C.

Iskandar – Civil Procedure II Chart – Dean Cameron Page 1 of 14

Spring 2005

P L E A D I N G S
 Why: to give notice
Common Law: Modern Law
1. Give Notice 2. Discover Facts 3. Focus Dispute 4. Resolve Claims 1. Give Notice
Types
COMPLAINT
 Tells the D what the P is suing for
1. Jurisdiction Rule 8(a)(1)  Must state PJ and/or SMJ
 Statement must be “short and plain” and state a claim.
Rule 8(a)(2)
 If claim can be implied, it’s enough.
Two Basic 1.Incomprehensible
Problems 2.Missing elements (see Rule 9)
2. Short and Plain Fraud and Mistake
Contents

Rule 9(b)  Facts stated w/ “particularity” as to fraud or mistake

Statement of requirement
Claim Rule (9) – Special Damages
Special Matters Rule 9(g)  If alleging damages not usually associated with the claim, they
must be stated specifically.
Court/jury may award damages P is entitled to regardless of
Rule 54(c)
whether P pleaded them or not.
 Money Damages
3. Demand for
Prayer for Relief  Injunctive/Equitable Relief
Judgment  Declaratory judgment
FRCP Rule Description Tests, Misc.
D’s Attacks on P’s Complaint

12(b)(1) Lack of SMJ

12(b)(2) Lack of PJ
12(b)(3) Improper venue
Insufficiency of process (Filing See last semester’s chart for analysis tests.
12(b)(4)
of notice)
Insufficiency of service of
12(b)(5)
process
Test: If there are any facts imaginable to support the D’s claim, then a 12(b)(6)
cannot be granted.
Failure to state a claim for
12(b)(6)  If motion is granted (no facts imaginable to support the claim) can be:
when relief can be granted.
- W/o Prejudice: P can amend complaint + re-plead
- W/ Prejudice: case is dismissed (final J) on the merits
Failure to join a necessary
12(b)(7)
party
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P L E A D I N G S
FRCP Rule Description Tests, Misc.
D’s Attacks cont.

 Appropriate when: P filed a complaint, D has filed an answer that admits all the
12(c) Judgment on the pleadings
allegations (everything agreed upon).
Motion for more definitive  If pleading vague and ambiguous, D can request motion. If P doesn’t respond
12(e)
statement w/ion 10 days, court will strike that part of the pleading.

 Strike any part of the pleading that is an insufficient defense, scandalous,

12(f) Motion to strike
redundant, irrelevant, or impertinent.

ANSWER
 D’s response to P’s complaint that admits or denies allegations in the complaint
 Significance: either creates a dispute b/c we’re going forward, or ends a dispute b/c facts are admitted to.
FRCP Rule Description Tests, Misc.
12(a)(1) Filing Time Must file w/in 20 days after being served
1. A D must admit or deny each allegation
 Failure to respond (admit/deny) is an admission
 Kinds of denials
- Failure to resond particularly is a general denial and is an admission
Basic Rules

(FRCP Rule 8(d))

- Specific denial: target specifically what is to be denied.
- Denial of knowledge/info as to truth of P’s claim (full denial)
8 “Use It or Lose It”
2. Raise Affirmative defenses
 Raise Rule 12(b) motion or
 Raise a 8(c) defense (for example  SOF, illegality, assumption of risk, etc.)
 Failure to raise an affirmative defense: waives the use later.
3. Assert any counterclaims/3rd party claims (such as joinder)
 Failure to assert a compulsory counterclaim means you waive its use forever
 However, permissive counterclaims can be brought later.
11 Kitchen Sink Effect Beware bringing frivolous claims and defenses – can run the risk of being punished.
AMENDMENTS
 Of the pleadings
FRCP Rule Description Tests, Misc.
15 Simple Amendment  Party may amend complaint specifically before responsive pleading is served
within 20 days after filing of the complaint with the court.
 Must be done before placed on court calendar and answer is filed.
 Get to do this once as a right.
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P L E A D I N G S
1. Can amend by consent of adversary, or
Cont’d.Basic Rules Basic Rules

Afterward
2. By leave of court: to be freely given when justice so requires.
 After the SOL has expired, pleader may add a claim or defense when it [test]
arises out of the same transaction or occurrence set forth in a timely filed pleading,
and the date would be put the date as the timely pleading.

