CivPro: Class 13-24

A written document filed in court and served on the parties in which a litigant asserts claims or states defenses, thereby setting forth the basis for relief or response

Complaints, answers to complaints or counterclaims, or court-ordered replies to answers

Requests for court orders. These must be in writing (unless made during hearing or trial), state with particularity the grounds for seeking the order, and state the relief sought

1) Short and plain statement of the grounds for the court's jurisdiction (unless already established)
2) Short and plain statement of the claim showing that the pleader is entitled to relief
3) Demand for the relief sought

Pleadings must be construed "so as to do justice".

Established that complaints are meant to provide notice and should only be dismissed for failure to state a claim where "no set of facts" could support the claim. The notice pleading standard is now outdated.

Established that complaints do not require great particularity, but rather “short and plain” statements to provide sufficient notice to the defendant of the action.

There is a heightened standard for fraud or mistake claims, which must be stated with particularity (specific facts). Conditions of mind like malice, intent, and knowledge may be alleged generally.

Fraud and mistake

False, as evidenced by Swierkiewicz

Established that complaints need plausibility rather than possibility to survive dismissal. Here, a putative class action by a local telephone company failed to adequately state a claim under the Sherman Act because the court found their accusation of parallel conduct was merely a conclusory "formulaic recitation of the elements".

Established that the Twombly plausibility standard was not meant to be exclusive to antitrust claims, but rather, all civil actions, retiring Conely's "no set of facts" standard. Here, the court found that there was an "obvious alternative explanation" for the alleged discrimination suffered by the plaintiff.

"Common sense" under the judge's perspective lens

True

False

Special damages (lost profits, medical expenses, etc.) must be specifically stated in the complaint, otherwise evidence of those damages would be barred at trial.

-You've failed to plead enough detail to satisfy your pleading burden
-Even if everything you allege is true, no legal liability would attach

After the pleadings are closed, a party may move for judgment on the pleadings. The court is to assume all well-pleaded facts in the non-moving party’s pleadings are true. The court grants judgment only if the moving party is entitled to JMOL.

That there is no factual dispute and that the movant is entitled to JMOL

They convert to motion for summary judgment under Rule 56

Allows a party to move for a more definite statement when a pleading is too vague or ambiguous to respond.

A final judment on the merits, meaning that the claim can't be refiled in any court.

The plaintiff may amend or refile the complaint, since the dismissal was not on the merits.

When responding to a pleading, a party must state in short and plain terms its defenses to each claim asserted against it, and either admit or deny the allegations

Yes, Rule 12(f) allows judges or parties by motion to strike redunant, immaterial, or scandalous matter in a pleading. This includes content in complaints and answers.

If a particular allegation isn't denied, it is treated as an admission by default.

If a party doesn't want to deny all allegations, it must either 1) make denials of specific allegations, or 2) make general denials of all allegations except for those it wants to admit to.

If a party doesn’t know enough to admit or deny an allegation, it must say so, and that statement itself counts as a default denial. However, if the court finds this is raised in bad faith, then it may order sanctions under Rule 11.

It will be considered a counterclaim to which the plaintiff must respond

An example of how a defendant's blanket general denial can be treated as an admission when it misleads the other party. Here, the defendant denied facts it knew were true, like the plaintiff 's employment.

The defendant put its admissions to the allegations in a list form, and then all other remaining allegations were denied for lack of information in list form.

The defendant also plead for SOL, failure to mitigate damages, legitimate business reasons, immunity, and Monell doctrine.

True, whichever of these are not raised are waived.

The defendant must answer the complaint, if they haven't already

No, because all pending pleadings must be filed before any motion for judgment on the pleadings could be proper.

The complaint the court is using, which could either be the one initially filed or, if amended, the amended complaint.

A party can amend its pleading once as a matter of course (without asking opposing counsel or the court) within 21 days after serving it. If it's a pleading that requires a response (like a complaint), then the party may amend within 21 days after the other side serves either their response or motion.

Generally, the court should freely give leave to amend pleadings "when justice so requires".

