Civil Procedure Outline (4).docx

Civil Procedure =============== Introduction ------------ What is Civil Procedure? - Government has provided court systems for private citizens to obtain resolution of their private disputes - Civil procedure applies to civil matters only, not to criminal matters - Both state gove...

Civil Procedure =============== Introduction ------------ What is Civil Procedure? - Government has provided court systems for private citizens to obtain resolution of their private disputes - Civil procedure applies to civil matters only, not to criminal matters - Both state governments and the federal government operate court systems - Civil procedure includes the law that governs the authority of the courts to decide cases including - Court authority over the subject of the case (SMJ) - Court authority over the people in the case (PJ) - The law the court should apply to the case - Civil procedure is also the set of rules that govern how parties bring their disputes to the court and the process that must be followed toward resolution of the case Sources of Authority for the Law of Civil Procedure - Hierarchy of Authority 1. US Constitution 2. US Code (Statutes) 3. Federal Rules of Civil Procedure 4. Judge Made Law (Case Law) - Hierarchy of Federal Court Decisions Interpreting Authority - US Supreme Court - US Court of Appeals - US District Courts - Where the Federal Rules of Civil Procedure come from - Article III, § 1: Vests the judicial power in the Supreme Court and inferior courts created by Congress - "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish." Article III, § 1 - Article I, § 8 gives Congress the Power to create the inferior courts and "to make all Laws which shall be necessary and proper for carrying into Execution" that Power. - "The Congress shall have Power... To constitute Tribunals inferior to the supreme Court." - Article I, § 8 - Congress has the authority to write procedural law. It gave the Supreme Court the power to write the FRCP in 28 U.S.C § 2072: - "The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts... and courts of appeals." - The Chief Justice appoints Advisory Committees to consider procedural rules - Includes judges, lawyers, and professors - The committees send proposals to the Chief Justice. If the Court agrees, the Chief Justice sends the proposals to Congress Life of a Civil Action - Rule 3: A civil action is commenced by filing a complaint with the court. Pleadings that State a Claim **Pleadings**: Allegations made by the parties to a lawsuit regarding their claims or defenses - - Types of pleading are listed in FRCP 7(a) 1. Complaint - filed by plaintiff 2. Answer to Complaint - filed by defendant a. Can include a counterclaim and/or crossclaim 3. Answer to Counterclaim - filed by the plaintiff 4. Answer to Crossclaim - filed by co-defendant 5. Third-Party Complaint - a claim for indemnity filed by the defendant against a third party 6. Answer to Third-Party Complaint - filed by whoever the indemnity claim is made against 7. Reply to an Answer **Form of Pleadings in Rule 10** a. ***Caption; Names of Parties.*** Every pleading must have a caption with the court\'s name, a title, a file number, and a Rule 7(a) designation. The title of the **complaint** must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. i. A **complaint** has the special requirement that does not extend to subsequent pleadings (read last sentence again) b. ***Paragraphs; Separate Statements.*** A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence---and each defense other than a denial---must be stated in a separate count or defense. c. ***Adoption by Reference; Exhibits.*** A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. **Substantive Requirements for a Pleading that States a Claim (Rule 8(a))** a. Claim for Relief. A pleading **that states a claim** for relief must contain: 1. a short and plain statement of the grounds for the court\'s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; 2. **a short and plain statement of the claim showing that the pleader is entitled to relief**; and a. **Factual Sufficiency of Claim**: - Under the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to relief that is **plausible on its face**. While a complaint need not contain detailed factual allegations, it must allege more than mere possibilities. The court must assess the plausibility of the claim by drawing on its judicial experience and common sense. - **Three-step process for determining the factual sufficiency of a claim** 1. Identify the right(s) of action and its essential elements 2. Set aside conclusory allegations, which are not entitled to the presumption of truth, but give the presumption of truth to the remaining non-conclusory allegations 3. Assess whether the non-conclusory allegations directly or by inference support each element of the right of action. - The below cases inform the factual sufficiency of a claim, specifically regarding the plausibility standard: 4. ***Conley v. Gibson* (1957) (Black):** - A complaint has not failed to state a claim upon which relief can be granted unless it is clear beyond doubt that the plaintiff can prove **"no set of facts"** upon which his claim rests that would provide him relief. - Focus was on providing **fair notice** to the defendant; details can be found through discovery - General allegations are okay. - A very liberal pleading standard, designed to allow claims to be decided on their merits rather than dismissed on technical grounds. 