(Changing party’s name)

 After the SOL has expired, and wrong party was named, pleader may add correct
name if:
15(c) Relation Back
1. W/in 120 days of filing the complaint; and,
2. Party sought to be named has received such notice that s/he would not be
prejudice; and,
3. Knew or should have known that but for mistaken identity, proper party would
have been named.

Signature certifies, based on
reasonable inquiry under the
Basic Rules
SANCTIONS
 If violate (1-4) then you will be sanctioned
1. Pleading is not for improper purpose
2. Legal contentions are ‘warranted’
3. Fact contentions have evidentiary support
4. Denials of factual contentions are similarly warranted or reasonably based on
lack of information.

circumstances, that: What is a Reasonable Inquiry – factors to consider

1. Did lawyers have to rely on client for info?
2. Does the other party have most of the info?
11
3. How much time for investigation was available to the signer?
4. Did s/he depend on other counsel for info?
 Damages $
 Judgment against you w/ prejudice
Sanctions can include
 Evidentiary sanctions – might not allow (or will allow) certain discovery
 Case dismissed.
 Allows the allegedly violating party an opportunity to fix their mistake.
Safe-harbor 1. Person who alleges violation of claims – files motion to fix pleading.
2. Must be done w/in 21 days – hearing of sanctions that get taken off the calendar.
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J O I N D E R
BY PLAINTIFF
FRCP Rule Name Description/Test
Single P suing a single D may bring as many different claims as a single D as they want.
18 Add-A-Claim
 Test: no restrictions
a. P wants to sue D and wants to add someone else.
b. Can only add additional parties to a single P/D when the claim arises out of the same common
20 Add-A-Party
nucleus of facts
 Gibbs Test: Same transaction or occurrence
*** Remember the Rule 15(a) amendments  Simple, afterward and after SOL.
BY DEFENDANT
Diagram
FRCP Rule Name Description/Test New claim
Existing Claim
Counter- Impleader Cross-Claim

 An existing D sues another existing D (D claims to P D

another person)
13(g) Cross-claim  Permissive

Test  Gibbs: Same transaction or occurrence D

 An existing D sues new D P D

 Sues new D not originally in suit
14(a) Impleader
Test  3rd party D is or may be liable to existing D for
contributions/indemnity D

13(a) Compulsory  Compulsory (Use it or lose it):

Counter-Claim P | | D
Test  Gibbs: Same transaction or occurrence, or
logical relationship
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J O I N D E R
Claim

 Not compulsory: bring it now or later

Permissive
13(b)
Counter-Claim
Test  Not the same transaction or occurrence
P D

 D is bringing the motion in attempt to dismiss the case – because the case is missing a necessary/indispensable party and they
cannot be joined.
Necessary/Indispensable

 If absent party is: NECESSARY + INDISPENSABLE = DISMISS!

( If joinder is unfeasible, cause MUST be dismissed)
 If missing party is Necessary, we have to join them, if feasible.
 Person is necessary if:
19(a) Necessary 1. In the absence of the necessary party, there is incomplete relief to the parties present.
2. Absent person has an interest that may be impaired/impeded
3. Absence may cause double/multiple/inconsistent obligations.
 Party is so vital that if joinder is impossible, the whole case must be dismissed.
1. There will be prejudice to absentee
2. There will be prejudice to the parties.
19(b) Indispensable
3. Adequacy of judgment w/o absentee
4. Adequacy of P’s remedy if case is dismissed.
5. Can the court lessen prejudice by protections?
BY THIRD PARTY
InterventionIntervener/

 A party that was not part of the original litigation wants in.
24(a)(1) By Right: Statutory  Compulsory intervention anytime Congress says you can – created by statute.
 Has an interest that may be impaired/impeded
 Has an economic/political/ideological/social interest
24(a)(2) By Right: Interest
 The intervener’s interests may not be adequately protected by the existing parties
(burden of proof is on the intervener)

 By permission of the court

24(b) Permissive
 Court’s discretion – court may want them there to help out

 If separate litigation, could result in D/M/I obligations, the joinder is satisfied.

