule-making procedures, and not on a case-by-case basis.

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Rule 11

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Governs Signing Pleadings, Motions and other Papers; Representations to the Court; Sanctions

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Rule 11a:

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Every pleading must be signed by the attorney or the pleader

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Rule 11b

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Representations to the Court: By presenting the court with a pleading, the pleader certifies that it is not being presented to harass, delay, needlessly increase litigation cost; that the claims are non-frivolous; that the facts have evidentiary support; that the denials are warranted on evidence

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Rule 11c

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Sanctions: If 11b has been violated, the court can impose sanctions on the attorney, and the attorney's firm must be held jointly responsible for a violation committed by its employee
11c3: The Court can issue sanction on its own initiative
11c4: A sanction must be limited to suffices to deter repetition of conduct (All sanctions must be appropriate, and must simply deter all similar behavior.)

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11c5

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Monetary Sanctions:
Among other limitations in this rule, the court must not impose $ sanctions on the represented party,

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About Rule 11

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Inapplicable to discovery, but it does impose a duty on the discovery phase to say something you did wrong in the complaint if you later found out it was wrong
Purpose of Rule 11 is t deter baseless filings; Restricts a lawyer's ability to file a pleading when he has "no more than a hope" that favorable facts will emerge as case progresses
Most common Rule 11 violations involve failure to conduct adequate factual investigation

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If the pleading is withdrawn, can the court give sanctions if initiated by a party?

Back 35

No.

Front 36

Christian v. Mattel

Back 36

P sued D for a doll she said they created in violation of her copyright, but D copyrighted their doll 6 years b/f P; P's attorney was sanctioned for not exercising due diligence in research; some sanctions were later overturned b/c they were imposed based on discovery abuses, misstatements, and conduct in litigation. R. 11 sanctions are limited to "papers signed in violation" Conduct in depositions, discovery meetings, oral representations at hearings and behavior in prior proceedings can't count.

Front 37

Walker v. Norwest Corp.

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In which case lawyer was sanctioned for not only failing to prove the diversity jdx that he claimed, but actually proving otherwise.
He tried to get out of sanctions by saying he was too broke to pay them, and that proving the diversity would have been too burdensome. (It is ALWAYS the pleading party's burden to prove jdx)

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Rule 1

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Scope and Purpose of the FRCP is to govern all CIVIL actions and proceedings in US District Courts. They should be administered as to secure the just, speedy and inexpensive determination of every action and proceeding.

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Rule 2

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There is only one form of action. The civil action.

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Rule 4

Back 40

Governs the Summons process

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Rule 7

Back 41

Governs pleadings and motions

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Rule 7a

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These pleadings are the only ones allowed
1 - Complaint; 2 - Answer to complaint; 3 - Answer to counterclaim; 4 - Answer to crossclaim (a claim asserted b/t co-Ps or co-Ds in a case that related to the subject of the orig. claim); 5 - A 3rd party complaint (Complaint filed by D agst 3rd party alleging the 3rd party may be liable for all/some damages that P is trying to get from D); 6 - Answer to 3rd party complaint; 7 - If the court orders one, a reply to an answer

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Rule 7b

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Governs how Motions must be requested to the court

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Rules 38 and 39

Back 44

Discusses Right to Trial by Jury
-Rule 38: Parties have a right to a trial by jury as preserved by 7th amendment, must it must be demanded
Rule 39: A trial demanded by jury must be by jury unless parties file a stipulation to non-jury trial or unless court finds the issues have no fed. right to trial by jury

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Rule 52

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Governs how facts and conclusions must be stated on record when the trial is without a jury or with an advisory jury; And dictates when/how/what to do with partial findings

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Rule 54

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Judgment and Costs
A judgment includes a decree and any order from which an appeal lies
A default judgment must not differ in kind from, or exceed the amount, that is demanded in pleadings
Costs other than attorney's fees should be awarded to prevailing party, and this rule also governs how attorney's fees CAN be awarded

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Rule 55

Back 47

Procedure for Default Judgment:
(1) P files, serves correctly
(2) D does not show
(3) P files with clerk-hearing
(4) P gives notice to D of hearing
(5) D does not show-enters default judgment

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Rule 57

Back 48

The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate

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Rule 60(b)

