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Civil Procedure Outline

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Pleadings
Pleading standard hierarchy: Probability (Heightened) Plausibility Notice Courts have not explicitly ruled on where heightened lies in this hierarchy, but it can be assumed its between plausibility and probability Rule 7(a) shows types of pleadings allowed Rule 10 governs form of pleadings Complaint Allowed under 7(a)(1) o Rule 8(a)(1) Short and plain statement of jurisdiction o Rule 8(a)(2) o short and plain statement of the claim showing that the pleader is entitled to relief Must include an allegation for every element of a claim o legally sufficient o factually sufficient Needs balance of requirements If the standards are too high, some legit cases wont pass motion to dismiss If the standards are too low, the courts will be flooded with lawsuits Notice Pleading Dioguardi, Conley o Dioguardi was Italian immigrant who alleges tonics were improperly sold by customs officials, sues them in their official capacity. Doesnt trust lawyers, so is pro se client. Writes multiple drafts of complaint and is given leave to amend. Court eventually says he has stated enough to put defendants on notice of the suit. Plausibility Twombly, Iqbal o ATT v. Twombly Twombly wants to sue ATT for violation of Sherman antitrust act, must plead facts that show conspiracy is in realm of plausibility. Sup. Ct. rejects Conleys no set of facts test, then cites Conley 2 weeks later o Iqbal sued Requires more than notice pleading, but not heightened pleading or probability (probability = more likely than not) One test is to remove all conclusory statements from complaint and see if the facts sound plausible
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Heightened Pleading standard Rule 9(b), (c), (g) 9(b)- malice and intent and other conditions of the mind dont have to be alleged with particularity Leatherman v. Tarrant County o Ruled that court cannot make more stringent pleading standard if it is not required in rule 9 o This was a 1983 civil rights case. Pleading in the alternative When a genuine issue of fact is involved, conflicting alternate claims can be alleged Rule 8(d) o As long as one satisfies 8(a)(2) o Theory is that the evidence will end up favoring one claim and bad claims should not affect a good one o McCormick v. Kopmann PLs husband hit head on by truck, sues both the bar at which the decedant was drinking and the truck driver. Bar was sued in the alternative for selling him too many drinks (Dram shop law) McCormick should have motioned for claims to be separated o Alternative claims can create a one or the other scenario in jurys minds. o -demand for judgment Rule 8(a)(3) Response to Complaint o Answer Respond to Allegations 21 days to answer complaint under 12(a)(1)(A) Admit o Can either admit explicitly o Allegations not addressed are taken as admitted Deny o Can deny with particularity (McNary) o Or use general denials (Rare, deny all parts of allegations) Lack Sufficient evidence to admit or deny o Taken as a denial Affirmative Defenses Governed by 8(c) Some must be filed in a motion in order to be preserved in the response Rule 12(h) Claims for relief Counterclaims, similar to complaint Amending Pleadings o Rule 15 o Applies equally to PL+DEFs o Liberal leave to amend policy 15(a)(2) Need good reason to deny leave to amend
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Undue prejudice Undue delay Failure to cure deficiencies (too many chances) Rule 11 issues Amendment wont create actual claim Time to respond to amended pleading 15(a)(3) Original amount of time remaining for first pleading Or 14 days, whichever is longer 15(b) Arises at trial 15(b)(1) is for objection at trial 15(b)(2) is for no objection Should be allowed as long as it doesnt create any prejudice or aids in presenting merits of the case 15(c) Relating back to original claim Marsh v. Coleman Co. Former employee filed age discrimination action and raised state law claims of fraud and breach of contract. Employer filed a motion for partial summary judgment. The District Court, Crow, J., held that: (1) the former employee's claim that the employer fraudulently promised lifetime employment did not relate back, for limitations purposes, to the age discrimination complaint; (2) the employee failed to show fraudulent intent or reasonable reliance, as required to recover under Kansas law; and (3) the former employee could pursue a claim that his written employment contract had been modified by implication to include a requirement that cause exist for discharge. Motion for partial summary judgment granted in part and denied in part. Relation back does not offend policies underlying statute of
limitations if original complaint fairly discloses general fact situation out of which new claims arise Former employee's claim that employer fraudulently promised lifetime employment did not relate back, for limitations purposes, to employee's claims of age discrimination and breach of contract; reasonably prudent person who read employee's original complaint would not have expected to face fraud claim based on promises allegedly made as much as three years before employee's discharge

