Civil Procedure Notes

Questions and Rules

Erie Analysis

• Confusion regarding the Erie Analysis and its application on an exam.

Pleadings

• Rule 8: Short and plain statement showing the plaintiff is entitled to relief.
  • (a) Claim for Relief: A pleading that states a claim for relief must contain:
    • (1) A short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support.
    • (2) A short and plain statement of the claim showing that the pleader is entitled to relief.
    • (3) A demand for the relief sought, which may include relief in the alternative or different types of relief.
• Rule 12(b)(6): Mirror image of Rule 8, tests the sufficiency of the plaintiff's allegations under Rule 8, supplemented by Rule 9 in cases involving fraud or mistake.
  • (b) How to Present Defenses: Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
    • (6) Failure to state a claim upon which relief can be granted.
• (Maybe) Rule 9: Fraud or Misrepresentation.
  • (b) Fraud or Mistake; Conditions 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.

Cases

Dioguardi v. Durning (2d. Cir. 1944)

• Facts:
  • Pro se litigant files complaint against U.S. Customs Collector.
  • Claim that the Customs Collector wrongfully refused to release some 'tonics' the Plaintiff had imported.
  • While in possession of Customs Collector, some of the bottles went missing, and the rest were sold at action.
• U.S. Attorney (on behalf of Customs Collector) files a motion to dismiss under Rule 12(b)(6).
• Key Takeaways:
  • A complaint need not allege each element.
  • All well-pleaded facts are taken as true.
  • All reasonable inferences are to be drawn in favor of the pleader.

Conley v. Gibson (1957)

• "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
  • Bare statement of a legal claim is enough under the rules; and
  • Courts should construe a pleading generously to allow it to survive a motion to dismiss.

Iqbal v. Ashcraft

• Multi-Step Test (can be either three, or two):
  • Three-Step Test:
    • (1) Identify the elements of the cause of action.
    • (2) Disregard conclusions allegations that are unsupported by well-pleaded facts.
    • (3) Considering the remaining well-pleaded facts in the plaintiff's complaint, determine if the plaintiff posed a plausible claim for relief. (Plausible instead of conceivable. Plausible is set by Iqbal).
  • Two-Step Test:
    • (1) First, after identifying the elements of the cause of action, disregard conclusory allegations unsupported by well-pleaded facts.
    • (2) Second, considering the remaining well-pleaded facts (after disregarding unsupported conclusory allegations), determine whether the pleader states a plausible claim for relief.
• Summary of Cases: Iqbal created a higher standard of pleading, moving it from being conceivable to plausible standard.

Course Description

During this course, students will continue to examine how civil lawsuits make their way through the legal system and to analyze how civil procedure is implicated by the Constitution, rules, statutes, and case law. More particularly, students will learn the various rules under which state law applies in federal courts and the concepts and rules governing the pleading, pre-trial, trial, and post-trial phases of civil litigation.

Course Learning Objectives

At the conclusion of this course, students should be able to:

1. Articulate the elements of the doctrine governing state law in federal courts ("the Erie doctrine").
2. Identify issues of substance and procedure under the Erie doctrine.
3. Differentiate between the application of federal or state law and apply the correct rules in a given situation.
4. Explain how civil lawsuits are initiated, conducted, and terminated.
5. Analyze whether a civil lawsuit has been correctly initiated or terminated.
6. Understand and describe the concepts of discovery (scope and tools), joinder, and the doctrines of issue and claim preclusion.
7. Identify the possible bases for amending pleadings, including relation back when adding parties.
8. Understand and describe the role of judges and juries, respect for judgments, in the Anglo-American legal system.

Class Structure

Your final grade for the course will be calculated as follows:

• 70% final exam
• 30% exercises, quizzes, assignments

The final exam may consist of some combination of multiple-choice questions, short answer questions, and essays. The exam will be closed book, as required by ONU Law School faculty policy. As discussed in more detail below, your final grade may be decreased or increased based upon your class preparedness and participation.

Reading Assignments

I have listed the reading assignments for each class meeting at the end of this syllabus. To do well, you should (1) read the assigned material carefully before class, brief all cases, outline all rules, and be prepared to discuss the material in class; and (2) prepare answers to the questions or problems in the assigned material. #WriteTheRule

Class Attendance and Participation

I take attendance at every class meeting by circulating a sign-up sheet. You are responsible for making sure that you record your attendance by signing in. If you do not sign in during or immediately after class, you will be recorded as absent.