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Ways for D to overturn default judgment:
1 - Mistake, inadvertence, surprise or excusable neglect
2 - newly discovered evidence
3 - fraud
4 - the judgment is void
5 - judgment has been satisfied, released, discharged; based on an earlier judgment that was since reversed
6 - any other reason that justifies relief (this is the catchall)

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Rule 65

Back 50

Injunctions and Restraining Orders
65a: Court may issue prelim injunction only on notice to adverse party (not ex parte); and b/f or after hearing for motion on prelim injunction, court may advance trial on the merits and consolidate it with the hearing

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Rule 65b

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Court may issue TRO w/o notice to adverse party ONLY if (1) specific facts show immediate and irreparable injury and (2) movant's attorney certifies in writing any efforts made to give notice, and the reasons why notice shouldn't be required
Every TRO expires at most 14 days after it is issued
If TRO is issued w/o notice, hearing for prelim injunction must be set asap, taking precedence over all other matters

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Rule 68

Back 52

Offer of Judgment:
Governs how settlements can be made and rejected

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Rule 12

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When and how defenses and objections should be presented; Motion for Judgment on Pleadings; Consolidating Motions, Waiving Defenses, Pretrial Hearing
**All about pre-answer motions**

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Rule 12a

Back 54

D must answer a complaint w/i 21 days of service, or if waived service, w/i 60 days of having sent waiver. (All answers, counter-claims, answers to counter-claims etc. must be w/i this 21-day period.)

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12a4

Back 55

If D requests a motion, and Court denies it, then D must serve a responsive pleading w/i 14 days after notice of court's action

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12b

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A party may assert these defenses in a motion (presumed in a motion to dismiss the case):
1- Lack of Subject Matter jdx
2-Lack of personal jdx
3-Improper venue
4-Insufficient process
5-Insufficient service of process
6-Failure to state a claim upon which relief can be granted
7-Failure to join a party under Rule 19

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12h3

Back 57

If the court determine at any time that it lacks subject matter jdx, the court will dismiss the action

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Standards of Review

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1- De Novo: From the beginning; Ap. Ct. gives no deference to Trial Court's judgment; They start completely from the beginning; This is awarded from Due Process (14th amend.)
2- Abuse of Discretion

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What is the difference between an equitable remedy an a legal remedy?

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Legal remedy (damages) is usually money and equitable remedy is specific conduct
If the legal remedy is unsuitable, then the equitable remedy may be sought
If it is difficult to calculate what actual or compensatory damages (substitutionary remedy) might be, then an equitable remedy might be more appropriate

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Financing Litigation

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English Rule: Loser pays all;
American Rule: each party pays for their own litigation, with exceptions:
(1) Rule 54d - Unless statute or court order provides otherwise, the loser should pay court costs (not incl. attorney's fees) to the prevailing party
*Idea behind Amer. rule is that, if the loser always has to pay everything, it could effect the decisions of poor plaintiffs to bring meritorious cases to Court, for fear they may be in big debt if they lose. It discriminates legal access based on wealth.

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Two types of Due Process of Law

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1-Procedural
2-Substantive

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At the Appeals Court, what is the first thing that must be considered?

Back 62

Standard of Review; Either De Novo, or Abuse of Discretion

Front 63

-Fuentes v. Shevin

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Leading Sup. Ct. case that brought DPL to head in terms of replevin; Rule: Parties whose rights are to be affected are entitled to be heard, and in order that they might enjoy that right they must FIRST be notified. It is fundamental that the right to notice and an opp. to be heard must be granted at a meaningful time and in a meaningful manner; For a situation to be extraordinary enough to justify postponing notice and opportunity of hearing, it must be extremely unusual, ie directly neces to secure an impt govt or general interest, and/or a need for prompt action

Front 64

Sigma v. Harris

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"inadequacy of the remedy" case - idea that money aint gonna cut it; Case Rule: Main prerequisite to obtaining injunctive relief is a find that P is being threatened by some injury for which there is no adequate legal remedy

Front 65

Inglis v. Continental Bakery 4-pronged test:

Back 65

For prelim injunction: (1) P would suffer immediate, irreparable harm w/o inj.; (2) P will probably prevail on their merits; (3) Balance of equities: D will not be harmed more than P is helped; (4) Public Interest
Alt Test: "It is not necess that the moving party be reasonably certain to succeed on merits. If harm that may occur to P is sufficiently serious, it is only necess that there be a fair chance on its merits."