It means that no consent from opposing counsel or the court is necessary to amend the pleading.

Obtain opposing counsel's written consent, or the court's permission. Only when consent isn't given by opposing counsel can the party seeking to amend involve the court.

An amendment changing a claim or defense "relates back" if it arose out of the same conduct, transaction, or occurence.

An amendment changing a party or its name “relates back” if:

1) The claim arises from the same conduct, transaction, or occurrence as the original pleading, and
2) Within 90 days of the original filing, the party received notice of the action, and knew or should have known that it would’ve been sued but for a mistake about its identity.

Treating an amendment to a pleading as if it were part of the original pleading.

Just once, after which point they would need to obtain written consent from counsel or seek leave to amend from the court.

The plaintiff would be able to amend the same claim as a matter of course.

The plaintiff would be unable to amend as a matter of course, since they would need to demonstrate that the new party 1) was involved in the same conduct, transaction, or occurence as the claims of the original complaint, and 2) had notice and actual or constructive knowledge that they would be sued but for a mistake about their identity.

They can first request written consent from opposing counsel, then if denied, seek leave to amend from the court.

1) Does the amendment relate back (relate to same conduct, transaction, or occurence)?
2) Did the new party have notice of the action and have actual/constructive knowledge that they would be sued but for a mistake about their identity?

A party may move to serve a supplemental pleading setting out any transaction, occurence, or event that happened after the date of the original pleading. In response, the court may order that the opposing party plead to the supplemental pleading within a specific timeframe.

No, the party seeking to serve a supplemental pleading must file a motion.

Established that the purpose of relation back is to balance 1) the defendant's protections under the SOL, 2) Rule 15, and 3) resolving disputes on the merits. Here, relation back was permitted for a party change after the plaintiff's SOL had run, because the mistaken defendant knew they could be sued, and shared the same insurance company as the named defendant.

An example where relation back was denied because the plaintiff’s placeholder "unknown officer" was due to lack of knowledge, not a mistake, and the correct defendant officer did not have notice of the action before the SOL.

Their failure to name the defendant must be a “mistake”, not just a lack of knowledge, and the plaintiff must promptly amend once the correct identity is discovered.

No, because any claims that are amended need to relate back to the same conduct, transaction, or occurence as the claims of the original complaint.

All papers signed, filed, and advocated for by attorneysnrepresented parties ceritfy that the respective information and beliefs were formed after "reasonable inquiry under the circumstances".

Nothing can be presented to the court for any improper purpose, including harassment, unnecessary delay, or needless increase to the cost of litigation

Claims, defenses, and legal contentions are warranted under existing law, or by nonfrivolous argument for extending, modifying, or reversing existing law to establish new law.

All factual contentions have or are likely to have evidentiary support after a reasonable oppurtunity for further investigation or discovery

Denials of factual contentions are to be made based on evidence, reasonable belief, or lack of information

Motions for sanctions must be made separately from any other motion, must describe the specific alleged misconduct, and must be served on the adverse party. The motion is not to be filed until 21 days after service, so the adverse party may challenge or correct as needed.

It allows the party targeted by a Rule 11 motion to challenge the allegations or correct course as needed.

Generally, no.

Yes

Not necessarily, because discovery requests and responses are not filed in court. However, representations made in discovery later filed in court through motions or affadavits would be subject to Rule 11.

False, there are also dicovery-specific sanctions under Rules 26 and 37

A judge may impose Rule 11 sanctions on any party sua sponte, without a prior motion by another party. In this situation, the court may order the party to show cause why their conduct did not violate Rule 11, and the 21-day safe harbor does not apply.

False, because even though the party may show good cause, the safe-harbor provision to correct or withdraw does not apply when the court acts sua sponte.

Sanctions must be limited to what suffices to deter the repetition of the conduct or comparable conduct by others similarly situated. This may include nonmonetary directives, an order to pay a penalty into court, or an order directing payment to a movant for all or part of reasonable attorney's fees and other expenses (only if raised by a movant).

