CIV PRO lecture notes_Eisenberg_UMD Carey PDF

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CIVIL PROCEDURE OUTLINE A. RULES:  PLEADINGS i. Rule 8(a) 1. A statement of subject matter jurisdiction 2. A demand for relief (damages, injunction, etc.) 3. A short and plain statement of the claim a. Historically, Conley v. Gibson: (“Keep it Simple Stupid”) A complaint is sufficient as long as the plaintiff sets forth an assertion upon which relief may be granted, and specific, detailed recitations of fact are not necessary to survive a motion to dismiss. b. Twombly (2007) plausibility standard: Plaintiff in federal court must plead more than a mere possibility, must plead enough facts to state a claim to relief that is plausible on its face, that crosses the line from conceivable to plausible. c. Iqbal (2009) – short and plain statement, no conclusory allegations: i. Step 1: the court must accept as true only the non-conclusory allegations of the complaint ii. Step 2: court must determine whether these well-pleaded (non-conclusory) allegations plausibly give rise to an entitlement to relief in light of the elements of the claim 1. Courts must draw on its judicial experience and common sense. 2. If the facts do not permit inference more than mere possibility of misconduct or are equally consistent with lawful conduct, then the complaint fails the plausibility test d. “Twiqbal” – two step “plausibility analysis the plaintiff must present facts supporting a plausible claim. i. Ignores conclusions of law and focuses on allegations of fact. ii. Those facts must support a plausible claim not just a possible claim. iii. To determine plausibility; the judge uses their own experience and common sense ii. Rule 9(b) + Rule 9(g) – heightened pleading requirement from Twiqbal; you must give the details if your claim is about fraud, mistake, or special damages.  DEFENDANT RESPONSES MOTIONS i. Rule 12 – defendant can respond by motion or by answer 1. When must you respond? No later than 21 days after being served with process or risk default judgment. If the defendant waives service of process under rule 4d by filling out a waiver form then they have 60 days, from the date the plaintiff mailed the form to respond. a. Motions – not pleading; a request for a court order i. 12(e) – motion for more definite statement (defendant cannot respond because the complaint is unintelligible) ii. 12(f) –motion to strike; can be brought by any party (scandalous, irrelevant, etc. allegations) iii. 12(b) – seven defenses that allows you to make a motion to dismiss on any of those seven (asserted in a motion or plug them into the answer as an affirmative defense) 1. 12(b)(1) – subject matter jurisdiction 2. 12(b)(2) – personal jurisdiction 3. 12(b)(3) – improper venue 4. 12(b)(4) – improper process (summons + copy of the complaint) 5. 12(b)(5) – improper service of process (the documents were fine, but they were not served properly)

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6. 12(b)(6) – failure to state a claim upon which relief can be granted 7. 12(b)(7) – failure to join an indispensable party iv. 12(g) + (h) – Rules 1. 12(b) (2-5) – must be put in your first Rule 12 response or else they’ll be waived 2. 12(b)(6) +(7) – can be raised for the first time at any point through trial; they don’t have to be in your first Rule 12 response 3. 12(b)(1) – subject matter jurisdiction is never waived. b. Answer – A Pleading i. 8(b) – the defendant must respond to the complaint; go through line by line and respond to what the plaintiff said (admit, deny, lack sufficient information to admit or deny under rule 8(b)(5)) 1. Failure to deny constitutes an admission; explicitly say “deny” ii. Raise Affirmative Defenses as specified in 8(c)(1): accord and satisfaction; arbitration and award; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.  AMENDMENTS AND SUPPLEMENTAL PLEADINGS i. Rule 15 1. Does 15(a) apply? a. Plaintiff has a right to amend within 21 days after defendant serves their first Rule 12 response. b. Defendant has a right to amend within 21 days after serving their answer (if defendant forgot an affirmative defense, they can add it before the 21 days) i. There’s an “oops” clause that allows for 14 additional days c. If you no longer have a right to amend, you can ask the court for permission known as leave to amend as justice so requires 2. 15(b) – Variance – where the evidence at trial does not match what was pleaded. Can only come up at trial a. 15(b)(1) – party may ask for permission 3. 15(c)(1)(a) – amendment after the statute of limitations is up; this is only allowed if there’s a relation back. Then the amendment is treated under the same conditions as the original complaint a. Amend to add a claim i. 15(c)(1)(b) – you can get relation back if the new claim under an amendment arises from the same transaction, our occurrence. b. Amend to change the defendant i. 15(c)(1)(c) – sued the wrong the defendant and the right party knew about 4. 15(d) – Supplemental pleadings; when a party wants to add something that happened after the case was filed  SANCTIONS i. Rule 11 applies to all written documents submitted to the court; a continuing certification; a motion for sanction cannot be filed right away (21 days must be given to the other side to fix) 1. Rule 11(b) – Lawyer Stop and Think Rule (reasonable investigation, non-harassment, truthfulness, and non-frivolity in papers presented to the court) 2. 11(c) – safe harbor process; a chance to fix Rule 11 violations before a motion is submitted to the court (21 days to fix the problem) a. 11(c)(2) – party initiated  Which documents does Rule 11 cover? Pleadings, Motions, and other papers