5. ***Leatherman v. Tarrant County* (1993) (Rehnquist)** - Reaffirmed *Conley* liberal rule of general pleading, rejecting the imposition of heightened pleading standards i. If the FRCP allowed for a heightened standard, they would have said so 6. ***Twombly v. Bell Atlantic* (2007) (Souter):** - Introduced the \"**plausibility**\" **standard**, requiring a complaint to allege facts that, if true, would allow for the inference that the plaintiff would be entitled to relief ii. Away from merely conceivable to plausible iii. Plausibility standard requires more than mere labels, conclusion, or formulaic recitation of the element of the cause of action 7. ***Iqbal v. Ashcroft* (2009) (Kennedy):** - Reinforced the plausibility standard, extending plausibility standard to all civil cases, not just anti-trust as in *Twombly* - Held that the court must assess the plausibility of the claim by drawing on its judicial experience and common sense. 8. **Synthesis** - **Conley** created a very low bar for pleadings, allowing complaints to survive dismissal as long as some conceivable set of facts could support the claim. - **Leatherman** reaffirmed the Conley standard and opposed any heightened pleading requirements. - **Twombly** raised the pleading standard, requiring plaintiffs to present facts that make the claim plausible, discarding Conley's "no set of facts" language. - **Iqbal** confirmed that the plausibility standard applied universally, requiring more detailed factual allegations to survive a motion to dismiss. b. **Legal Sufficiency of Claim**: - *Johnson v. City of Shelby*: A plaintiff can state a claim upon which relief can be granted without providing the specific supporting legal theory 9. Failed to specifically invoke ​​42 U.S.C. § 1983 - *Conley v. Gibson*: Need only provide fair notice 3. a demand for the relief sought, which may include relief in the alternative or different types of relief. Responsive Pleadings - **List of Responsive Pleadings under Rule 7(a)** - \(2) an answer to a complaint; - \(3) an answer to a counterclaim designated as a counterclaim; - \(4) an answer to a crossclaim; - \(6) an answer to a third-party complaint - **Form of Responsive Pleadings in Rule 10:** (These also still apply) - \(a) Caption; Names of Parties. Every pleading must have a caption with the court\'s name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. - \(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence---and each defense other than a denial---must be stated in a separate count or defense. - \(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. - **Deadlines for Serving Responsive Pleadings** - Rule 12(a)(1)(A)(i) below: - \(a) Time to Serve a Responsive Pleading. - \(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: - **(A)** A defendant must serve an answer: - \(i) within 21 days after being served with the summons and complaint; or - \(ii) if it has timely waived service under [Rule 4(d)](https://www.law.cornell.edu/rules/frcp#rule_4_d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. - **(B)** A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. Motions Motion: Request for an order from the court directing some favorable act - **Form of Motion** - FRCP 7(b)(2): Rule 7(b)(2) provides that the rules for the form of pleadings in Rule 10 also apply to motions (and to other papers) - **Substantive Requirements for Motions** - Rule 7(b)(1) states that a request for a court order must be made by motion and then describes three requirements for the motion. A motion must: i. \(A) be in writing unless made during a hearing or trial; ii. \(B) state with particularity the grounds for seeking the order; and iii. \(C) state the relief sought. - **Timing and Deadlines for Rule 12 Motions** - If a party plans to raise one of the defenses listed in Rule 12(b) by motion, the party is required to do so *before pleading*. Therefore, the deadline for filing a pre-answer motion is the same as the deadline for filing a responsive pleading - Rule 12(a)(4) explains how the filing of a pre-answer motion changes the deadlines for filing a responsive pleading. Notice that these are just the default rules and that the court can set a different time if it chooses. iv. \(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court\'s action; or v. \(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served. - **Defenses that Can Be Raised by Pre-Answer Motion (explain the rules of waiving) 12(b) (2--5 are use it or lose it)** - \(1) lack of subject-matter jurisdiction; - \(2) lack of personal jurisdiction; - \(3) improper venue; - \(4) insufficient process; - \(5) insufficient service of process; - \(6) failure to state a claim upon which relief can be granted; and - \(7) failure to join a party under [Rule 19](https://www.law.cornell.edu/rules/frcp/rule_19). Field Code Pleading (David Dudley Field) **-** - Requirements - The **title of the cause**, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires to be had and the names of the parties to the action, plaintiff, and defendant - The **statement of facts** constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended - A **demand of the relief**, to which the plaintiff supposed himself entitled. If the recovery of money be demanded, the amount thereof shall be stated - Response to Code Pleading: - Upside: focus on facts and not forms of action - Downside: became too focused on technicalities and complex determination between \"evidentiary facts,\" \"ultimate facts\", and \"conclusion of law.