The court cannot sua sponte impose any monetary sanctions against 1) unrepresented parties, or 2) represented parties, unless it had permitted them to show cause.

No

Yes, but only if it had permitted the adverse party to show cause.

Yes, but only if a Rule 11 motion had been made. It cannot do so sua sponte.

Something baseless and without reasonable or competent inquiry.

Not necessarily, as long as the paintiff's representative genuinely believed that the allegations made in the complaint were truthful at the time the complaint was filed.

Parties asserting claims, counterclaims, crossclaims, or third-party claims may join as many claims as it has against an opposing party.

False, claims may be joined. SMJ is a separate analysis. If SMJ is lacking, then the court will sever and dismiss those claims.

A pleading must state as a counterclaim any claim that the pleader currently has against an opposing party if that claim arises out of the same transaction or occurence. However, the counterclaim is not compulsory if the court would lack jurisdiction or if it is already the subject of another pending action.

False, even if it would otherwise be considered compulsory.

A pleading may include any claims against opposing parties that are not compulsory.

Counterclaims do not reduce or limit the relief sought by the opposing party. A counterclaim may request relief that is different in type or greater in amount than the relief sought by the opposing party.

An example in which a counterclaim was found compulsory because it arose out of the same transaction or occurence as the original claim. Here, even absent an exact factual match between the parties' two contracts, a logical relationship was found based on substantially similar work, timing of termination, and a shared insurance policy across both contracts.

1) Claim joinder rules to assess for "same trasnaction or occurence"
2) Subject matter jurisdiction, (it shouldn't be assumed that the claim meets federal question jurisdiction, for example)

A logical relationship

False, failing to raise a counterclaim that is compulsory precludes that claim from being raised in the future.

False, crossclaims and counterclaims must rise out of the same transaction or occurence

A pleading may state as a crossclaim any claim by one party against another coparty if that claim 1) arises out of the same transaction, occurence, or property. The crossclaim may include that the coparty is or may be liable to the crossclaimant for all or part of the claim.

No, because by filing the original action, the plaintiff already submited to the court’s jurisdiction and venue.

Yes, as long as the counterclaim arises from the same transaction or occurrence as the plaintiff’s original or amended claim. The SOL wouldn't matter since the amendment would have already been permitted under relation back rules.

True

No, a defendant has to raise a counterclaim first before any plaintiff crossclaims can be raised.

Yes, because even if the crossclaim doesn’t independently meet subject-matter jurisdiction, supplemental jurisdiction can apply if it arises from the same transaction or occurrence.

Yes, because supplemental jurisdiction can apply if it arises from the same transaction or occurrence.

Plaintiffs and defendants may be joined if 1) there is a right to relief jointly, severally, or with respect to the same transactions and occurences and 2) there is at least one common question of law and fact

To protect a party from unfair prejudice (embarrassment, delay, expense, or other harm) when a party is joined against whom they've made no claim and no claims are made against them.

A party having been incorrectly joined is not grounds to dismiss an action. Yet, by motion or sua sponte, the court may at any time add or drop a party, or sever any claim against a party.

False, such an action may be raised by motion or completed sua sponte

Parties who can be served and meet subject matter jurisdiction must be joined if either:
1) the court can't give complete relief to the existing parties without them, or
2) they claim an interest in the case, and leaving them out would impair their ability to protect that interest, or expose an existing party to multiple or inconsistent obligations.

The court must order that the person be made a party

True, they can file a 12(b) motion objecting on improper venue grounds. If venue is improper, the court must dismiss that party.

If a person who is required to be joined cannot be joined, the court must decide whether, "in equity and good conscience", the action should proceed among the existing parties or be dismissed. If the action can't proceed, then that party is considered "indespensable".

Generally, no. However, if the judge determines that the action cannot proceed without that party "in equity and good conscience", that party is considered indispensable, and the case is dismissed.

A party whose joinder is so necessary to the resolution of an action such that the court determines that the action cannot proceed "in equity and good conscience" without them.

True, just like rectangles and squares!