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 Who needs to sign pleadings and motions? Attorney, or party if self-represented  What does attorney signature certify? 1. Non-harassing, proper purpose 2. Nonfrivolity 3. Reasonable investigation into the facts and law 4. Truthfulness (evidentiary support for allegations and denials, or reasonable belief subject to further investigation or discovery)  Who is responsible for violations? Attorney who signed the pleading, attorney’s law firm, the client.  Subjective or Objective test? A mix of both. Subjective: 11b says attorney is certifying to the best of the person’s knowledge, information, and belief. Objective: formed an inquiry reasonable under the circumstances, warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.  Court Initiated? Court may impose sanctions sue sponte without a motion, not subject to the safe harbor process, uses “show cause” process which gives attorney chance to explain before the sanction is imposed Fed. R. Civ. P. 11(c)(3)  JOINDER 1. The defendant suing the party that brought the claim against them 2. Bring the claim now or you could be barred from bringing the claim later 3. Discretionary Prohibition of Joinder. The court is likely to allow joinder when: a. There are similar legal and factual issues b. Same evidence and arguments c. No prejudice to parties or confusion for the jury d. No burden on the Court ii. Rule 20(a) – PERMISSIVE JOINDER OF PARTIES a tool available to the plaintiff when they are drafting the complaint and want to have multiple plaintiffs or multiple defendants (Cooper v. Fitzgerald) 1. 20(a)(1) – for multiple co-plaintiffs: claims must arise from the same transaction and occurrence (t/o); their claims raise at least one common question 2. 20(a)(2) – multiple co-defendants: see above ^ iii. Rule 18(a) – Totally separate claims can be asserted in the case but there must be subject matter jurisdiction. (The pile it on rule). iv. Rule 21 – Misjoinder and Nonjoinder of Parties: Not grounds for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.  NECESSARY AND INDISPENSIBLE PARTIES i. Rule 19 – Necessary and Indispensable Parties (Joint tortfeasors are not necessary or indispensable parties 1. Is the absentee party necessary? The answer is yes if we’ve met the requirements in Rule19(a)(1): a. (a)(1)(A): Without the absentee party, the court cannot grant complete relief amongst the parties (an efficiency issue) b. (a)(1)(B):Absentee’s interest may be harmed in a practical way if they’re not joined or the absentee’s interest may subject the defendant to multiple or inconsistent obligations 2. Is joinder of the absentee party feasible? a. Yes, if there’s personal jurisdiction b. Yes, if bringing that party in does not mess up diversity jurisdiction c. A legitimate objection to venue 3. What happens when Joinder of Absentee is necessary but not feasible? Rule 19(b): a. The court can either: i. Dismiss the case 1. The required person is deemed indispensable ii. Proceed without the required person

