Civil Procedure Outline - Santa Clara Law



Civil Procedure Outline

Remedies: what is sought from a lawsuit

1. “Legal Remedies/ remedies at-law” are “Damages” $$$

2. “equitable relief/ remedy in-equity” is inherently malleable, includes;

“Injunctive relief”

“Specific performance”

3. “Declaratory relief” is a declaration of the legal status of the parties to clarify positions of parties, usually asked for with another form of relief.

Due Process

Due process refers to prior notice and an opportunity to be heard.

42 U.S.C. § 1983. gives a cause of action for constitutional wrongs or torts

if the gov’t under color of state law, deprives an individual of constitution rights, they are entitled to relief.

14th Amendment 14TH amendment protections of due process for all persons living in the United States from life, liberty, or property, without due process of law.

A claim under 14TH amendment, requires government action, not private individuals.

FRCP

FRCP 7(a);(b);(c)

a) Pleadings: Complaints (filed by plaintiff), answers (by defendant), and replies (discretionary by order of the court). Alleges something and asks for relief.

b) A motion is a prayer, or request to the court, asking for something.

c) Modernization that abolishes demurrers and pleas in federal court.

FRCP 8(a);(e);(f)

a) (1,2,3) facts, legal claims, and claim for relief, invocation of courts jurisdiction

(e) (1) simple, no formal language is needed

(f) hortatory phrase. Wiggle room allow opportunities to amend or fit claims.

“12(b)(6) motion” – federal version of demurrer.

Motion to dismiss complaint for failure to state a claim upon which relief can be granted.

A challenge to legal sufficiency.

Construe the facts in light most favorable to plaintiff.

Look at nothing beyond the four corners of the complaint.

“12(e) motion”

Motion for more definite statement.

“12(c) motion”

Motion for judgment on the pleading.

Different from 12(b)(6) because it looks at complaint and defendant’s answer, not just the complaint as 12(b)(6).

“12(f) motion”

Motion to strike. Opportunity to defendant to cut something out that is irrelevant, scandalous, inappropriate, scurrilous language.

Complaint Terminology:

1) Code pleading – Gillispie

a. “Ultimate facts”

2) Notice Pleading – FRCP are a liberalization of code-pleading.

a. Certain facts aren’t known until discovery at times.

b. Notice to defendant

c. Notice to court

d. Give some info to court to get the ball rolling

3) “face of the complaint”

“four corners of the complaint” – you can’t look beyond the four corners of the complaint – metaphor to mean that there are certain challenges to plaintiffs complaint that should only be decided on what has been presented in suit.

“light most favorable to the plaintiff”

The court will look at the four corners of the complaint, and not beyond the four corners.

12(e) is only useful when a complaint is so unintelligible that a reply cannot be formulated pursuant to Rule 8.

It is disfavored for 12(e) to be used as a fishing expedition as predicate to 12(b)(6). But maybe not…maybe sometimes before some courts.

Rule 11 applies to the law firm, the party who signs, and the attorney who signs.

FRCP 11 ( Sanctions applies to everything except discovery.

FRCP 11(a) Signature

Promising by way of signature to comply with section 11(b).

FRCP 11(b) Representations to Court

“formed after an inquiry reasonable under the circumstances” ( this language means that good faith does not matter, ignorance of law is sanctionable.

1) anti-harassment rule

2) good law requirement

3) good facts – homework was done

4) defendant’s answer-denial is supported by homework

FRCP 11(c) Sanctions

Appropriate sanction

1) how to initiate movement for sanctions, plaintiffs and defendants alike.

a. Safe Harbor provision: “the recipient of the motion has a 21 day safe harbor to correct it if indeed there has been violation of the rule. ( benefit to court of being self-executing.

b. “Sua Sponte” on the court’s own motion. (no safe harbor for sua sponte motion, court uses sua sponte power only when aggregious violation. Generally judge will suggest that the party amend document)

FRCP 11(d) Inapplicability to Discovery

This rule does not apply to discovery papers as described through rule 26-37.

28 U.S.C.A § 1927 ( to deter counsel, not parties, from intentional unnecessary delay.

Under Rule 11(c)(3) ( the court must explain why sanctions so its clear why.

11(c)(2)(a) – monetary sanctions may not be awarded against a represented party for a violation of subd. (b)(2). ( party should not be punished for the sins of the lawyer wrt legal arguments.

Pleading in the alternative:

People hear about arguing in the alternative, and it shows how “devious” lawyers are.

Look to Rule 11. You cannot pursue a set of facts so longs as the lawyer and client know certain facts to be true when they conflict with the alternative claims.

You cannot plead what is factually untrue.