Rule 19(a) - Is the party necessaryequired (right to relief or same transactions/occurences and common question of law and fact)?
If so, is joinder feasible? (apply SMJ + PJ analyses)
Rule 19(b) - If joinder isn't feasible, is the party indispensable (can case proceed in equityood conscience)?

An example in which a non-party was not indispensable under Rule 19(b). Here, FIFA and Mastercard had a contract, but FIFA instead contracted with Visa. Visa argued it was indispensible because it knew they lacked SMJ and preferred the action's complete dismissal. Yet, Visa could protect its own intersts separately, and complete relief could be granted between the Mastercard and FIFA.

An example in which a non-party was indispensable under rule 19(b), leading to dismissal. Here, the Philippines asserted its soveriegn interest in a private dispute between its citizens which the court held it could not proceed "in equity and good conscience" with respect to the nation's sovereignty.

1) Scheduling conference, creation of discovery plan
2) Initial disclosures, presented at scheduling conference or shortly afterward
3) Discovery process (requests, responses, depos, any motions to compel)

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense, and proportional to the needs of the case. The information need not be admissible evidence to be discoverable.

Importance of the issues at stake in the action
Amount in controversy
Parties' relative acess to the relevant information
Resources of the parties
Importance of discovery in resolving the issues
Whether the burden or expense of the proposed discovery outweighs its likely benefit

An example in which a party was compelled to produce some, but not all, information. Here, the documents in the possession, custody, and control of a related non-party had to be produced because they were relevant and accessible, but documents that didn’t exist did not have to be produced.

Yes, if the discovery is relevant and proportional but would create an undue burden or expense for the responding party, the court can order cost-sharing.

False, the scope of discovery is limited to the claims or defenses raised in the pleadings, including any amendments.

After first meeting and conferring to attempt to resolve the issue, a party may move to limit or stop discovery to protect against annoyance, embarrassment, oppression, or undue burden/expense. That motion may be wholly or partly denied.

By signing discovery documents, a party certifies that the responses are complete and accurate, comply with discovery rules, are legally justified, not made for an improper purpose, and are neither unreasonable nor unduly burdensome or expensive.

A party who has made a discovery diclosure or response has an ongoing duty to supplement or correct that content in a timely manner after learning of the material error or incompleteness, as long as that information has not already been made known to the other parties. The court can also order a supplemental disclosure or response if a party raises the issue by motion.

A party doesn't need to provide discovery of ESI from sources that are not reasonably accessible because of undue burden or cost. By motion to compel or by protective order, the non-moving party must show that the information is inaccessible due to burden and cost. The court may still decide that the information be produced if the moving party can show good cause.

An example case in which inaccessible information was still discoverable due to relevance and proportionality, despite espensive costs on the requesting party. Here, ESI was kept on backup tapes, and the expensive cost to retreive the information was shared between the requesting and responding party.

1) Is the information contained in the ESI relevant and proportional? (as to the claims/defenses in the pleadings, not the subject matter)
2) Would the information's retreivability be unduly burdensome or costly to produce? (costs can be shared between the parties)

Remember also that a party can move to compel this information, and they need to meet and confer beforehand.

The protection for confidential attorney-client communications

The protection for tangible material, or its tangible equivalent, prepared in anticipation of litigation or for a trial

-The person who is or sought to become a client
-The lawyer (or their subordinate) who receives the communication while acting as a lawyer

The communication relates to a fact the attorney was informed by:
-their client
-without the presence of strangers
-for the purpose of securing a legal opinion, legal services, or assistance with a legal proceeding
-the privilege has otherwise not been waived by the client

No, but information about past crimes or torts may be protected if they meet the usual privilege requirements.

False

False

True

Established that confidential employee-counsel communications for the coorporation's purpose of obtaining legal advice are protected by attorney-client privilege, even where the employees are not part of management. Additionally, established that internal investigation materials anticpiated for the purpose of litigation are protected work product.

Established that materials prepared by counsel in anticipation of litigation are generally not discoverable, especially when they reflect the attorney’s mental impressions. Here, defense counsel’s notes from witness interviews were protected work-product since those witnesses remained available to the plaintiff for interview.

