Civil Procedure: Pleading

What is the basic purpose of pleadings?

Pleadings give notice of the general character of the problems to be resolved in court.

What was the nature of pleadings under common law?

The court could only grant relief based on the forms of action. Pleadings had to be drawn in terms of one of the recognized forms or the court could not grant relief to the plaintiff. Amendments to change the pleadings were not allowed. If the plaintiff pled improperly, he could not recover.

What was the common law form of pleading in courts of equity?

The plaintiff had to recite facts showing that he had a cause of action that should be remedied and that he had no right to recover under any of the forms of action at law.

What is the basis of code pleading?

The plaintiff's complaint must be in the form of a statement of facts showing a right to a remedy. The plaintiff is entitled to recover under any legal theory applicable to the facts pleaded and proven.

What effect did code pleading have on common law?

Code pleading eliminated the procedural difference between law and equity.

What are the general types of pleadings allowed under code pleading for a plaintiff?

The plaintiff is generally allowed to plead a complaint, demurrer to an answer, demurrer to cross-complaints, and an answer to a cross-complaint.

What types of pleadings are generally allowed for a defendant under code pleading?

Defendants are generally permitted to demurrer to the complaint, answer the complaint, cross complain, and demurrer to answer to a cross complaint.

What is meant by fact pleading?

Under code pleading, the facts constituting the cause of action must be set forth in concise language.

What is meant by 'ultimate facts'?

Under code pleading, the ultimate facts are those facts that describe in adequate detail the circumstances that entitle the plaintiff to a remedy.

Is it proper to plead legal arguments as part of the ultimate facts?

No. The ultimate facts must describe in detail the circumstances that allow the plaintiff to a remedy with no legal arguments permitted.

How many different types of counterclaims are there?

There are two types of counterclaims: (1) Compulsory: based on the same acts on which the plaintiff's claim is based. (2) Permissive: based on acts different than those of the plaintiff. A permissive counterclaim must have some independent ground for federal jurisdiction.

May other parties be joined to a counterclaim?

Yes. The court may order joinder if the other parties would be part of a complete determination of the counterclaim. Under a permissive counterclaim, if the counterclaim is based on diversity jurisdiction, the other parties may not be joined if their citizenship would destroy the diversity jurisdiction.

If a counterclaim is filed, what must a plaintiff do before dismissing his action against the defendant?

The plaintiff cannot dismiss his action without the consent of the defendant if the defendant has filed a counterclaim.

When is a counterclaim compulsory?

A counterclaim is compulsory when it arises out of the same act that is the subject of the plaintiff's complaint and it does not require the presence of third parties over which the court has no jurisdiction.

What is the significance to the defendant of a counterclaim being determined to be compulsory?

If the defendant does not file the counterclaim during the present action the claims in the counterclaim will be barred from future litigation.

What problems are interposed if a counterclaim is filed after the statute of limitations has run on the counterclaim?

Under the majority, if the counterclaim is compulsory and the plaintiff's claim was filed before the tolling of the statute of limitations, the defendant's counterclaim will not be barred. The minority, allows any counterclaim to be used defensively even if the statute of limitations has run.

What is a cross-claim?

Under federal rules, a defendant may set forth in his answer any claims he has against a codefendant that relate to the same acts contained in the complaint. Cross-claims are not compulsory.

What is the difference between a cross-claim and an impleader?

A cross-claim is filed against a coparty to the current action. An impleader is filed against a third party stranger to the current action. Impleader is limited to claims for indemnification or contribution. A cross-claim can be filed for any action emanating from the original acts causing the plaintiff to file his claim.

What is the ultimate effect of the pleadings at trial?

The pleadings define the issues in controversy and thus at trial determine the relevancy of evidence that can be used to prove the claim.

What key element defines the rights of a party to amend or supplement a claim once it is filed?

A party's right to amend or supplement a pleading are dependent on the time and the progress of the proceedings when the request is made.

Under federal rules, does a party possess the right to amend prior to trial?

Yes. A party may amend his complaint prior to trial before a responsive pleading is served by the other party. If the pleading does not require a responsive pleading and the action is not on the trial calendar, the party may amend within twenty days after the pleading is served Rule 15(a).

Is a party in federal court generally allowed to amend his complaint prior to trial?

Yes. However, the party must ask the court for permission. Leave to amend is virtually guaranteed unless some actual prejudice would be encountered by the other party. Refusal to amend without actual prejudice would be considered to be an abuse of discretion by the court.

Under state rules, what test is used to determine the permissible scope of an amendment to a complaint?

Code pleading requires that the amendment be based on the same general facts that were the basis for the original complaint.

Under federal rules what test is used to determine the permissible scope of an amendment to a complaint?

The scope of the allowed amendment is determined by whether it results in prejudice to the opposing parties. The entire case may be changed if no prejudice results from that change

Are answers allowed to be amended without restriction prior to trial?

No. Defenses that are not asserted in the first answer cannot be added by the amendment of an answer. Those defenses not asserted in the first answer are waived.

What complications does the statute of limitations add to allowing an amendment to a complaint or an answer?

If the statute of limitations has run, it is proper to allow amendment if the claim asserted in the amended pleading arose from the same conduct, transaction or occurrence in the original pleadings (Relation Back Doctrine). If the party is new to the action, the statute of limitations is not tolled. Under diversity, the relation back doctrine is applied even if a local state rule does not allow relation back.

How do most jurisdictions resolve the statute of limitations problems for amending a complaint or answer?

