Civil Procedure

Rule 11

Every pleading and written court paper must be signed by an attorney or party if unrepresented. The signature certifies that to the best of that person’s knowledge after a reasonable inquiry/investigation: 

1. It is not submitted for any improper purpose (harassment, delay, increase cost of litigation)

2. Legal contentions are warranted by existing law or non-frivolous argument to alter existing law. (or create new law, if there is no existing legal authority!)

3. Facts have evidentiary support or will likely have evidentiary support

4. Denials of facts are reasonably based on belief or a lack of information

The court may impose sanction on any attorney, law firm, or party that violated or is responsible for violation of rule; purpose is deterrence, not punishment. The standard is objective–what would a reasonable attorney do? (Good/bad faith irrelevant)

1. For a motion of the opposing party, must serve, wait 21 days, then file (Safe Harbor). The motion must be a separate, stand-alone document.

2. For court sua sponte, must give order to show cause why sanctions are not warranted. “Fix this, or explain why you did this.”

Rule 8

Pleading must contain:

1. A short and plain statement of the grounds for the court’s jurisdiction.

2. A short and plain statement of the claim showing that the pleader is entitled to relief; AND

3. A demand for the relief sought, which may include relief in the alternative or different types of relief.

Pleadings refer to complaints, answers, counterclaims, cross-claims, and third-party claims.

Twiqbal: A pleading must include the factual allegations to make the claim plausible, not just possible.

1. Ignore pure legal conclusions and recitations of the elements.

2. Determine the elements of each claim.

3. Include enough facts for each element of the claim to make it plausible.

The current Twiqbal standard assesses ___________ of the complaint. Under this standard, the complaint must contain each ____________ such that each ________ of each ______ is plausible. ________________ are ignored in this analysis.

plausibility; factual allegation; element; claim; conclusions of law

Rule 9

In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. If an item of special damage is claimed, it must be specifically stated.

Rule 18

A party asserting a claim MAY join, as independent or alternative claims, as many claims as it has against an opposing party. They can be completely unrelated to one another.

Same for crossclaims, counterclaims, and third-party claims.

Rule 20

Persons may join in one action as plaintiffs if the claim arises out of the same transaction or occurrence, or series of transactions and occurrences, AND any question of law or fact common to all plaintiffs will arise in the action. Mosley v. Ford

Persons may join in one action as defendants if the claim…

If two defendants are joined under Rule 20…

There can still be random claims assigned to one of the defendant’s and not the other, even if it has nothing to do with the facts of the joinder claim. E.g., I sue Emma and Leah for cancelling a party and I also sue Emma for giving me food poisoning.

What are the three types of remedies?

Money judgments, injunctions, and declaratory judgments

Rule 69: Money Judgment

A money judgment is enforced by a writ of execution, which allows you to garnish wages, seize bank accounts, and sell assets. Discovery in aid of execution is available to acquire the money judgment

Rule 65: the three potential stages of injunctions

Preliminary, TROs, permanent

Rule 65: Preliminary Injunctions

Preliminary Injunctions preserve the status quo

1. Providing notice to the other side is required, and is makes it different from a TRO

2. Security Required

3. Lasts until the permanent injunction determination

Rule 65: TROs

Temporary Restraining Order: Preserve the status quo. Issued Ex Parte and without notice. The court may issue a TRO without notice to the other side if: 

1. Specific facts clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; AND

2. The movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. 

3. Security is required.  

4. Because these are so extreme, they only last 14 days.

Rule 65: Permanent Injunction

Permanent Injunction: No status quo concept

1. Notice required 

2. No security

3. Must include details

4. Is the final decision on what will happen.

Elements for Injunctive Relief

1. The injunction is necessary to prevent substantial harm that cannot be remedied by money damages (no adequate remedy at law)

2. Greater harm would result from denying the injunction than from issuing it; 

3. The moving party has a substantive right to the relief (likelihood of success on the merits); 

4. The injunction is narrowly tailored to the redress of the harm; and

5. The injunction will not harm the public

Vehicle of notice doesn’t matter; as long as the party has been notified in some capacity, it counts for the notice requirement (e.g., personal service counts)

Rule 57: Declaratory

Typically, you can only get a remedy after you’ve been wronged and the court has determined you are entitled to damages. Declaratory Judgments avoid this. You find out what your rights are before you have to act so that you don’t have to wonder if you’ll be sued. The threat must be real and immediate/actual controversy; no advisory opinions.