Documents and tangible things prepared in anticipation of litigation are ordinarily not discoverable unless they 1) meet discovery needs under Rule 26, and 2) the case has a substantial need for those materials and the party can't obtain their equivalent without undue hardship

If the court orders the discovery of work-product, it must protect against the disclosure of the mental imporessions, conclusions, opinions, or legal theories of the party's attorney or representative

Mental impressions are never discoverable - they have absolute work-product protection. While a court may order that work-product be compeled, it must shield against the disclosure of any mental impressions contained in the work-product.

1) Is there a substantial need for those materials in the preparation of the case? (reflect on relevance and proportionality)
2) Can the requesting party obtain their equivalent without undue hardship?

When a party withholds information under attorney-client privilege or work-product protection, they must 1) expressly make that claim, 2) describe the nature of the documents, communications, or tangible things not produced or disclosed without releaving the specific information itself that is privileged and protected

The receiving party must return or destroy it as soon as they are notified

False, the client has a duty to remain truthful if asked about the facts related to the claim, particularly in discovery because the client has to certify that their responses are true and correct

True, because the question targets a confidential communication that was exchanged for the purpose of seeking legal advice

After meeting and conferring, a requesting party may move to compel discovery. The court must allow the responding party to be heard.
-If granted (or if disclosure occurs after filing), the court must award fees and expenses to the movant.
-If denied, the court must award fees and expenses to the responding party.

If a party fails to obey a discovery order, the court may issue further orders, including:
-Deciding that certain facts will be taken as established for the purposes of the action
-Staying further proceedings until the order is obeyed
-Dismissing the action in whole or in part
-Rendering a default judgment against the disobeying party
-Treating the disobeying party as "in contempt of court" (except if the original discovery order concerned a physical/mental examination)

If pertinent ESI was lost and cannot be restored or replaced, the court may do one of the following:
-Prejudice: order measures to cure the prejudice
-Intent to deprive: either 1) presume that the information was unfavorable to the possessing party and instruct the jury to presume the same, or 2) dismiss the action or enter a default judgment

Finding of prejudice or finding of intent to deprive

The court may order measures necessary to cure that prejudice

The court may either 1) presume that the information was unfavorable to the possessor and instruct the jury to presume the same, or 2) dismiss the action or enter a default judgment

True, unless a dispute arises (ex: MTC)

False, however they may not be available for appeal immediately

True, the requesting party would need to issue a subpoena

The party should produce them as they are kept "in the usual course of business"

No, the requesting party may issue an interrogatory requesting that the responding party identify a specific individual who has a specific quality or course of duties within an organization

Relavance, privilege, undue burden

Request a court order

An example case in which Rule 37 monetary discovery sanctions were issued when a party's conduct evidenced bad faith and an attempt to obstruct. Here, the defense counsel provided evasive and dual objections/answers and delayed document production.

False, the attorney must either acquire sufficient learning and skill, rely on technical consultants, or decline representation.

A final disposition of a particular issue. They claim a party is either entitled or not entitled to what it has asked for.

Where a party does not pay voluntarily, the prevailing party may need a "writ of execution" from the court to enforce a money judgment. The prevailing plaintiff may need a judgment creditor to investigate where the judgment debtor's assets are, or seek additional discovery. If the assets are in a different state or country, the judgment creditor may need to file a new suit or register the judgment to enforce it.

A document that allows a prevailing party to enforce a money judgment

They can obtain a judgment creditor to investigate where the defendant's assesta are, or seek additional discovery if necessary

They may need to file a new suit, or register the judgment in that area to enforce it.

Defaults, dismissals, summary judgments, and settlements

True, however the enforcement of that judgment may present difficulties, including having to bring a new suit there or register the judgment in that area to begin enforcement.

If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend itself, the clerk must enter the party's default.

After default is entered, a clerk or a judge may enter a default judgment.

