#11840 - Civil Procedure - Civil Procedure

Civil Procedure – University of Virginia School of Law

Pretrial

Pleadings:

1. Complaint (Rule 8)

   1. Procedure:

      1. Timing:

         1. File any time within the Statute of Limitations

         2. Service must be within 120 days of filing, can get extensions for good cause

      2. Substance: Must include...

         1. Grounds for Jurisdiction

         2. Grounds for Relief (state/federal law or common law claims)

            1. One claim per paragraph

         3. Demand for Relief

            1. Ex: money or injunctive order

            2. Can be in the alternative, regardless of consistency

            3. Must explicitly request punitive damages or other special damages

         4. Policy/Strategy:

            1. Don’t plead yourself out of court (admitting stupid things)

            2. Don’t just make legal conclusions

            3. Anticipate Defenses

            4. The lower the standard, the less likely amendments will be required

            5. Post-Twombly/Iqbal (Twiqbal): err on the side of more detail

            6. Time, place, people, events, harm done

         5. Twiqbal Standard to survive a Rule 12(b)(6)

            1. Standard: Facts plausible on their face.

               1. Must go beyond assertions and conclusions

               2. Plausible: “more than possible but less than probable”

               3. Two Step Analysis:

                  1. Conclusions and statements of law are taken out

                  2. Remaining facts are evaluated for whether they show sufficient grounds for relief.

               4. Unanswered Question: absolute or relative plausibility (on it’s own or compared to D)

            2. Major Concerns/Policy:

               1. Definition of plausible: must it be plausible on its face or must it be more plausible than the answer?

               2. Is this too strict for cases when there are informational asymmetries?

               3. Does this force people to put in facts that may help the defendant or to plead themselves out of court?

               4. Policy: Protect D from high discovery and settlement costs in cases where P has no plausible chance of winning,

            3. Old Conley Standard: Complaint should not be dismissed under 12(b)(6) unless it appears beyond doubt that P can prove no set of facts in support of his claim (Notice Pleading)

               1. If there was any way the claims were possible, things went forward.

         6. Rule 9(b): Fraud/Mistake/Condition 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

         7. Rule 9(f): Time and place are material when pleading a complaint.

         8. Rule 9(g) Must specifically plead special damages (punitive, etc.)

         9. See Rule 11 for sanctions (no requirement to swear a pleading under pains and penalties of perjury).

2. Filing and Service of the Complaint (Rule 4):

   1. Must serve court Summons and a copy of the complaint

   2. Must also include:

      1. Name of the court and parties

      2. Directed to the defendant

      3. Name and address of P’s attorney

      4. State time that D must appear

      5. Notice that failure to appear = default judgment (Rule 55)

      6. Signature of the court clerk

      7. Court’s seal

   3. Method of service (to individuals):

      1. Basics (Person, within US) By Hand

         1. By any adult (18) non-party

         2. May request marshal or court officer Rule 4(c)(3)

         3. Must be left with a person of “reasonable age” at the abode

         4. Must be delivered to D or to D’s abode

         5. Example: Mullane - can have two-tiered service for different classes in a class action, lower requirements if they are unknown beneficiaries of a trust (newspaper) only if they are practically impossible to identify/find.

      2. Outside the US - Person

         1. Can follow internationally agreed means of service (preferable)

         2. The foreign country’s means of service (less preferable), either by their rules or by letter rogatory (request from court to foreign court) or letter of request asking the foreign authority for direction

         3. Mail or in person, unless prohibited by the foreign country.

         4. Any other means not prohibited by international agreement (e.g. email) (must get approval from court)

         5. Example: RIO

            1. Email

            2. EIC mail service

            3. Service of attorney/representative (court must declare them an authorized agent first)

            4. Publication (only if they are practically impossible to identify/find)

            5. Appointed family member

            6. Television

         6. Test to apply: was the notice reasonably calculated under all the circumstances to appraise interests of interested parties of the pendency of the action and afford opportunity to respond?

      3. Government

         1. United States:

            1. Deliver copy of summons and complaint to US attorney in the district or a person in their office designated in writing OR by mail to the civil process clerk AND

            2. Mail copy to the Attorney General AND

            3. If challenging the order of a nonparty gov’t agency/officer, mail them a copy.

         2. US Agency/Corp/Officer/Employee

            1. Serve US as above

            2. Send copy of summons and complaint by mail to that agency/corp./officer/employee (can get a reasonable extension of time if AG or US attorney served in time)

            3. If the employee is being sued as an individual, serve US and serve that person according to individual rules (can get reasonable extension of time to serve the US)