RULE 9 (goal is to prevent in terrorum tactics to settle for fear of damage to reputation, costs, etc: purpose:

Three reasons for Rule 9:

1) notice,

2) injury to reputation

3) limiting in terrorem value of suit.

a) we still live in the general notice pleading world of the Federal Rules, and 9 is the exception to the rule where there is a pleading standard.

b) Fraud, Mistake, Condition of Mind requires particularity.

Should 9(b) be applied to other substantive areas of the law such as § 1983 claims? NO. Supreme Court says that 9(b) only includes fraud, mistake, and conditions of the mind. Leatherman case.

What about Title VII employment discrimination cases? NO. Sweirkowitz, Rule 8, does apply to a McDonnall Douglas pleading requirements? NO.

The only place where there must be particularity in pleading is fraud, and others described in 9(b). Otherwise, Rule 8 pleading standards are all that is required.

Pre-answer motions under rule 12

FRCP 12(b) motions

(1) lack of subject matter jurisdiction – the complaint doesn’t belong in fed court

(2) lack of personal jurisdiction – the court has no power to make the person come into court

(3) improper venue – proper court under federal statute

(4) insufficient process – wrong name, not sealed, technically deficient forms

(5) insufficient service of process – mode of delivery insufficient, incompetent, non-agent

(6) failure to state a claim upon which relief can be granted

(7) failure to join a Rule 19 party (necessary or indispensable party) – dispute cannot proceed without the party

12(g) consolidation of defenses – do some homework and include all 12(b) objections in bundle.

12(h) waiver and preservation

12(h)(1) – least favored defenses

12(b)(2),(3),(4),(5) can be raised in the pre-answer motion, or the answer under Rule 15, or else they are waived forever.

12(h)(2) – favored defenses

12(b)(6),(7) & Legal Defense, can be made in any pleading or ordered under 7(a) or by motion for judgment on the pleadings, or at the trial by merits. (12(b)(6) can be made at any point)

12(h)(3) – most favored defenses

12(b)(1) – if the court lacks subject matter jurisdiction, the court shall dismiss the action (at any time, even during the appeals process – it is of fundamental importance)

12(b)(6) ( tests legal sufficiency, not factual sufficiency

12(c) judgment on the pleadings motion ( nothing in the way of proof or evidence needs to be looked at, the complaint and the answer (pleadings) are sufficient to render judgment

Rule 56 summary judgment motion( a test of factual sufficiency. The defendant makes the motion when there has been sufficient time for materials outside the 4 corners that allows the movant to say the case can be resolved on the factual insufficiency of the case.

FRCP 55 Default

Difference between entry of default and entry of default: the entry of default is a preliminary step. Judgment of default is final.

Rule 55

(a) entry of default – by clerk.

(b) judgment of default

(1) by clerk: in routine formulaic situations. Sum certain. Easy to do.

(2) by court: not as easily determined

(c) – see 60(b) under certain circumstances, a default judgment can be set aside.

FRCP 8(b) the Answer

8(b) defenses, admissions, denials, lacking sufficient information,

Affirmative Defenses FRCP 8(c) ( think about the function of an affirmative defense. Say statute of limitations. If the complaint is not brought by a certain time, the court will not recognize the claim.

Defendant raises the defense affirmatively.

It says “Yes…BUT…” even if everything was true, this defense resolves the issue

If D fails to raise affirmative defenses, it is not available at trial.

If justice requires, there may be leave to amend to raise the affirmative defense.

Defendant’s Motions

1) “pre-answer” motions

2) failure to answer – default

3) Answer

a. admit, deny, or “without knowledge”

b. affirmative defenses == “yes, but…”

c. counterclaims – seeks remedy

The rules of rule 8 apply to counterclaim (cross complaint), and rule 12 motions can be filed.

The original plaintiff is the defendant to the counterclaim.

“Original defendant is in the posture of the plaintiff.”

d. voluntary dismissal (Rule 41(a)(1)(2))

41(a)(1) the first bite of the answer happens without consequences.

The “unless” part means the second bite of the apple may have consequences.

e. amendment (Rule 15)

15(b) amendments to conform to the evidence.

13(a) counterclaim ( compulsory ( arises from same transaction or occurrence. Unless the counterclaim is brought, the defendant loses right to litigate it due to res judicata, and estoppel.

13(b) counterclaim ( permissive ( does not arise from same transaction or occurrence.

Transaction/Occurrence:

“Same evidence” test

“Logical Relation” test

1. Are the issues of fact and law raised by the claim and counterclaim largely the same?

2. would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim?

3. will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?

4. Is there any logical relationship between the claim and the counterclaim?

Reason to be in federal court: 1) The existence of a federal question, 2) diversity of citizenship. 3) if no diversity jurisdiction, then supplemental jurisdiction might exist (n.3 pg. 210) if the claim arose from the same transaction, as a compulsory claim.

Rule 15: Amendments to pleadings:

Rule 15

(a) see generally David v. Crompton & Knowles –

- applies to all parties in lawsuit.