Please do not ask me to sign in for you or to otherwise record you as present after the fact.

After every third absence, your grade will be subject to a decrease of one-third step (e.g., from a B to a B-).

Throughout the semester, I will "cold call" on students for case recitation, caselaw application, discussion questions, and hypothetical problem-solving. If I call on you, and you are absent or you are obviously unprepared, your final grade in the class will be subject to a grade reduction of up to a full step (e.g., from a B to a C) from what it otherwise would have been. Grade reductions may be mitigated under three circumstances: (1) you have notified me in writing (by email or note on the lectern) before class that you will be absent or are unprepared (note, however, on every third such notice that I receive from you during the semester, your grade will be subject to a decrease of one-third step (e.g., from a B to a B-)); (2) you, personally, are physically or mentally incapacitated and therefore unable to give notice; or (3) you have a unique need for accommodation, and you have worked out a prior arrangement with me.

In addition to "cold calling" on students, I also encourage volunteer participation. Excellent participation consistently throughout the semester will subject your final grade to an increase of up to one-third step (e.g., from a B to a B+). The quality of your volunteer contributions is more important than the quantity.

You are responsible for everything discussed or distributed in class. If you miss a class, it is your responsibility to get notes, handouts, assignments, etc. from a trusted fellow student. Please do not ask me for these materials.

Professional Values

As lawyers-in-training, law students are held to the same standards as practicing lawyers in terms of civility and professionalism. Lawyers are required to be competent and timely in their work and to treat people with civility, dignity, and respect. The same is expected of you in your class preparation, participation, and communication with your classmates and your professor during class. In accordance with these values, students are expected to be in class on time and fully prepared to participate. In addition, they are expected to take breaks during class only when and if announced by the professor, and they are expected not to leave class early.

Students are also expected to conduct themselves professionally when interacting with their professor by email. For example, email messages should begin with a proper salutation, requests for information should be expressed politely, and answers to questions or requests posed in your email messages should always be acknowledged. A student who is unprepared, takes an unscheduled break, is late for class, leaves class early, or fails to communicate in a professional manner may have points deducted from his or her final grade.

Accommodations

Students requiring particular accommodations because of physical and/or learning disabilities should contact the dean's office prior to or during the first week of classes. For additional information regarding ONU Law's disability services, see https://my.onu.edu/sites/default/files/policy on examination accommodations.pdf.

Academic Dishonesty

ONU Law expects its students to conduct themselves in a dignified and honorable manner as future members of the legal profession and assumes that individually and collectively they will discourage acts of academic dishonesty. ONU Law also expects cooperation among administrators, faculty, staff, and students in preventing acts of academic dishonesty, in detecting such acts, reporting them, and identifying those who commit them, and in providing appropriate punishment for offenders. The Student Code of Conduct is found in the ONU Law Catalog and at: https://my.onu.edu/sites/default/files/student code of conduct.pdf

Week 1 Schedule

• 01.23
  • Topic/s: A Description of the Litigation Process and the Sources of Procedural Law
  • Casebook: RE-READ: pgs. 21-40
• 01.27
  • Topic/s: Choice of Law - The Erie Doctrine
  • Casebook: RE-READ: pgs. 882-889; 895-900

Week 2 Schedule

• 01.29
  • Topic/s: Substance and Procedure Under the Erie Doctrine
  • Supp: Casebook: pgs. 911-922
• 01.30
  • Topic/s: Substance and Procedure Under the Erie Doctrine
  • CB: pgs. 922-935
  • Supp: (re-read) 28 U.S.C. Section 2072, pg. 591 (also reproduced in CB: pgs. 931-932)
• 02.03
  • Topic/s: Substance and Procedure Under the Erie Doctrine
  • CB: pgs. 935-950
• 02.05
  • Topic/s: Basic Pleading
  • CB: pgs. 429-440
  • Supp: Rule 7(a), pg.31; Rule 8(a), (d), and (e), pgs. 32, 33; Rule 10(b), pgs. 34-35; Rule 12(b), pg.37

Week 3 Schedule

• 02.06
  • Topic/s: Basic Pleading
  • CB: pgs. 456-476
  • Supp: Rule 8(a)(2), pg. 32; Rule 9(a) and (b), pgs. 33-34
• 02.10
  • Topic/s: Basic Pleading
  • No new assignment.
• 02.12
  • Topic/s: Pleading Responding to the Complaint (or Not)
  • CB: pgs. 477-488
  • Supp: Rule 7(a), pg.31; Rule 12(a)(1)(A), pg.36; Rule 55(a)-(c), pgs. 97-98