22 Rule - Scarcity of the pot?
 If this is satisfied: Go through the statutory
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J O I N D E R
Statutory: Expands  As long as any two claimants are from different states, you have minimal diversity
§1335
Interpleader

Minimal Diversity  Reduces amount in controversy to $500 or more

 Venue will be appropriate in any district where any claimant (or group of claimants)
Statutory: Expands
§1397 reside
Venue and PJ
 Makes nationwide service possible
 A federal court has the power to enjoin state court litigation related to the same state to
Statutory: Injunction
§2261 serve purposes of interpleader – “umbrella litigation”
or stay
 Claimants are forced to join the party.

C L A S S A C T I O N S
Litigation by Representation
WHAT

 Makes it possible for individuals to have an incentive to bring a

1. Absent parties will be bound by fate of lawsuit, when they might not have brought one by themselves.

WHY
representative party, yet not joined  There is tremendous incentive for Ds to settle  exposure to
2. Two lawsuits underway potential liability has gone up exponentially.
 By named P  Class action is a form of superjoinder  where all the claimants
 On behalf of named parties want to be joined to the decision but cannot attend the courthouse.
CERTIFICATION REQUIREMENTS – FRCP Rule 23
a. Can we figure out who these people are?
1. Identifiability b. it is feasible to find these people  are they ASCERTAINABLE?
2. Membership  The named representative must be of the class described
a. The absent class members must be so numerous that joinder of their Practicality Test: (25-40 People)
individual claims is impracticable.  Are the claims so numerous that
3. Numerosity b. Numbers game (in Federal Court) it would be impracticable for them
 1-25 people: not enough  40+: enough to be brought separately?
a. There must be at least one question of law or fact that is common to everyone in the class.
4. Commonality b. The result  must come out the same way for everyone
c. Individual litigation raises the possibility for inconsistency: group litigation keeps things consistent.
a. Does the named representative have a claim of the same type as the claims of absent class members?
5. Typicality b. Is the claim typical of the class?
 Will be a problem if the type of claim is different.
a. Of class counsel b. Of class representative
6. Adequacy 1. Is the lawyer and his resources adequate to the task? 1. Adequate commitment?
2. The more experienced counsel  more adequate 2. No conflict of interest?
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C L A S S A C T I O N S
23(b)(1) Anti- Test  If individual joinder of claims could subject absent class members  No notice
prejudice to the risk of M/D/I litigation, then it’s proper to have this particular  No opt
class. out
 Designed to avoid prejudice to either P or absent members  No notice
 Problem of scarcity: not enough to go around for everyone of
23(b)(2) Equitable Test  Whether the D has acted or failed to act in a manner generally settlement
applicable to the class.
 Relief generally equitable in nature (injunction, specific performance)
7. Category 23(b)(3) Damage Test  Questions of law and fact common to class have to predominate; REQUIRED:
and class action method is superior to any other form of joinder.  Notice
Superiority: Four factors  Opt-out
1. Interest of individual members in controlling the litigation  Notice of
2. Extent of litigation clearly commenced settlement
3. Desirability of choosing the forum
4. Difficulty of managing the class
 Least-desirable class to the P, and most desirable classification (other
than dismissing the case) to the D due to requirements -----------------
NOTICE
 Up-front cost and expose themselves to reduced numbers because people can get
out. Must advise class members of:
Commencement 23(b)(3) Opt-Out 1. Right of exclusion
2. Judgment will have a binding effect
3. May appear w/ own lawyer and file separately; b/c damage awards will be different.
 Needs approval of court – needs notice and opportunity to be heard given to absent class members.
Settlement  Gives opportunity for class members to object.
 Applies to all certifications.
Judge’s  Due process requirement requires adequate notice for b(1) and b(20 (not actual notice as b(3)) – at least by
Discretion publication.
JURISDICTION ISSUES
Personal  Minimum contacts not required.
Jurisdiction  All the class members have consented to the forum via the representative member.
 Class actions based on Federal Question don’t raise any special questions regarding
Federal Question
SMJ
Subject-Matter  Diversity is based on citizenships of named parties only.
Jurisdiction Diversity Issues
 Each member of the class must meet the $75K minimum for amount-in-controversy
 Therefore, you rarely see a class action based on diversity, b/c you cannot aggregate
claims to meet the jurisdictional amount.
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C L A S S A C T I O N S
 As long as the named class representatives each have a claim in excess of $75K, the
supplemental jurisdiction doctrine applies so that the unnamed members need not meet
the jurisdictional amount.
(Not conclusively  Must still satisfy the Gibbs test – one person may supplement the claims of other
Supplemental decided law) members that don’t meet the jurisdictional amounts in order to have a class
certification.
 One person may supplement the claims of other members that don’t meet the
jurisdictional amounts in order to have a class certification.