Most jurisdictions use the relation back doctrine and deem the amendment filed as of the date of the original complaint. However, the amended pleading must arise out of the same conduct, transaction, or occurrence in the original pleading.

How are new parties treated with respect to amendments to a complaint and the statute of limitations?

The statute of limitations has full affect for issues regarding amendments and new parties. However, if the new defendant had notice of the original complaint before tolling of the statute of limitations, the relation back doctrine will be applied.

For a party to amend a complaint and add a new party after the statute of limitations has run on the original complaint, when must the new party receive notice of the original complaint for the relation back doctrine to be applied?

For the relation back doctrine to be applied in federal court, the new party must have received notice of the original claim within the period for service of process.

Under state practice, how do some states allow a plaintiff to avoid the statute of limitations when pleading his complaint?

Some states permit a plaintiff to file a complaint against fictitious defendants if the true name of the defendants are not known at the time the action was filed. The complaint may be amended without regard to the statute of limitations once the identities of the fictitious defendants become known

Does the federal rule regarding the relation back doctrine for amendments apply in diversity cases?

The federal rule is applied in diversity cases even if there is no state relation back doctrine. If there is a state relation back doctrine, and that doctrine is more liberal than the federal rule, the state doctrine should be applied by the federal court.

Is a party permitted to reinstate the original pleading by dismissing an amended pleading?

No. The original pleading is not reinstated by dismissing the amended complaint. The party must amend again if he wants to go back to the original complaint.

In code pleading states, what should a party do if an amended pleading contains contradictory allegations on material matters with no explanation?

If the amended pleadings contain material contradictions without explanation, the opposing party may move to strike the amended pleading as a sham.

Under common law, what is the doctrine of variance?

Any variance between the facts pleaded and those proven resulted in adverse results for the pleading party. No issues outside the pleadings could be tried.

Under modern code pleading, is the doctrine of variance still followed?

No. If trial evidence is found to be a partial nonprejudicial variance from the pleadings, the court may allow the party to amend the pleadings at trial to conform them to the proof presented. If the variance is prejudicial the court may not allow leave to amend.

What determines whether a variance is prejudicial?

A variance is prejudicial if it results in surprise to the other party, and if a continuance would alleviate the surprise without any inconvenience or unfairness balanced against obtaining a complete and final disposition on the merits

Does the doctrine of variance apply in federal courts?

No. There is no doctrine of variance in federal courts.

Under federal court rules, how is evidence that creates a variance between the pleading and proof handled?

Any evidence may be admitted at trial and may be received unless a specific, timely, and proper objection is made when the evidence is offered. Evidence received without objection supplies the missing allegations not in the pleadings; this is known as the doctrine of aider by verdict.

What may a plaintiff do if his new evidence, not relevant to the pleadings, is objected to by the defendant at trial in federal court?

The plaintiff may seek permission to amend his complaint. The court may allow amendment at trial if the merits of the action will be adversely affected by not amending, and the objecting party fails to establish that the admission of the evidence would prejudice him in defending on the merits.

Under federal court, what is a proper remedy for a party claiming surprise due to a change in theory of the trial because of an amendment of the pleadings at trial?

The party may request a continuance. If the court grants the continuance, it can assess costs incurred against any party at fault for the surprise.

What is the purpose of supplemental pleadings?

Supplemental pleadings alert the court to material facts that have occurred subsequent to the filing of the original complaint. Supplemental pleadings are filed at the discretion of the court. The standard for filing is quite liberal.

What is the effect of a supplemental pleading on an original pleading?

The supplemental pleading does not modify the original pleading; it only adds to the original pleading. Under state practice, a supplemental pleading is not permitted to change the basic nature of the case. Under federal practice, it is allowed to change the nature of the relief sought.

What happens when a defendant fails to answer a complaint within the time allotted?

The clerk of a court is required to enter a default. After entry of the default by the clerk, the plaintiff must obtain a default judgment. Depending on the type of judgment requested, the clerk of the court may enter the judgment.

Is the defendant entitled to appear before the court when evidence is presented to a judge in order to obtain a default judgment?

The defendant is not entitled to notice of the application for a default judgment nor is he entitled to appear to submit evidence unless he made an earlier appearance in the case.

In federal court, under what circumstances can a defendant have a default judgment set aside?

A motion to set aside the default judgment must be made within one year after the order is entered. The defendant must show that he has a valid excuse for the default and that he has a meritorious defense to the action.

What is considered a valid excuse to set aside a default judgment in federal court?

Valid excuses include excusable neglect, fraud, and inadvertence.

What is a motion for a judgment on the pleadings?

A judgment on the pleadings is used to challenge an opponent's pleadings because they are insufficient to establish any valid claim or defense. This motion may be made at any time but may not delay the trial.

Under code practice, when may a plaintiff dismiss his action without prejudice?

Dismissal must occur before the commencement of trial. Otherwise a dismissal would be deemed to be with prejudice (i.e. there may be no later suit on the same grounds).

What is the procedure for a plaintiff to voluntarily dismiss his complaint in federal court?

The party must file a motion to dismiss. The dismissal must be filed before the adversary files an answer or a motion for summary judgment. If the motion is filed after an answer or a motion for a summary judgment is made, the party cannot dismiss without the adversary's consent or by court order.

Under federal court, does a plaintiff's request to dismiss his case without prejudice carry hidden costs?

Yes. The plaintiff may be required to pay for the full cost of litigation including an adversary's attorney's fees. There are no hidden costs if the suit is dismissed with prejudice. Note: Sanctions may be imposed if a suit was groundless and was dismissed with prejudice.