\" - Evolved from something that was supposed to be a liberal standard into something more formulaic Amended Pleadings Under Rule 15, courts allow amendments **liberally**. Courts try to balance the goal of getting to the merits with the concern that amendments might unfairly prejudice the other party. - **Three Ways to Amend** - Amendments as a Matter of Course (15(a)(1) - Party may amend once as a matter of course no later than 21 days after serving it - Amendment with consent - May amend pleading with opposing party's written consent or the court's leave - Amendment with Leave of Court - Rule 15(a)(2) provides "The court should freely give leave when justice so requires" - **Responding to an Amended Pleading** - FRCP 15(a)(3): "Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading OR within 14 days after **service** of the amended pleading, **whichever is later**." - Notice that the 14 days are calculated from **service**, not just filing, of the amended pleading. This makes sense as the responding party may not have notice of the amended pleading until it is served. - **Relation Back of Amendments** - Relation back means that the new claim that is added by amendment is treated **as if you filed it on the date of the original pleading** -- so the new claim "relates back" to the earlier date (before the statute of limitations ran). - FRCP 15(c)(1)(A) allows relation back if the law providing the statute of limitation permits it. - FRCP 15(c)(1)(B) allows relation back if "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading." **Notice Pleading (Charles Clark) - adopted by Federal Rules of Civil Procedure in 1938** - Modern pretrial litigation - Rule 1: FRCP governs all civil actions in US District Courts (except per Rule 81) - Rule 2: One form of action - the civil action - Rule 3: Begin civil action by filing a complaint - Rule 7: Types of Pleadings & Forms of Motions - Rule 8: General Rules of Pleading (Substantive Requirements) vi. \(a) Claim for relief. A pleading that states a claim for relief must contain: - \(1) a short and plain statement of the grounds for the court\'s **jurisdiction**, unless court already has jurisdiction and the claim needs no new jurisdictional support; - \(2) a short and plain statement of the **claim** showing that the pleader is entitled to relief; and - What is a claim: A \"claim\" is a composite of the **operative facts** and the multiple **rights of action** arising out of those facts.\" (Ides) (Claim = Operative facts + rights of action) - **Operative facts:** constitute a coherent story in which the narrator describes an event or series of related events in which she claims to have suffered one or more injuries to her person and/or her property at the hands of the defendant - **Rights of action**: constitute the legal theories that may entitle her to some form of judicial redress - \(3) a demand for the relief sought, which may include relief in the alternative or different types of relief vii. \(b) Defenses; Admissions and Denials. - \(4) *Denying Part of an Allegation*. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest - \(6) *Effect of Failing to Deny*: An allegation---other than one relating to the amount of damages---is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided - Rule 9: Pleading Special Matters (Special Substantive Requirements) - Rule 10: Form of Pleadings (Look at Glannon 663-67) - Rule 11: viii. Certification \"to the best of the person\'s knowledge, information, and belief, formed after an inquiry reasonable under the circumstance\" \"factual contentions have evidentiary support or, if specifically so identified, will likely have evidence support after a reasonable opportunity for further investigation or discovery.\" - Rule 15: Amended & Supplemental Pleadings ix. \(a) Before trial x. \(b) During and after trial xi. © Relation back of amendments xii. \(d) Supplemental Pleadings Personal Jurisdiction ===================== What is personal jurisdiction? - Personal Jurisdiction: The authority of the court to issue a valid final judgement against a party to a lawsuit - The effect of entering a valid judgement is that the judgement gets full faith and credit 1. "\[F\]ull faith and credit shall be given in each State to the public acts, record, and judicial proceeding of every other state." Article IV, Section I 2. Congress requires federal courts to give full faith and credit to judgements in the States' court (28 U.S.C. § 1783) - This allows the US to function as a country. Without it, people could just brings the lawsuit to a new jurisdiction if they got an unfavorable result Attacking personal jurisdiction (two ways) 1. **Direct attack**: This is an attack in the [current case] - Two direct attacks i. D files 12(b)(2) MTD in case OR objects to PJ in Answer. Court finds PJ and case proceeds to judgement. If D loses, D appeals - In federal courts, there is no interlocutory appeal ii. OR D does not appear to defend. Court enters default judgement. D makes 60(b)(4) motion to set aside 2. **Collateral attack**: This is an attack in a [subsequent case] - In [Case 1], D does not appear to defend, causing the court to enter a default judgement against D - Plaintiff tries to enforce judgment issued in [Case 1], saying Case 1 judgement is entitled to full faith and credit - D responds by challenging the VALIDITY of the judgement in Case 1, claiming the Court in Case 1 lacked PJ, therefore not entitled to full faith and credit Requirements for Personal Jurisdiction The exercise of jurisdiction by a court requires both 1. **Authority by Law**: Exercise of PJ be **authorized by law** (i.e. a statute or rule) **AND** *Remember that the Constitution of the United States does not authorize State courts to exercise personal jurisdiction; the Constitution, through the Due Process Clause, merely limits the State courts' power to do so.