D I S C O V E R Y
1. Ascertain Facts
2. Eliminate undisputed facts
3. Preserve testimony/evidence
purposes

4. Also: a. Facilitates settlement

 Discovery educates clients and lawyers about the merits of the case.
b. Eliminates surprises in a civil trial
 Each side has an obligation to tell each other what they have
Includes information that:
- Establishes basis of pleading
Relevant
- Reveals who has such info
1. Must be relevant to subject
- Impeaches party witnesses [Not bystanders]
matter
 Reveals tactics/strategies
FRCP
Not relevant  Discloses insurance policy limits
basic rules

26(b)
 Impeaches non-party witnesses
 Where private interests > judicial interests
- Work-product doctrine
2. Not privileged
- Attorney-client doctrine
- Protective orders
OBLIGATIONS: Each party must: 1. Self-disclose 2. Investigate 3. Cooperate 4. Comply
methods

 Testimony, taken in front of a court reporter

1. Deposition  Questions asked by lawyers, answered under oath, w/ opportunity for cross examination
 Most effective device for discovery
 Usually written questions from one side to another
 Not answered under oath and usually answered by lawyers
2. Interrogatory  Can be pretty ineffective, but if facts are admitted to, can be admissible as evidence.
 Usually very broadly posed and broadly answered.
3. Request for Production  Documents/evidence are “produced”
 Records, evidence, letters, etc.
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D I S C O V E R Y
 Issues w/ electronic discovery; can also include an inspection of the grounds or access
 Asking for admitting facts  narrows the controversy
4. Request for
 Not interactive; must ask questions in a precise way to get an answer.
Admissions  Usually a yes/no answer to questions.
Test:  Must be a party to the litigation
5. Medical Examinations
 Medical conditions (mental/physical) must be in controversy
(FRCP 35)  Must have good cause (great need > greater than relevance)
 A form of process: a court order issued to a 3rd party - mandatory
 Asks a 3rd part to come and share evidence/information
6. Subpoena  Sometimes comes w/ notice of deposition
 Major difference: involves a 3rd party
PRIVILEGED MATTER DOCTRINES
1. Certifies good faith conference
protective order

2. Shows good cause for limiting discovery

If Resisting Party:  Must show some real facts that show you need this
3. Demonstrate annoyance, embarrassment, oppression or undue hardship
1. Disclosure not be had
2. Time/place/manner conditions attend disclosures
Then the court may
3. Disclosure method be limited
issue: 4. Inquiry be limited  to attorneys or those who need to know
5. Trade secrets be sealed
 To protect lawyer’s mental impressions & work from other side, part of an adversary judicial
Purpose system.
 Material prepared in anticipating of anticipation of litigation
Protects from
work-product

 Anticipate: if stuff has been filed, then clearly the lawyers are anticipating litigation.
disclosure  Doctrine not limited to attorneys: applies to anyone who is preparing info for lawyers.
1. Substantial need, but (reasonably calculated to lead to discovery of admissible evidence)
Unless discovering
2. Can’t get substantial equivalent
party can show 3. W/o undue hardship.
 Can never get attorney’s mental impressions, conclusions, opinions, legal theories, etc.
Nevertheless (Protective order)
Need not disclose: 1. Communication
 Looking for a memo, letters, substance of oral communications,
etc.
 Words such as “secret, confidential, for your eyes only”
2. That is Confidential
 Privilege not attached to anything already in public domain.
3. From or to attorney  Attorney: someone admitted to practice under bar
 Includes anyone working under the attorney in confidential
capacity.
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D I S C O V E R Y
Client: person who hired the attorney; person whom the attorney
privilegeattorney-client

