Civil Policy and Procedure Spring 2005 Outline
Chapter 7 - Pleadings and Judgments Based on Pleadings A. Who Writes What With What Historical Overview 1.) Common Law Pleading 2.) Code Pleading - CA and NY - Emphasis on pleading the facts 3.) Notice Pleading - Notify the nature of the claim but no specifics 4.) All Other Juris follow federal rules - Less detail than Code Pleading Plaintiff writes: Complaint Elements: - Rule 8 1.) Jurisdiction (PJ or SMJ) 2.) Statement of Facts and Cause of Action a.) Some cases need heighted specificity under Rule 9 3.) Prayer for Relief a.) Demanding damages Form of Complaint & other Pleadings - Rule 10 1.) Captions with Party Names, Docket #, Title of Action, Name of Court 2.) Each Allegation must be in separate Numbered Paragraphs 3.) May incorporate by Reference. 4.) Rule 8(e) Pleading Inconsistent Facts and Alternative Theories is allowed. 5.) Rule 11 - Honesty in all claims and pleadings - Must have evidentiary support 6.) Specificity with regard to: condition precedent & special damages Voluntary Dismissal Until Answer or Motion for Sum. Judgement filed a claimant may voluntary dismiss a filing. After it must file a motion. Involuntary Dismissal i. For Failure to Prosecute, comply with rules of Fed Procedure, or any order of the court ii. It is an adjudication upon the Merits Miscellaneous Motions Motion to Strike - When the D's defense is patently frivolous Defendant's Options in Response 1. The Answer a. Responses the the Plaintiff's Allegations - w/in 20-60 days i. Admissions - if not denied then deemed admitted ii. Denials General Specific - Fraud, Incapacity Lack of Knowledge or Information b.Affirmative Defenses (compulsory) Assumption of the Risk Comparative Negligence SoL and SoF c. Cross Claims by Defendant 1. Motions (attacking the complaint) a. Pre-Answer Motions - Within 20 days of complaint filing
I. If granted then Complaint is dismissed ii. Except for a motion for more definite statement b. Pre-Trial Motions I. Disfavored Defenses (lost if not pled) Must all be consolidated into one motion No Personal Jurisdiction Improper Venue Insufficient Service of Process Failure to state a Claim ii. Favored Defenses (can plead anytime) Legal Deficiency 1. General Demurrer (12(b)6 motion) I. Failure to state a claim ii. Address one single issue on insufficiency iii. Can be filed anytime iv. Can be granted with leave to amend 2. Factual or Format Deficiency I. Code Pleading (?) ii. Federal Rules of Pleading iii. The Common Counts 3. Failure to meet heightened specificity requirements i. When pleading Fraud or Mistake must give specific facts, defense o 4. Failure to Join a Neccesary Party 5. Lack of Subject Matter Juris. 6. Motion for Judgement on the Pleadings iii. Summary Judgement Elements Is there a genuine issue of material fact? Burden of Proof on moving party: 1) It has burden of production of facts 2) Opposing Party then has burden to produce contradicto 3) Moving party has burden of persuasion to show it deser
Plaintiff - May move 20 days after complaint or upon Defendant moving the same Defendant - May move with or before filing an answer. May be made in discovery if one party fails to extablish the existence of a critical iv. Miscellaneous Motions 1. Motion for a more definite statement of the claim 2. Motion to strike certain terms from the record (12(f)) 4. Failure to Respond: Default and Default Judgement Entry of Default A. If a party fails to plead or otherwise defend, the clerk must enter the party's default. Judgement by Default B. If there is a prior Entry of Default, a clerk may enter a default Judgement, if: 1. The claim is susceptible to reliable compution 2. The Defendant has never appeared, and 3. Is not an infant or incompentant C. Otherwise a Default Judgement must be handled by the court Elements:
1. If Defendant ever appeared, 2. Service of Notice 3 days prior to Judgement Damages: Limited to amount requested in pleadings E. Amended Pleadings 1. Basic Principle Under Rule 15(a) May amend once if before responsive pleading served 2. Amendment Under 15(b)Court may allow an initial pleading to be amended even after a response is filed to: A) reach the merits B) Add an Issue during trial based on new evidence C) Add an issue not included in pleadings but expressly or implicitly consented to by parties
