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Civ Pro this week

Today

Complaints

Answers

Motions to Dismiss

Affirmative Defenses

Care and candor

Amending pleadings

Relating back

Thursday

Intervention pp. 658-673

M/C & short answer quiz Chapters 2, 13, 14, 15, 16

Bonus Q? re: intervention

No textbook or rulebook

Relax: no questions re: “how many days allowed…”

Complaints

A complaint cannot contain conflicting theories of liability

True or False

Rule 8(d) Pleading to Be Concise & Direct; Alternative Statements; Inconsistency.

(d) (1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

A complaint must contain a short and plain statement of the plaintiff’s case.

True or False?

(a) Claim for Relief. A pleading that states a claim for relief must contain…

(2) a short and plain statement of the claim showing that the pleader is entitled to relief;

Rule 8. General Rules of Pleading

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

True or False?

Leatherman v. Tarrant County, 507 US 163

In Conley v. Gibson, 355 U. S. 41 (1957), we said …

"[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."

We think that it is impossible to square the "heightened pleading standard" applied by the Fifth Circuit in this case with the liberal system of "notice pleading" set up by the Federal Rules.

Bell Atlantic v. Twombly, 550 US 544 (pp. 447-450)

Majority

“The famous observation from Conley has earned its retirement…”

We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.

Critique

Moving analysis of the overall merits of a claim – not just legal theories – into the MTD!

Plain vs. Particular

Rule 8. General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain…

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

Rule 9. Pleading Special Matters

(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally

The law is what the judge ate for breakfast.

-- Judge Jerome Frank

Digestive realism?

Ashcroft v. Iqbal 129 S.Ct. 1937 (opinion)

Majority on Pleading?

Plaintiff must plead and prove that the defendant acted with discriminatory purpose…

Mere legal conclusions are not entitled to an assumption of truth… they must be supported by factual allegations

Twombly is not a narrow decision; rather, it “expounded the pleading standard for all civil actions”

Was Twombly narrow?

Twombly-Iqbal

1. ELEMENTS Did the complaint identify the elements of the claim?

2. SUFFICIENCY Well plead? Do factual allegations for each element

include more than mere conclusory statements?

3. PLAUSIBILITY Is the complaint believable? Departing from rule of

inferences drawn in favor of the pleader

Answers

Upon receiving a complaint, a Defendant must either admit or deny each individual paragraph.

True or false

Rule 8(b) Defenses; Admissions and Denials

(1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim

asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

Rule 8(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.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(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.

If a Defendant fails to answer the complaint, the court must enter judgment and award the amount requested?

True or false

(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

Rule 55: Default

Rule 55. Default; Default Judgment

(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

(2) By the Court. In all other cases, the party must apply to the court for a default judgment. ... The court may conduct hearings or make referrals … when to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.

Motions to dismiss

Rhode Island College (RIC) calls you. Their security

guard was just served with a complaint against RIC for “interfering with an employment contract” between the plaintiff, Alaska University, and its former head basketball coach, Jay Smith. AU claims that RIC induced Smith to break his contract with AU by offering more money than AU could afford. The complaint, filed in the U.S. District Court for the District of Alaska, does not name Smith as a defendant.

Discuss: What defense theories might you assert?

What’s wrong with this complaint?

(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.

Rule 12: Motion to Dismiss What’s wrong with this complaint?

Count II of the Alaska University complaint alleges as follows:

12. Barry Bondy, an alumni booster for Alaska University who lives in Rhode Island, is a notorious meathead well-known for sharing his steroids with others in the gym. Upon information and belief, Mr. Bondy offered a sample vial of “bicep behemoth” to Mr. Smith.

13. RIC should be held accountable for Mr. Bondy’s actions.

Any more motions? 12(e)? 12(f)?

But wait, there’s more!

Goliath sues David for slander. David answers on the merits. Six weeks later, David realizes

that Goliath was not properly served.

A. David should move to amend his answer under Rule 15, and the judge has the discretion to grant the motion.

B. David may file a motion for judgment on the pleadings, claiming that jurisdiction is improper.

C. David may file a motion to dismiss for improper venue, since he did not file a pre-answer motion.

D. David has waived the defense of improper venue.

(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:

(B) failing to either:

(i) make it by motion under this rule; or

(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

Rule 12(h), FRCP

(g)(2) Limitation on Further Motions. Except as

provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion

Rule 12(g), FRCP

Waiving defenses?

Waivable

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

Unwaivable

(1) lack of subject-matter jurisdiction;

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

(7) failure to join a party under Rule 19.

Affirmative defenses

To raise an affirmative defense, a defendant must plead with particularly.

True or false

Aff.Def Analysis

2nd Fraud? Particularity? Replead

3rd Aff.def requires admission not bunch of denials. Replead

5th Long list not adequate, need basis for defenses. Replead

6th Cant reserve rights strike with prejudice

Reis Robotics v. Concept Industries,

462 F.Supp.2d 897

Affirmative defenses

(8)(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

accord and satisfaction;

arbitration and award;

assumption of risk;

contributory negligence;

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.

An affirmative defense can be waived.