Clerk: Enters judgment if the claim is for a "sum certain", or a sum that can be calculated by the clerk based on a plaintiff's affadavit of amounts due.
Judge: Enters judgment in all other situations. The party must apply for judgment and provide at least 7 days notice of a hearing on the issue if the adverse party previously appeared at all. The judge may conduct an accounting, determine damages, establish truth of allegations, or investigate.

The court may, sua sponte or by motion, set aside an entry of default for good cause, or a default judgment for the reasons provided by Rule 60(b).

True

True, however that default can be set aside for good cause later on

False

A fixed, clearly defined amount for relief that is provided to a clerk for the entery of a default judgment

By providing an affadavit showing the amount due. Costs are also included.

False, both defendants and plaintiffs who are the targets of counterclaims may be subject to defaults and default judgments.

No, because an entry of default is not a default judgment. Only default judgments may be executed on.

False, a writ is only needed where a party refuses to voluntarily pay the judgment.

True

False, courts generally prefer to adjudicate cases on the merits as long as there has been no willful conduct to evade the action

An example case in which an entry of default was set aside despite a party's failure to appear. Here, defendant's agent for service of process forwarded notice to the incorrect party, but the defendant acted promptly after learning about the suit, had a meritorious defense, and their personal responsibility for the default was minimal.

A plaintiff may dismiss an action without a court order by filing 1) a notice of dismissal before the opposing party has served an answer or MSJ, or 2) a stipulation of dismissal signed by all parties who have appeared.

Unless that notice or stipulation says otherwise, the dismissal is without prejudice. But, if the plaintiff already previously dismissed any federal or state court action based on or including the same claim, it will be a dismissal with prejudice.

A second voluntary dismissal of the same claim is automatically treated as a dismissal with prejudice, meaning that the action may not be brought again in any state or federal court.

Either by filing a notice of dismissal, or by filing a stipulation signed by all parties in the action

Default entry --> default judgment --> writ of execution (only if party refuses to pay voluntarily)

Before either an answer or motion for summary judgment is filed. If an answer is filed, but not an MSJ, they still need court approval, and vice versa.

A party may move for summary judgment on a claim or defense. The movant must show there is no genuine dispute of material fact and that they are entitled to JMOL.

If a nonmovant can't present facts essential to justify its opposition, the court may defer the motion, allow additional time for discovery, or issue some other appropriate order.

Unless a local rule or court order states differently, MSJs can be filed at any time until 30 days after the close of all discovery.

False, however, a non-moving party or court may defer the motion until additional discovery is completed

They must either 1) cite to evidence on the record, or 2) show that the non-moving party cannot produce evidence on the issue.

True

False, a moving party may alteratively show that the non-moving party cannot produce evidence on the issue.

No, the moving party may do either one to demonstrate "no genuine dispute of material fact".

The plaintiff, because they are the party presenting their prima facie case.

False, while a defendant can produce evidence in an attempt to prove its own defenses, they only need to show that the plaintiff lacks sufficient evidence of their claim.

Their burden is to show a genuine dispute of material fact. They can do this by either presenting evidence, or by showing that the moving party lacks evidence.

The non-moving party

In its opposition to an MSJ, the non-moving party may object that the evidence cited by the moving party would be inadmissible at trial.

Yes, because when ruling on MSJs, the judge only considers evidence admissible at trial.

The moving party

They must produce evidence proving each element of their claim.

True

A fact that might affect the outcome of the suit under the governing law

Yes. For example, if a defendant raises contributory negligence, the plaintiff can move for summary judgment to eliminate that defense. If granted, the defendant can't rely on it at trial.

The court can consider whether the motion is premature. There must have been reasonable efforts between the parties to engage in discovery.

Narrowing Adickes, this case established that a party moving for summary judgment isn't required to disprove the other party's claim; it can instead show an absence of evidence. Here, after a year of discovery, the court found plaintiff's evidence (including a self-serving affadavit) inadmissible and insufficient to support a genuine dispute of material fact.

False, if a plaintiff moves for summary judgment, they can also assert that there is no evidence to support an essential element of the defendant's defense.

True, they just need to show that the plaintiff lacks evidence to meet their burden of persuasion at trial

True