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1. The judge makes this decision based on equity and good conscience b. Factors for the judge to consider: i. The extent to which the judgment rendered in person’s absence might prejudice that person or the existing parties ii. Extent to which prejudice can be lessened 1. Protective provisions in the judgment 2. Shaping relief 3. Other measures iii. Whether judgement rendered in the persons absence would be adequate; and iv. Whether the plaintiff would have an adequate remedy is the action were dismissed for nonjoinder 4. Supreme Court Factors when considering indispensability: a. The interest of the outsider whom it would have been desirable to join b. The defendant’s interest in avoiding multiple litigation, inconsistent relief, or sole responsibility for liability it shares with another c. The interest of courts and the public in complete, consistent, and efficient settlement of controversies d. The plaintiff’s interest in having a forum.  CLASS ACTIONS i. Rule 23 – where a representative sues on behalf of a group (“a class”) 1. 23(a) – the prerequisite: in every class action you must show four things: a. Too numerous for practical joinder (numerosity) b. There’s a question in common to all the class member (commonality) (Walmart: There was no commonality among a class of 1.5 million plaintiffs who alleged sex discrimination according to the court because the court said they were discriminated against with different acts of discrimination; there was no singular discrimination. The court said that in evaluating commonality the focus should be on common answer; the answer should be able to create an answer for every class member at once. c. The representative’s claim must be typical of the class (typicality) d. The representative will adequately represent the interests of the class (adequacy of representation) 2. 23(b) – Types of Class Actions a. 23(b)(1) – a series of individual cases would create a risk of inconsistent decisions or otherwise impair the class member’s interests. b. 23(b)(2) – defendant has acted or refused to act on grounds that apply to the whole class, so that class-wide relief is warranted c. 23(b)(3) – common questions of law or fact predominate over any questions affecting only individual class members, and a class action is superior to other methods. Tend to be cases in which the class members’ claims are related, but not as closely as in the other types 3. The case is not a class action until the court certifies it as such; the rep makes a motion to certify the class, if granted then it becomes a class action. Then the judge appoints class counsel under 23(g) a. Define the class b. Identify the class claims or issues c. Appoint class counsel 4. Notice of pendency – you’re a member of a class in a b(3) class the court must give individual notice to all members reasonably identifiable. Individuals have the option to opt out and if they don’t, they’re bound by the verdict of the case.

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a. Who is bound by a class judgment? All members except those who opt out of a B3 class. No right to opt out of a B1 or B2 (they must be included) 5. 23(e): Settlement or dismissal of a certified class must be approved by the court 6. Have to satisfy subject matter jurisdiction for a class action trying to satisfy diversity? a. For citizenship you look only at the rep, not the class members b. For AIC, the rep’s claim has to exceed $75K to satisfy diversity jurisdiction  COUNTERCLAIMS and CROSSCLAIMS (Parties that are already in the case) i. Rule 13 – Counterclaim: a claim against an opposing party (against someone who has sued you; filed with your answer) 1. 13(a)(1) – Compulsory Counterclaim (“Now or Never”) one that arises from the same transaction or occurrence as the plaintiffs claim (you must assert in the present case or else you waive the claim). a. Test for same transaction or occurrence i. Are the issues of fact and law raised by the claim and counterclaim largely the same? ii. Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim iii. Will substantially the same evidence supports or refute plaintiffs claim as well as defendants’ counterclaim iv. Is there any logical relation between the claim and the counterclaim? 2. 13(b) – Permissive Counterclaim (“Let’s get it all on the table at once”) one that does not arise from the same transaction or occurrence as the plaintiffs claim (you don’t have to assert it in this case and can raise it at another time). 3. Rule 13(g) Crossclaim: A claim against a co-party and it must arise from the same transaction or occurrence (crossclaims are never compulsory). Suing your “friends” on the same side of the “v.” a. This is only possible if the plaintiff used Rule 20 to join multiple defendants b. Plaintiff  to Co-Plaintiff c. Defendant  Co-Defendant 4. Rule 13(h) Joining Additional Parties to counterclaim/crossclaim – If you have a counterclaim or a crossclaim you can add additional parties and then that party has the ability to issue a counterclaim as well.  THIRD-PARTY PRACTICE (IMPLEADER) (Joining Someone New) i. Rule 14 – The defendant brings someone new into the case; third-party defendant “TPD”; the TPD may be liable to the defendant for the plaintiffs claim against the defendant. If defendant loses, and has to pay the judgment to the defendant, then the defendant can argue that there’s a third party that needs to be there too. 1. Indemnity – shifting the burden entirely 2. Contribution – shifting the burden partially ii. Steps for Impleader: 1. File/ Serve third-party a complaint a. 14-day rule b. Court balances efficiency against prejudice iii. Impleader Situations 1. Insurance agreements 2. “Contribution” statutes for joint tortfeasors (Joint and Severally Liability) 3. Contracts with indemnification clauses 4. Some state law or doctrine that entitles someone to indemnification