- liberally granted subject to some constraints (sloppy lawyering)

(b) amendments to conform to evidence (to which both parties agree)

(c) Relation back – Swartz (what happens when you filed the lawsuit before the statute of limitations has expired, and now, there is another party that should be added. You are trying to get the date-stamp placed on new information.

(c)(1) if relation back is allowed under certain circumstances, etc.

(c)(2) relation back of claim

(c)(3) relation back of party

(d) supplemental pleadings – after-occurring events.

“The Statute of limitations has run”—Relation back fact pattern

Joinder

Rule 17

Rule 17(a) – real party in interest. Lawsuits can only be brought by a real party in

interest.

“fictitious names” – “Doe’s

- as plaintiffs, the purpose is there are people whose names won’t be disclosed, but they are real parties in interest.

Rule 18(a) – joinder of claims

- Questions: what is rule designed to do? Who can use this rule and who can’t?

- allows the bundling together of as many claims possible

Rule 20 – Joinder of parties (permissive)

- used by party in the posture of the plaintiff, or by plaintiff.

- any party can use this rule

Rule 18: joinder of claims

Permissive joinder of claims. ( as long as parties are in court, let them bundle as many claims as they want to, expect for jurisdictional problems.

Rule 18 allows the joinder of as many claims as the parties want.

Rule 20 Permissive Joinder

Sentence 1)

20(a) plaintiff’s can join parties together if: they assert a right to relief; same transaction or occurrence, or series of transactions or occurrences; common question of law or fact.

(all of these elements must be satisfied)

Sentence 2)

20(a) all persons may be joined as defendants by the party in the posture of the plaintiff. Then the same elements of sentence 1.

Defendants can use Rule 20 if acting in the posture of the plaintiff.

Rule 20(b) severs claims and can set up separate trials.

Also see Rule 21 ( misjoinder.

taking both sides for joinder.

When there is request for injunction, there is a better argument for 50 people should be able to join together.

Rule 19: compulsory joinder

Defendant gets to have some control over the lawsuit if they meet the rule of the requirements under Rule 19. ( the absent defendant belongs in the lawsuit despite what the absent party or plaintiff wants, or there is some absent party that should be forced to enter because the absent party is in such a posture that they really belong in the lawsuit for it to move forward.

The original defendant being sued, identifies outside party, doesn’t really want the party in the lawsuit, and wants to get the party dismissed because the party couldn’t be joined, and file to dismiss under 12(b)(7) motion.

1) the defendant wants another defendant in the lawsuit because the defendant wants to share liability.

2) The defendant wants to get the suit dismissed because of lack of jurisdiction if a party is required but cannot be joined, then 12(b)(7)

RULE 19 STRATEGY

If you get a set of facts or a case and the suit is in federal court based on diversity of citizenship, and defendant has any opportunity to say there is another defendant, they will argue the other defendant is an indespensible party, and attempt to have the defendant brought in, destroying diversity jurisdiction for the court.

Rule 19 “compulsory” joinder

(random note: occasionally there is a compulsory plaintiff)

* Note other terminology (case-law Janney, described as other terminology, joinder of persons needed for just adjudication rule, “joinder of necessary and indispensable parties”)

19(a) – is this a necessary party? (is this a party to be joined if feasible)

19(a)(1) complete relief without absentee?

19(a)(2)(i) will non-joinder impede the absentee party’s ability to protect interest?

19(a)(2)(ii) will non-joinder impede the existing party’s ability to protect interest?

19(b) – only see 19(b) if the answer to 19(a) is yes (that there is a necessary party) and there is a problem with bringing the party in to the suit (i.e. destruction of jurisdiction, diversity Jurisdiction, or an outsider who is not subject to the personal jurisdiction of state)

-What should the court do if the answer to 19(a) is yes, and its not feasible to join them?

-Should the court allow the action to go on? Or dismiss the action?

When you get a Rule 19 problem: do the whole problem!!! Do 19(a) and (b) analysis.

Argue in the alternative that 19(a) answer is yes, then do 19(b).

Starting on page 245, the analysis is how we should analyze Rule 19 on test.

19(a)(1) Complete relief: what is being asked for in the lawsuit?

If complete relief can be accorded without another party, 19(a)(1) answer is yes.

Answer is different with injunction than with money damages sometimes.

WHAT IF the court found the party is feasible??? See 19(b)

A judge may tell the plaintiff that they can seek only money damages even when they made a prayer for legal and equitable relief, because the equitable relief requires the other party, but the money damages do not.

Can plaintiff go somewhere else as a forum?

Rule 14: Impleader

P( Defendant (third party plaintiff) - - - TPD (third party defendant)

If TPD wants to add another, TPD is 4th party plaintiff and there is a 4th party defendant.

Defendant is in posture of plaintiff when making claim against TPD.

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