3. Amendement to the Statute of Limitiations Under Rule 15 ( c ) a. Adding a new claim Even if the SOL has run, if the new claim arises from the original claim we will relate it back to the original filing date to defeat SOL. b. Amendment Changing a Party Will relate back to the original filing date is: 1) Safe transaction or occurance 2) A new party is identified, and: i. Before SOL expired the new party had actual notice of a lawsuit ii. The new party knew or should have known a claim would have been made but against it. F. Supplemental Pleadings 1. Pleadings may be amended for events occuring after original pleadings. 2. Must set out the the events that have happened since 3. The court may specify when opposing party will have to respond G. Rule 11 and Other Devices 1. Rule 11 - Applies to pleadings but not discovery a. Must be honest in Pleadings b. May be in violation if plead don't know but should have known c. attorney must sign all pleadings - representing its truthfulness based on reasonable inquiry. 2. Sanctions a. Sanctions shall be limited to what is sufficient to deter repitition Chapter 8 - Discovery A. To elicit the facts surrounding the action i. Upon motion by a party the court must hold a discovery conference ii. Objections to Discovery Requests must show why it is burdensome and objectionable B. Overview of the Discovery Devices 1. Required Initial Disclosures (Rule 26(a)(1)) (No waiting for a request) i. People likely to have discoverable info ii. Relavent Docs, Data and Things in posession that are pertinent iii. All within 14 days after Discovery meeting Form of Disclosures: a) In writing, signed, and delivered b) promptly filed w/court 2. Depositions (Rules 30, 31) - Oral or written interview
3. Interrogatories (Rule 33) - Questionairre that is written 4. Production of Documents and Things (Rule 34) i. Things must only be in control or custody of party ii. Must specify with reasonable particularity ii. Non-Parties may be compelled to produce documents under Rule 45 5. Medical Examination (Rule 35) i. Examinations may only be given to parties ii. Must show good cause iii. Attorney's may accompany clients unless there is compelling reason to expell them. 6.Requests for Admission (Rule 36) i. Regarding Statements of Fact ii. Applicability of Law to Fact iii. Truth of Opinions and Documents iv. If NO reply in 30 days then admission considered given v. Responding party must be specific in admissions and denials vi. Admissions good only for action at hand. vii. Admissions may be withdrawn if it will subserve the merits of the action C.Scope of Discovery 1. General Scope Any matter that is not priveleged and relavent to the case 3. Privileged Material i. Net Worth 4. Work Product i. Qualified Immunity for work of an attorney ii. Discoverable only is court convinced it is essential to other party's case, and iii. There is no other way to reasonably obtain it. 5. Experts i. All must be disclosed ii.If an expert is expected to testify then he must submit a comlete statement of opinion & exh iii. If an expert is not expected to testify, he is only subject upon a showing that no pratical means exists to gain the info the expert has. iv. Experts subject to depositions and interrogatories 6. Suplementation i. If a party learns that the disclosed information is inomplete or incorrect he is required to co E. Sanctions 1. Court may implement on own initiative 2. Opposing side may make a motion for sanctions CHAPTER 9 - Jury Trial 1) Basics a) A Party has a Right to a Jury trial on issues of Law (money or criminal), but not Equity b) Protected by 7th Amend. c) Cases that combine law and equity will have each issue decided seperately Whether or not it goes to a jury depends on the, i) custom ii) the remedy iii) Abilities and limitations of Juries iv.) The court will err on the side of Jury trial, and try jury portion first d) Civil cases in state courts have no fed. Right to a Jury
d) A party must request a jury, and waives its right if does not do so in 10 days of pleadings e) A court may still order a jury trial if no demand made 2) Who may serve on a Jury a) All of the age of majority except: i. Non Citizens ii. Non-English Speakers 3) Jury Composition a) Size = 6-12 depending on Juris b) In civil actions each side can excuse 3 prospective jurors without cause, except for race c) Examination of Prospective Jurors: Fed - commonly judges; State - Attorney's d) Attorney's may ask court to excuse jurors that show bias 4) Controlling and Second Guessing Juries and the Bench a) Judgements as a Matter of Law i. When evidence has been heard and no reasonable jury could find for one side ii. Must be moved for before Jury Deliberation iii. May also be made within 10 days of final judgement
1) Prior to judgement the following motions may end the trial: i) Directed Verdict - By court in a jury trial - NO reasonable minds can differ ii) Involuntary Dismissal - Same but in a bench trial iii) Even if Jury verdict rendered - Can be overrulled by JNOV (Judge. Notwithstanding the Ve iv) At bench trial JNOV equivalent is a Motion to amend the judgement v) All of the above test whether there is sufficient evidence to raise an issue for the jury vi) If all reasonable people cannot disagree then a directed verdict should be entered c) JNOV i. A party who has moved for a directed verdict at the close of all the evidence may move for ii. Same as directed verdict but after jury rendered verdict. b) Motion for New Trial R. 59 i. Can be granted on parties' motion or judges own motion ii. May be granted if: (1) judgement against clear weight of the evidence, or iii. (2) There were procedural errors made at trial