Motions
Not considered pleadings 12(b)(1) can never be waived 12(b)(2-5) should be included in initial response/motion if applicable Dismiss o 12(b)(6) o Only for defendant to use
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Even if all facts in complaint are true, there still is no claim Issue w/ legal sufficiency More Definite Statement o 12(e) Only for pleadings to which a response is allowed. (usually DEF unless PL uses it against a counterclaim) Presidio v. GMAC Complaint is 465 pages, DEF motions for more definite statement Strike o 12(f) Available to both plaintiff and defendant If content is scandalous, insufficient, redundant, immaterial Court can strike, or it can be called by a party prior to answering, or if an answer to the pleading is not allowed or required, within 21 days of being served the pleading Can be brought up sua sponte Presidio v. GMAC Request to strike unnecessary content complaint is needlessly long

Honor Code
Rule 11 o 21 day safe harbor provision Not a jurisdictional rule Rector v. approved federal savings bank Provision is waivable defense if not raised in defense of rule 11 motion Established that it was not jurisdictional Made to reduce sanctions, not narrow jurisdiction. Gives opportunity for attorneys to withdraw offensive filing o 11(a) Everything must be signed by attorney/party and a court must strike an unsigned paper unless its corrected promptly. o 11(b) All info submitted must undergo a reasonable inquiry and not violate 11(b)(1-4) o 11(c) court may impose sanctions (11(c)(1)) after 21 days notice (11(c)(2)) o 11(d) this rules does not apply to motions on rules 26-37.

Discovery
Rule 26 o Rule 11 rules do not apply o Mandatory Disclosures 26(a)(1)
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Discovery Scope 26(b)(1) Court may order discovery of certain material Relevant material need not be admissible if it can lead to discoverable material. 26(b)(2)(C) Limitations imposed on discovery requests that would otherwise be allowed Lists 3 reasons court can limit discovery 26(b)(3) Trial preparation material exclusions o Must be prepared in anticipation of litigation by or for another party by its representative Jones v. Clinton Jones asks for info re: every woman other than his wife that president Clinton made sexual advances to, kissed, propositioned, had sex with, etc throughout his time as attorney general, governor, and president Clinton files for protective order limiting scope of discovery to occurrences more closely related to the incident. o Signatures and Sanctions 26(g)(1) Every disclosure, request, response, objection must be signed Complete + correct at the time it was made Consistent with disc. Rules and warranted by existing law or nonfrivilous argument to extend/change existing law 26(g)(2) No duty to act on unsigned document 26(g)(3) Certifications in violation of this rule without proper justification, the court MUST impose sanctions Discovery Devices o Rules 30, 33, 34, 35, 36 Scope 26(b)(1) Jones v. Clinton Electronic Discovery Rule 26(b)2(B) Zubulake v. UBS Warburg LLC o Attorneys must take precautions to instruct clients on retention of discoverable documents

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Some emails were destroyed off backups maliciously in Zubulake and sanctions were imposed (wrongful termination case) (1) as sanction for willful destruction of relevant e-mails by defendant's employees in defiance of explicit instructions by counsel not to do so, jury would be given an adverse inference instruction with respect to those e-mails, and

(2) as sanction for tardy production of relevant e-mails, defendant would be required pay the costs of any depositions or re-depositions required by the late production, and to pay costs of plaintiff's motion for sanctions. Privilege Attorney/Client Work Product Rule 26(b)(3) Hickman v. Taylor o Was not attorney/client privilege o Privilege is term of art for info in protected relationships o Should just be called trial prep materials protected from discovery o Work product is protected from discovery o 26(b)(1)are they relevant to any partys claim/defense? Look at oil spill essay ? o Is work product, but can get it b/c site doesnt look the same