* - **State Court:** i. **Tailored Statute ("specific act")**: A state law that specifically addresses the jurisdiction of state courts over non-resident defendants 1. These statutes carefully delineate the circumstances under which extraterritorial jurisdiction may be exercised. Tailored statutes can vary widely from state to state, but they **may** include provisions related to: - **Corporate activities:** For example, a tailored statute might specify that a corporation is subject to jurisdiction if it maintains a registered agent in the state, conducts business within the state, or has employees or offices located within the state. - **Tortious acts:** A tailored statute might allow for jurisdiction over non-resident defendants who commit tortious acts within the state, such as causing a car accident or defaming a resident. - **Contractual obligations:** A tailored statute might allow for jurisdiction over non-resident defendants who enter into contracts with residents of the state. ii. **Due Process Statute**: authorize a court of the state to assert long-arm jurisdiction to the maximum extent permitted by the Constitution. 2. This is where "minimum contacts", "purposeful availment", "relatedness", and "fairness" would come into play because the authority by law and permissibility under the Constitution analysis are now one and the same - **Federal Court:** iii. Two events that trigger personal jurisdiction under FRCP 4(k)(1): 3. \(a) When the state court to the jurisdiction can exercise PJ 4. \(c) When authorized by federal statute 2. **Conformity to Constitutional Limits**: the exercise of personal jurisdiction must be within the **Constitution's limits** on the court's authority (due process) - "*nor shall any state deprive any person of life, liberty, or property, without due process of law*" iv. **General Jurisdiction -- All Purpose Jurisdiction** 5. Individuals - Domicile (*in personam*) 6. Corporation - Incorporation - Headquarters v. **Specific jurisdiction -- case-specific jurisdiction** 7. Individuals & Corporations -- Traditional Bases for *In Personam* Jurisdiction (TB) - Consent, voluntary appearance - Tag / Personal Service in State - **Physical Presence**: The core principle established in *Pennoyer v. Neff* is that a court can exercise personal jurisdiction over an individual physically present within the forum state at the time of service. This aligns with the Rule of Territoriality, which posits that a state has authority over individuals within its borders. - Consent to service on agent in State 8. Individuals & Corporation -- Traditional Bases for *In Rem* Jurisdiction (TB) - *True In Rem*: property is attached at the outset of litigation; litigation is about the attached property; litigation binds any and all parties with an interest in the property, even without notice. - *Quasi in Rem* - *Quasi in Rem 1* (QIR1): property is attached at the outset of litigation; litigation is about the attached property; litigation binds only the parties receiving notice of the litigation. - *Quasi in Rem 2* (QIR2): property is attached at the outset of litigation; litigation is not about the attached property, rather the attached property is only a predicate to jurisdiction; litigation binds only parties receiving notice of the litigation and recovery is limited to the value of the attached property. - 9. Corporations Remember that you will need authority from the government that created the court where the case is filed. With regard to authority for personal jurisdiction in state court, be sure you can explain what a tailored statute and a due process statute are, and that you understand how they are different. Be sure you can explain the connection between analyzing the authority to exercise personal jurisdiction under a due process statute and determining whether the exercise of jurisdiction is constitutional. With regard to authority for personal jurisdiction in federal court, be sure you can identify the two events that trigger personal jurisdiction under FRCP 4(k)(1). In addition, be sure you can explain how FRCP 4(k)(1)(A), (B), and (C). Be aware of the connection between FRCP 4(k)(1)(A) and the analysis of personal jurisdiction in state court. - Traditional Bases / Rule of Territoriality - *In Rem* i. ***True in Rem***: property is attached at the outset of litigation; litigation is about the attached property; litigation binds any and all parties with an interest in the property, even without notice. ii. ***Quasi in Rem:*** The exercise of quasi in rem jurisdiction is subject to the standards of the minimum contacts analysis. *Shaffer v. Heitner, 433 U.S. 1986 (1977).* 1. ***Quasi in Rem 1*** (QIR1): property is attached at the outset of litigation: litigation is about the attached property; litigation binds only the parties receiving notice of the litigation. 2. ***Quasi in Rem 2*** (QIR2): property is attached at the outset of litigation; litigation is **[not]** about the attached property, rather the attached property is only a predicate to jurisdiction; litigation binds only parties receiving notice of the litigation and recovery is limited to the value of the attached property - - *In Personam* iii. Domicile iv. Voluntary Appearance / Consent v. Tag - Tag or transient jurisdiction is not limited by the minimum contacts analysis, so long as the defendant is voluntarily and knowingly within the forum. *Burnham v. Superior Court, 495 U.S. 604 (1990).* vi. Consent to Service on an Agent