i. Lower Standard than Judgement as matter of Law ii. As to Some or all of the issues iv. Parties must file w/in 10 days of judgement v. A party facing the prospect of a new trial may accept a remittitur (reduction of judgement a vi. Remittitur amount may not be below maximum amount supported by the evidence
5) CHAPTER 11 - PRECLUSION DOCTRINES After a trial - A judgement precludes subsequent litigation as between parties in privity Used as an affirmative defense Claim Preclusion - aka - Res Judicata i. Precludes re-litigation of an earlier claim if it was determined on its merits by a court with proper jurisdi ii. Applies to claims actually litigated or that should have been litigated. iii. Binding on the parties and those in privity with them
Definition of a Claim i. Each right invaded, or ii. Each transaction or occurance (fed)
Claim Preclusion Doctrines Merger - If Juris. Views only 1 cause of action, recovery on part of total harm is total recovery as all harm Bar - In the same Juris, losing on that one cause of action bars recovery of other harms from same occu Issue Preclusion - aka - collateral estoppel i. Defensive use - Affirmative Defense in subsequent suit basically for failiure to Join. to preclude the Plaintiff from suing them in a separate lawsuit later. Said Differently: A non-party to a suit can use collateral estoppel to bind a party to the suit, keeping the non-party from being sued OR: when a party has had his day in court to sue - other parties can use collateral estoppel 2 Views: Some States Follow and Some Don't
ii. Offensive use - Subsequent Non-Party Plaintiff can use earlier judgement as a sword against the defe General Rule: Where P. Could have easily joined the first suit then offensive use is disallowed. Where the Original suit was not vigoriously contested 6) CHAPTER 14 - APPEALS 2 Types: After Final Trial judgement During the Trial - Interlocutory Appeal A) Final Judgement Rule: 1) Fed. Appeals Courts granted Fed. Subject Matter Juris. Over all final decisions of the trial courts B) Interlocutory Appeal - During Trial 1) Jurisdiction over any decision regarding an injunction 2) Jurisdiction over any controlling questions of law on which: i. The trial judge petitions the Appeals court, and ii. A decision would conclusively determine the disputed question ii. Substantial Grounds for reasonable minds differing exist. iii. And it will likely help terminate the case
3) Jurisdiction to hear Collateral Orders (important indendent issues that can't wait until the final judgem i. Appellate court will make conclusive decisions on, ii. Issues separate from the merits iii. That are unreviewable on final appeal after judgement 4) Catch all: The appellate court has discretion to take the appeal on any merits. C) Writ of Mandamous - When Appeals Court tells trial court to do something D) Writ of Prohibition - When Appeals Court tells trial court not to do something
2005 Outline
ntiary support
ke must give specific facts, defense of incapacity.
oduction of facts en has burden to produce contradictory facts burden of persuasion to show it deserves a directed verdict
or upon Defendant moving the same
o extablish the existence of a critical element
must enter the party's default. default Judgement, if:
onse is filed to:
consented to by parties
e original claim
ual notice of a lawsuit n a claim would have been made but for mistake of identity
sed on reasonable inquiry.
me and objectionable
s under Rule 45
mpelling reason to expell them.
merits of the action
other party's case, and
a comlete statement of opinion & exhibits ct upon a showing that no pratical
plete or incorrect he is required to correct
minal), but not Equity
in 10 days of pleadings
cause, except for race e - Attorney's
ry could find for one side
ble minds can differ
JNOV (Judge. Notwithstanding the Verdict) the judgement ce to raise an issue for the jury ted verdict should be entered
ose of all the evidence may move for JNOV
of the evidence, or
a remittitur (reduction of judgement amount). nt supported by the evidence
s merits by a court with proper jurisdiction
otal harm is total recovery as all harms merged. overy of other harms from same occurance.
or failiure to Join.
y from being sued parties can use collateral estoppel
dgement as a sword against the defendant in a later suit.
ensive use is disallowed.
final decisions of the trial courts
s that can't wait until the final judgement):
n any merits.