The bottleneck to Rule 18

Federal Subject Matter Jurisdiction: the power to hear a case. Federal courts have limited jurisdiction. Article 3, mostly Section 2 of the Constitution. Four possible SMJ “admission tickets”:

1. Federal Question

2. Diversity

3. Supplemental

4. Removal

Federal Question Jurisdiction — 28 USC 1331; 42 USC 1983

Basic test: Claims that “arise under” a federal law or statute.

Must arise out of the well-pleaded complaint, NOT a potential defense (Mottley). The cause of action stated by the plaintiff must be federal.

Just because something is a violation of federal law does not guarantee FQJ.

A state law claim may be heard in federal court if it involves a federal issue that is (1) necessarily raised; (2) actually disputed; (3) substantial; and (4) doesn’t threaten federalism

Diversity Jurisdiction

Must have diverse parties on either side of the v. + over 75k

Persons: Must be a US citizen and classified by their domicile. Domicile = not necessarily their residence—their true, fixed, and permanent home that they intend to return whenever absent.

Corporations: Deemed a citizen of every state by which it has been incorporated AND the state where it has principal place of business. The Nerve Center of the corp.

Associations/Partnerships: Each state where a partner or member is a citizen. No layer goes uncovered. Complete diversity is required.

Aliens: Two citizens of foreign countries may not sue each other in federal court based on diversity. An American citizen may sue or be sued by a foreign citizen.

Fraudulent/Collusive Joinder: attempting to join a side to destroy diversity = not allowed.

Aggregation Rules

1P vs 1D: may aggregate related or unrelated claims

1P vs multiple Ds: may not aggregate unless there is joint liability

Multiple Ps: may not aggregate, even if factually related unless based on a common undivided interest.

28 USC 1367 - Supplemental Jurisdiction

At least one claim with OJ and the supplemental claim arises out of the same case or controversy (common nucleus of operative fact).

Courts can decline supplemental jurisdiction.

Exception:

1. In a case based solely on diversity,

2. A defendant may bring a nondiverse party into the lawsuit under 14, 19, 20, or 24.

3. But the plaintiff cannot then use SJ to assert a claim against that party if doing so would violate the diversity requirements. 

Removal

• The plaintiff initially chooses federal vs state jurisdiction. If P chooses state, D has the opportunity to remove the case to federal jurisdiction if there is Original Jurisdiction. 

• Forum Defendant Exception: The defendant can’t remove the case to federal court if the case is brought in their home state and the original jurisdiction is diversity. 

• If there is a federal question, and another claim with no original or supplemental jurisdiction, then the court must sever and remand those claims. 

• Narrowly and strictly construed: if you fail to remove timely and properly, your right to remove is lost. There are no extensions. 

• The plaintiff, if they believe an improper removal, can motion to remand back to state court, if it is based on grounds other than subject matter jurisdiction. (there is no time for SMJ–Terminex)

Procedures

• When there are multiple defendants, all defendants who have been properly joined and served must consent to the removal of the action. 

• Must be performed 30 days after service. 

Manipulation

• Plaintiff amendment in response to a removal notice cannot be done expressly to avoid removal. 

• Sham joiners are not allowed.

Rule 12

A. Responses are required generally within 21 days of service of complaint and summons (except 60 day waiver of service). Must be made before the answer.

B. How To Respond to Plaintiff’s Pleading. 

1. SMJ can arise at any time (Terminex)

2. Lack of personal jurisdiction

3. Improper venue

4. Insufficient process

5. Insufficient service of claim

6. Failure to state a claim: when insufficient facts are pleaded or if no legal relief is available under the facts pleaded, a Rule 12(b)(6) may be filed. When Rule 8/Twiqbal is violated, this is what is used in court! 