         3. Foreign

            1. In accordance with 28 USC 1608.

         4. State/Local Government

            1. Deliver on CEO of government (governor, mayor) OR

            2. Follow state law

      4. Corporation

         1. Same way as an individual OR

         2. Serve officer, managing or general agent, or any other agent authorized by appointment or by law.

      5. Minors or Incompetent Persons

         1. Follow state law if domestic

         2. Follow outside the US rules excluding:

            1. Internationally agreed means

            2. In person or mail unless expressly proscribed by the country

      6. By Mail via Waiver of Service:

         1. If you waive you get 60 days from the date the request was sent to send your answer (90 if overseas)

         2. Waiving service does not waive right to object to personal jurisdiction or venue

         3. Addressed to D

         4. Include name of court

         5. Include copy of complaint, 2 of waiver, and prepaid means of returning

         6. Must show date sent

         7. Must give reasonable time to reply regarding waiver (30 days from date sent, or 60 if overseas)

         8. “First class mail or other reliable means”

      7. Rejection of the Waiver

         1. P obliged to serve by hand

         2. D will then have 21 days from hand service for answer/motion

         3. D must bear costs of service and attorney's fees of any motion required to collect service costs.

      8. You can use deception, but not criminal fraud (dressing up, concealing identity, inviting for a drawing/prize, etc.)

3. Answer (Rule 8 and 12)

   1. D has 4 options to respond: Answer, Rule 12 motion, Rule 56 summary judgment motion, take no action and accept default judgment.

   2. Rule 8 Procedure:

      1. Timing

         1. Can file motion, answer, or both in response to complaint

         2. If no waiver: 21 days to respond from date of service

         3. Government/agencies/government employees get 60 days to respond

         4. If serviced waived: 60 days if within U.S., 90 days if outside U.S. from when it was mailed

         5. If you file a motion instead of an answer you get 14 days to file the answer after getting notice of the court’s action on the motion

      2. Substance

         1. Short and plain terms of defenses to each claim. Majority: Twiqbal standard of plausibility applies.

         2. Admit, deny, or deny knowledge needed to answer each allegation

         3. Admissions or denials are binding

            1. May be amended if new info made available during discovery

         4. Failure to deny is treated as an admission

         5. Must raise all affirmative defenses

            1. If you don’t raise them here, must add them via amendment (within 21 days of service of your answer per Rule 15)

         6. Present counter facts not raised in complaint

         7. May state defenses in alternatives, regardless of consistency

      3. Service: Rule 5

         1. Must be served on every party, default to attorney

            1. If there are a lot of D’s, court can rule that not every pleading goes to every party.

         2. Method:

            1. Hand service

            2. Leaving at their office

            3. Leaving at their abode if no office or the office is closed

            4. Mailing it to last known address

            5. Leaving it with the court clerk if there is no known address

            6. Email if consented to in writing

            7. Any other means consented to in writing

   3. Rule 12 Procedure

      1. 12(b) Motions to Dismiss:

         1. Waiver: you waive your right to (2)-(5) if you do not raise them on your first response or under a permissive amendment under rule 15(a)(1) (within 21 days)

         2. Any 12(b): If court grants motion, it may:

            1. Dismiss with prejudice

            2. Dismiss without prejudice

            3. Order amendment

         3. (1) Lack of SMJ (can be brought at any time because it is a limit on the court’s power)

         4. (2) Lack of personal jurisdiction

         5. (3) Improper venue

         6. (4) Insufficient process

            1. Usually a clerical error; the judge just orders the pleadings to be redone instead of dismissing.

         7. (5) Insufficient service of process

            1. D was never served; service went to wrong address; etc.

         8. (6) Failure to state claim on which relief may be granted

            1. May be brought any time before trial

            2. May be based on insufficient facts, far-fetched facts, or legal insufficiency (no cause of action allowing for recovery for stated facts).

         9. (7) Failure to join required party under Rule 19

            1. May be brought any time before trial.

            2. Dismissal is under 12(b)(7), not under Rule 19

      2. 12(c): Motion for Judgment on the Pleadings (after pleadings are closed)

      3. 12(e): Motion for a More Definite Statement: used to be used against pro se plaintiffs or for vague claims, now obsolete due to Twiqbal standard for 12(b)(6)

      4. 12(f) Motion to Strike

         1. Redundant, impertinent, or scandalous/nonsense claims

         2. Prevents nonsense from being litigated

         3. Can be from complaint or answer

         4. Can be used against insufficient defense

      5. All Rule 12 motions must be resolved in a hearing before trial unless the court orders a deferral on action on the motion until trial.

4. Amending the Pleadings (Rule 15)

   1. Amendment as a Matter of Course (15(a)(1)):

      1. May amend your own pleading within 21 days of serving it

      2. If your pleading requires a response you may amend it within 21 days of receiving that...