4. To or from client
5. For legitimate purposes
6. For which privilege is not
waived
is representing
 Also includes potential clients
 Also includes people employed by a client company
 Getting information for purposes of committing a crime or
fraud: will “bust” attorney-client privilege
 Illegitimate purposes not protected.
 If client has waived privilege, and says okay to disclose, then
it’s fine
 If client has already disclosed info to 3rd party or published info.

A D J U D I C A T I O N W I T H O U T T R I A L
ANALYSIS FOR MOTION FOR
SUMMARY JUDGMENT, DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT
The moving party has made a motion for SJ/DV/JNOV under Rule 56(c)/50(a)/50(b).
1st ¶

SJ/DV/JNOV is granted only when there is:

1. Absence of genuine issues of material fact and
2. Moving party is entitled to Judgment As Matter Of Law (J/A/M/O/L)

1. The fact issue is _______________

FACT

2. The moving party must show that a reasonable jury must find that __________ because _________
3. But the opponent will argue that no reasonable jury could find that ___________ because ________

1. The law issue is _______________

2. The moving party will argue that if a reasonable jury must find that [insert fact issue here], then the moving party is entitled to
LAW

J/A/M/O/L because [insert law issue here].

3. But the opponent will argue that if no reasonable jury could find that [insert fact issue here], then the moving party is not
entitled to J/A/M/O/L because [insert law issue here].
Before Trial Motion for Summary Judgment
ORDER

Brought After
During  Testimony, Examination, Directed Verdict
but before verdict
After Trial JNOV
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T R I A L
RIGHT TO JURY TRIAL
Determine: Whether a particular claim would have gotten you a trial back then
7th A.  “Right of trial by jury shall be preserved”
Ross v. Bernhard test: At common law, were you entitled to a jury trial?
TEST:
If didn’t exist is there an analogous claim?
Legal Equitable
Assumpsit Quiet title
Conversion (stealing) Ejectment
1. Nature of
Debt (Money had and received) Fraud
claim Duty of innkeepers Breach of fiduciary duty
Libel or slander (defamation) Replevin
Trespass (negligence) Nuisance abatement
 Does the P want money or specific performance?
Money Reinstatement
Injunction
2. Nature of
 (Will always trump equitable – if there is a Declaratory judgment
relief sought combination thereof, the Money wins.) Accounting
Restitution
Mandamus
3. Practical Look for:  bias, and or complexity of issue
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RIGHT AT COMMON LAW PRESERVED BASED ON

(Example: securities issue)

1. Facts and/or the law of the case are too complex for juries to
decide
2. Prejudice
 Racial, religious, etc.
 Jury unable to render a fair verdict, b/c it’s got some sort of
axe to grind

Limits of Jury
Abilities Two Types of Problems

NEW TRIAL
Public Rights Exception needs to be here!!!

P R E C L U S I O N
PRECLUSIVE EFFECTS DOCTRINE
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RES JUDICATA (CLAIM
PRECLUSION)

1. Final judgment valid on SMJ + binding on PJ

Prevents litigation 2. On the merits
3. By/against same party/privity
when claim in prior 4. Based on same transaction or occurrence in previous suit
judgment was: Policy= finality, efficiency, consistency
“day in court”
(ISSUE PRECLUSION)COLLATERAL ESTOPPEL

1. Identical to present issue

2. Actually litigated (some battle or dispute)
3. Necessarily decided
a. No alternative theories of liability
b. Final judgment (i.e. dismissed w/ prejudice)
4. Against same party/privity (whom estoppel is being asserted)
5. Result of full and fair opportunity
 Check earlier litigation for:
a. Availability of joinder
b. Jurisdictional effect
 SMJ/PJ
Precludes litigation c. Proper notice
when issue in prior d. No jury trial
judgment was  Go through 7th A. analysis here
e. Missing evidence/witness
f. Poverty
g. ‘One hand tied behind back’
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