7. Failure to join a party under rule 19. 

C. Motion for Judgment on the Pleadings: Happens ffter the pleadings but early enough to avoid delaying trial. 

E. Motion for a more definite statement 

F. Motion to strike.

Must raise 12(b)(2-5) defenses in the Rule 12 Motion or the Answer, or they are waived.

12(b)(6-7) can be raised later: in the motion, in the answer, in a 12(c) motion, or at trial.

Rule 12 Rules of Construction

Limited to the four corners of the complaint—D may not bring in matters outside the complaint. 

It tests the factual allegations, not evidence or proof. 

Facts are construed, and inferences are drawn, in favor of the plaintiff–no credibility determinations

Rule 15(a) and (b): Amendments

A. A party may amend its pleading before trial ONCE as a matter of course within

1. 21 days after serving; or 

2. 21 days after serving a responsive pleading or serving a Rule 12(b),(e), or (f) motion.

In all other cases, a party may amend its pleading only with the other party’s written consent or the court’s leave. The court should freely give leave when justice so requires. 

B. Amendments During Trial 

1. If a party objects at trial that the opponent is raising an issue not in the pleadings, the court will freely permit amendment unless the party can show prejudice. 

2. If there is no objection: the pleadings deemed “amended to conform to the evidence.” Courts typically treat failure to object as implied consent for the issue to be tried.

Rule 15 (C) Relation back and (D) supplemental pleadings

C.1.b. Allows relation back for an amendment to add a new claim when the amendment asserts a claim or defense that arose out of the CTO set out–or attempted to be set out–in the original pleading.

C.1.c. Allows relation back to add a new party when: 

1. The amendment asserts a new claim that arose out of the same conduct, transaction, or occurrence already set out in the original pleading; and

2. Within the time for service of the original complaint under Rule 4(m)--generally 90 days–the person to be brought in: 

a. Received notice of the action; and 

b. Knew or should have known that the action would have been brought against it but for a mistake about its identity.

Diligence by plaintiff not relevant in determining mistaken identity. Can’t do “John Doe” and replace later, must be a genuine mistake.

D. Events that occur after the filing of the complaint or answer can be addressed by supplemental pleading, rather than amendment. The court has discretion.

Rule 8b: Admissions and Denials

1. In responding to a pleading, a party must: 

   1. State in short and plain terms its defenses to each claim asserted against it; and 

   2. Admit or deny the allegations asserted against it by an opposing party. 

2. A denial must fairly respond to the substance of the allegation

3. A party can use a general denial if they want to deny literally everything—even jurisdiction. (BAD!). 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. 

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

6. An allegation 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. 

Rule 8c: Affirmative Defenses

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

   1. Accord and satisfaction

   2. Contributory negligence

   3. Statute of limitations

   4. Waiver 

2. If a party mistakenly designates a defense as a counterclaim or vice versa, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

Basic answers:

1. Admission 

2. Denial 

3. Inability to admit or deny – must be after a reasonable explanation

4. Conclusions of law

5. Combinations

Rule 13 (a-e): Counterclaims

Compulsory: If not brought forth, then they are WAIVED

1. Arises out of the same transaction or occurrence, AND

2. Does not require adding another party over whom the court cannot assert jurisdiction

EXCEPTION: The claim was already the subject of a pending action when the complaint was filed. 

There must be a claim filed against the party first in order for there to be compulsory counterclaim.

Permissive: Any claim that is not compulsory; no waiver.

A party MAY assert a crossclaim against a coparty if: (ALL crossclaims are permissive)

1. The claim arises out of STOC that is the subject matter of the original action or of a counterclaim, or

2. The claim relates to any property that is the subject matter of the original action.

The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

Rule 14(A)

1. Third-party claims are permissive: A defending party may, as a third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. 

These claims are “derivative” – only seeking contribution towards the liability asserted against the third-party plaintiff.