Summary Judgment and JMOL

Summary Judgment - Rule 56 o Must file as motion at any time before 30 days after the close of discovery Summary judgment is appropriate if court determines there is no genuine dispute of material fact. 56(c) o Either: we agree to facts under applicable law, or moving party says the other party cannot prove their case. o Party moving for SJ is trying to say were not in need of a trial b/c theres no fact that needs to be found o Summary judgment may be partial or full o Judged on more than just complaint and response Affidavits, depositions, etc. 56(c) Need evidence, not conclusory statements or allegations
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Evidence doesnt always have to be admissible Celotex Case Party w/o burden (Celotex) celotex sent interrogatory asking for witnesses, celotex deposed them and they didnt have sufficient evidence to produce affirmative evidence. Celotex showed lack of affirmative ability and ability to prove case. Could not just point to PLs affirmative evidence and say its insufficient need to poke holes In light of conflicting evidence, (See p. 485), a judge cannot usually weigh credibility from each side of case. Anderson v. Liberty Lobby Inc. Question of whether clear and convincing evidence requirement must be considered by court when a motion for SJ is filed PL must present affirmative evidence in order to defeat a properly supported motion for SJ o Court must look at evidence in most favorable way to nonmoving party Draw reasonable inference in favor of nonmoving party Judge does not decide on credibility Thats standard of any moving party, regardless of where burden of proof lies If moving party has burden of proof, he must say there is so much evidence in my favor, no reasonable jury could find for opposition o Extremely difficult for party w/ burden of proof at trial to get SJ o DEF has burden of proof on any counterclaims o DEF has burden of proof on aff. Defenses 8(c) o PL has burden of proof on her claims Should be specifically motioned If SJ for complaint is granted in favor of DEF, aff. Defenses are moot b/c PL cant prove claim Difference between affirmative evidence and non-affirmative evidence Celotex o If you dont have burden of proof, you can show that the moving party with burden doesnt have enough affirmative evidence o Affirmative evidence must be able to be reduced to admissible form at trial If party without burden of proof moves for SJ at trial, they must show theres no genuine dispute of mat. Fact. They can show that any one element doesnt have evidence to support it. Or, they can come forward with something proving it wasnt them o Then burden shifts to nonmoving party, and they must respond to how motion was framed. Show evidence in support of element moving party says is deficient ANDERSON o Think about what burden of proof is to see what jury could do. Preponderance vs. clear and convincing o Entire SJ concept is do we need a trial? What could a reasonable jury find based on the record?

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If burden of proof is clear and convincing, youre going to need a little more to DEFEAT SJ, because jury is going to need more. i.e. A moves for nonmoving party w/burden of proof with clear and convincing standard Does C Move? o No o Yes o No right answer exactly. Debated. The S.C. in Anderson says theres no way to figure out what a reasonable jury would find in a trial Judgment as a matter of law(JMOL) o Rule 50 50(a) JMOL, used to be called directed verdict Used before jury deliberates No reasonable jury could find for opposing party Must be motioned after the non-moving party has presented their evidence Can be brought about by court without a motion Moving party must plead specifically 50(a)(2) not enough to say evidence is poor. Must be no reasonable jury can find 50(b) Renewed JMOL, used to be called JNOV Must have denied 50(a) motion For after jury has returned a verdict Must be entered within 28 days of verdict Always motioned by losing party in jury verdict o Rule 50(a) can be denied and 50(b) granted. This allows chance for jury to make right decision If the jury rules against the motion and a 50(b) is granted and then overturned by a higher court, the higher court can just reinstate the original verdict rather than having another trial o Lavender v. Kurn applies this is what we would have done Incorrect standard for JMOL Railroad worker killed by either hobo or train backing up Ok b/c state case o Easier b/c granted on clear weight of evidence Claims jury was on line of reasonableness Dont have to draw all reasonable inferences in favor of nonmoving party Could be on amt of verdict Accounts for issues in trial process
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Civil Procedure Outline Appeals to prejudice in closing argument Intimidation Attorney misconduct Any reason for which a new trial has been granted in the past

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New Trial Motion o Rule 59 For jury rulings against clear weight of the evidence Easier standard than JMOL Usually used in alternative and with filing of 50(b) motion Must be filed within 28 days of verdict (used to be 10, recently changed) Can be filed for excessive damages, attorney misconduct, bad jury instructions, etc. 59(d) can be brought about sua sponte

Jury Selection
Sixth Amendment o All criminal cases in state and federal courts have the right to a trial by jury Seventh Amendment o Only available for actions at law o Look to 1791 to see if you were entitled to jury trial in England Rule 38 o (a) right to jury trial preserved by 7th amendment o (b) if not requested then waived must be requested in writing within 14 days of the service of the last pleading filed in accordance with 5(d) o (d) waived if not requested o They are the fact finder for only disputed facts Rule 48 o 6-12 jurors - 48(a) o Unanimous unless stipulated by parties 48(b) Rule 47 o Selected from venire pool o Voire dire (questioning) 47(a) o Challenges For cause unlimited
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3 peremptory challenges 47(b) Cannot discriminate against race or gender o J.E.B. v. Alabama Cannot discriminate against gender Paternity suit, men were stricken from jury with peremptory strikes until it was an all-woman jury. Oconnor says private litigants or DEFs in criminal cases should be able to use their peremptory strikes in any way they want. The holding in JEB should only be limited to state actions against people o Batson Cannot discriminate against race

Miscellaneous
30 days to file an appeal Rule 83 district court can make local filing rules (avoiding code pleading issues) Should formal waive service under 4(d) unless you have good grounds not to

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