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 INTERVENTION (joining someone new) i. Rule 24 – a non-party that wants to be in the case and brings themselves into the case; the application to intervene must be timely and the absentee decides which side of the case to come in on (plaintiff or defendant) 1. 24(a)(2) - Intervention of right: a right to intervene if your interest may be harmed if you’re not joined a. Timely application b. An interest relating to the property or transaction which is subject of the action c. That the disposition of the action may as a practical matter impair or impede his ability to protect that interest d. That the interest is not adequately represented by existing parties. 2. 24(b)(2) – Permissive intervention: show that your claim or defense and the pending case have at least one common question. a. Court may permit anyone to intervene: i. Who is given a conditional right to intervene by federal statute? ii. Has a claim or defense that shares with the main action of question of law or fact. ii. Wade v. Goodschmidt: an interest to satisfy the requirement of Rule 24(a)(2) must be significant. 2. Must be direct rather than contingent. 3. Must be based on a right which belongs to the proposed intervenor rather than the existing party to the case.  INTERPLEADER i. Rule 22, 1335 – mostly insurance claims; things that are indivisible 1. When an individual is unsure about who something really belongs 2. Take the property file it in court, bring everyone who might be involved for the court to decide 3. Statutory Interpleader- involves superpower jurisdiction, national jurisdiction  Rule 42 – consolidation and separate trials  DISCOVERY i. Rule 26: An effort to avoid trial by ambush 1. 26(a)(1) – information that has to be turned over before the 26f conference. Identify people with discoverable information that you may use to support your case. You must give copies or description of things that you may use to support your case. Only if it will be used to support your case. a. Privileged Information: attorney-client privilege, fifth amendment right against selfincrimination, Priest-penitent (i.e. any spiritual advisor), Doctor/psychotherapist-Patient, spousal, other privileges recognized in state or federal law. 2. 26(b)(1) – (Kubicki v. Medtronic: court may define and limit the scope of permissible discovery). (WWP, Inc. v. Wounded Warriors: a court may deny a party’s overly broad and unduly burdensome discovery request if the party has made no effort to limit the scope of the request). (Trask v. Olin Corporation: a party may obtain discovery regarding any nonprivileged matter relevant to a claim or defense so long as the benefit of production outweighs the burden or expense). 3. 26(b)(3) – (Hickman v. Taylor: Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda and personal recollections.) ii. Rule 27 – 32: Rules governing depositions iii. Rule 33 – Interrogatories iv. Rule 34 – Request for the production of documents v. Rule 35 – Physical and Mental Examinations vi. Rule 36 – Request for admissions

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vii. Rule 37 – Failure to Make Disclosures or to cooperate in Discovery; Sanctions  CIVIL JURIES i. Summary Judgment 1. Rule 56 (Motion for Summary Judgement) a. Filed after discovery b. Supported by documentary evidence (affidavits, deposition transcripts, documents) c. Threshold legal issue: As a matter of law, is there sufficient evidence from which a jury can make a rational factual determination in favor of the plaintiff (non-movant) d. (Celotex Corp v. Catrett): i. No requirement in Rule 56 that the party moving for summary judgment must support the motion with affidavits or other materials negating the plaintiffs claim. ii. Sufficient if the moving party “points out to the district court that there is an absence of evidence to support the non-moving parties claim” e. (Matsushita Electric Industrial v. Zenith Radio) Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. B. CHOICE OF AN APPROPRIATE COURT: PERSONAL JURISDICTION i. Can the plaintiff sue the defendant in this state? ii. The court must have power over something: 1. The defendant himself or 2. The defendant’s property iii. STATUTORY POWER QUESTION: Did the state give the courts permission to haul the defendant into its courts under its long-arm statute (LAS)? Is the LAS an enumerated statute (limited to specific circumstances; NY) or is it a constitutional max (to the extent of Due Process; CA) statute? Be sure to analyze the statutory permission question, AND THEN; iv. CONSTITUTIONALITY QUESTION: Assuming LAS permits exercise of PJ, would that the forum state’s exercise of PJ over defendant accord with the Due Process Clause? In analyzing the constitutionality of the exercise of personal jurisdiction over the defendant, consider whether grounds exist for general jurisdiction or specific jurisdiction. Both could be applicable, but the analysis is different for each so tell the court/reader which one it is and do the analysis accordingly. 1. General jurisdiction is about the defendant’s relationship with the forum rather than the defendant’s in-forum activity that relates to or gives rise to the claim. In the general jurisdiction analysis, for individuals, it is the state of domicile (where they live and intend to stay); for corporations, we shall see that it is where the corpora...