True or false

Care and candor

The judge is asking hard questions.

Which of these defenses will work?

1. I just didn’t know, your Honor.

2. My paralegal e-signed it and e-filed it with my Bar number, your Honor.

3. But the verified complaint is signed by my client, your Honor.

Your complaint contains serious falsehoods.

(b) Representations to the Court. By presenting to the

court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

Rule 11: FRCP Signatory is accountable.

The Florida Ethics committee opined that “an

attorney should not under any circumstances permit nonlawyer employees to sign notices of hearing” citing the lawyer’s obligation to comply with rules of court and to avoid assisting in the unlicensed practice of law.

Ethics opinion 87-11

... a lawyer may permit a nonlawyer employee to affix

the lawyer’s electronic signature using the format indicated by subdivision (c)(1)(C) above. The committee cautions that although the lawyer may delegate the electronic signing of the document under the rule of judicial administration, the lawyer must “review and be responsible for the work product” as required by Rule 4-5.3(c). Thus, lawyers may only direct a nonlawyer to affix the electronic signature permitted by the rule after reviewing and approving the document to be filed.

Ethics opinion 87-11 (2014 amendment)

Explain these terms.

American Rule

Fee shifting

Hays v. Sony 847 F.2d 412

Reasonable inquiry

An objective determination of whether a sanctioned party’s conduct was reasonable under the circumstances

Less experienced attorney?

Then study more!

By asserting claims without inquiring whether they have a plausible grounding in law and fact, a lawyer can impose on an adversary substantial costs that could have been avoided by reasonable pre-pleading inquiry. page 530 at 2nd full para

Why is fee shifting fair?

An attorney signs and files a complaint in federal court based on diversity jurisdiction. One week later, an appellate court from the relevant state issues an opinion directly adverse to the plaintiff’s case. Failure to withdraw the matter will result in Rule 11 sanctions.

True or false

Rule 11: reasonable caution

Facts

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

Law (2) the claims, defenses,

and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

Frivolous? Improper?

Hunter v. Earthgrains Co. 281 F.3d 144 (p.531)

What is a frivolous legal contention? Objectively unreasonable

Absolutely no chance of success under existing precedent

Creative claims may merit dismissal, not punishment

Sussman v. Bank of Israel, 56 F.3d 450 (p.545)

Improper purpose? Can’t use a warning letter as

evidence of improper…

Beware bad policy

Is warning letter bad?

Isn’t no warning worse?

Florida on duty of care

Professionalism Expectations

4. Fair and Efficient Administration of Justice. The just, speedy, and inexpensive determination of every controversy is necessary to preserve our system of justice.

Expectations:

4.11 A lawyer should stipulate to all facts and principles of law that are not in dispute and should promptly respond to requests for stipulations of fact or law.

4.12 After consulting with the client, a lawyer should voluntarily withdraw claims and defenses that are without merit, superfluous, or cumulative.

Fla. Stat. §57.105: Attorney’s

fee; sanctions for unsupported claims

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

Amending pleadings

Before an answer is filed, a complaint cannot be amended without court permission.

True or false

(a) AMENDMENTS BEFORE TRIAL.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Rule 15. Amended and Supplemental Pleadings

If a plaintiff attempts to amend a complaint before trial, but after the date upon which the statute of limitations expired, the case must be dismissed.

True or false

Rule 15

Amendments Before Trial

(1) Amending as a Matter of Course.

(2) Other Amendments.

(3) Time to Respond.

The amendment relates back to the original pleading if:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) 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; or

Fairness & “relate back”

Beeck v. Aquaslide 562 F.2d. 537 (p.565)

Leave freely given when justice so requires

Court considered: Prejudice?

Futility?

Repeated failures to fix?

Bad faith?

Undue delay or lacking in diligence?

Bonerb v. Caron Foundation 159 FRD 16 (p. 581)

Factors considered: Yes, different legal claim

But original complaint had reference to “negligent counseling care”

No discovery yet

No undue delay

No bad faith

Futility

A new party can be added to an amended complaint, even after the statute of limitations has expired, as long as the original complaint was filed before the statute of limitations expired.

True or false

Krupski v. Costa 560 US 538 (p. 584)

Key Facts & Issue

Plaintiff trips over camera cable on cruise ship.

Defendant told Plaintiff in its answer of the proper Defendant, listed on the cruise ticket.

Belatedly, after SOL, Plaintiff seeks to adds correct “Costa” party.

Relevant Rule

Rule 15(c)(1)(C), FRCP the amendment changes the party or the naming of the party against whom a claim is asserted, [within 4(m)]… and the party to be brought in by amendment: (i) received such notice of the action

that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Krupski v. Costa 560 US 538 (p. 584)

Should defendant get relief?

Defendant told plaintiff

Ticket named the correct defendant

Plaintiff delayed

Should plaintiff get mercy?

Knowledge of existence ≠ absence of mistake

Court empowered to grant leave, freely given

When justice so requires

Made changes within timeframes of scheduling order

Costa had constructive knowledge

(m) TIME LIMIT FOR SERVICE. If a defendant is not

served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Rule 4(m)