Week 4 Schedule

• 02.13
  • Topic/s: Pleading Responding to the Complaint (or Not)
  • CB: pgs. 488-498
  • Supp: Rule 12(b) through (f), pgs. 37-38
• 02.17
  • Topic/s: Pleading Responding to the Complaint (or Not)
  • CB: pgs. 498-505
  • Supp: Rule 12(g)-(h), pg.38; Rule 12(b)(2)-(5), pg.37; Rule 7(a), pg.31; Rule 12(c), pg.37; Advisory Committee Notes for Rule 12, pgs. 208 (paragraph beginning "Subdivision (g)"-209
• 02.19
  • Topic/s: Pleading Responding to the Complaint (or Not)
  • CB: pgs. 505-512;515-519 (through Part V. Further Pleading); 526-527
  • Supp: Rule 12(a)(4)(A), pg.37; Rule 12(b), pg.37; Rule 12(f), pg.38; Rule 8(b) and (c), pgs. 32-33

Erie Railroad Co. v. Tompkins

• The Rules of Decision Act (RDA): Federal courts apply the "laws of the several states" when deciding cases, unless federal law controls. OR: Federal Courts sitting in diversity are bound to apply state law.
• What is State Law? (Swift v. Tyson 1842) Federal Courts must apply state statutory or customary law, but not state common law.
  • If there is no state statue applicable to a diversity case, federal courts can apply "general law". Filed Law Suit in a Federal Court under Diversity Jurisdiction
  • Because Swift was the prevailing rule at the time, The federal courts can apply general law, or their interpretation of what the common law is or ought to be.
  • A majority of states held that a railroad owed a duty of ordinary care to people walking along a right of way.
  • If sued in state court, Penn. Law would have applied, and railroad duty was to avoid wanting negligence, while at the federal court the judge could use his independent judgment to determine what the governing rule should be.
  • Applied the majority rule.
• United Supreme Court: Justice Brandeis: The Swift Court misconstrued the RDA. It was intended to ensure that federal courts sitting in diversity applied state law. Federal courts must apply state law, regardless of whether it Is statutory or common law, in all diversity cases, unless federal law controls.
  • The case is remanded to determine the proper standard under Pennsylvania state law.
• Dissenting (Justice Butler): The court need not consider the constructional question at all. Under the common law of Pennsylvania ad elsewhere, Tompkins was contributorily negligent and should have lost… The Swift doctrine had stood almost without question for more than 50 years and should not have been overturned… Congress granted the government the right to intervene; the government has not been given that opportunity.
• The Erie Doctrine: Federal courts sitting in diversity must apply state substantive law and may only apply federal procedural law.
• Rule of Law: A federal court sitting in diversity must apply state substantive law, whether statutory or common law.

Klaxon Co. v. Stentor Electric Manufacturing Co.

• Conflict of law rules: State law requires a court in one state to apply another state's law.
• Stenton Electric Manufacturing Co. (NY) entered into a contract with Klaxon Company (Del.)
• Contract did not mention any express provisions of where disputes where to be settled:
  • The contract was executed in New York
  • Klaxon's performance of its contractual duties began in New York.
• Stenton Sued Klaxon for breach of contract. (Federal diversity jurisdiction)
• New York Law requires prejudgment interest and the law applies to the cause of action (Del. However, does not)
• Granted motion: New York governed interest on the damages because the parties' contract had been formed there.
• US. Supreme Court Issue: In a diversity case, must a federal court apply the conflict-of-law rules of the state in which it sits under the Erie doctrine?
• Court said yes Held: In a diversity case, a federal court must apply the conflict-of-laws rules of the state in which it sits.
• A state's conflict-of-law rules can affect the substantive rights and remedies o the parties to a contract-- forum state's conflict-of-laws rules under Erie.
• Klaxon Company is the leading Supreme Court decision concerning the intersection of the Erie doctrine and a forum state's conflict-of-law rules.
• Rule of Law: If a federal court’s jurisdiction is founded on diversity, the court must apply the conflict-of-laws rules of the state in which it sits.

Guaranty Trust Co. v. York

• Federal courts exercising diversity jurisdiction must apply those state laws that determine the outcome of a cases.
• Established the outcome-determinative test in diversity jurisdiction cases.
• The Court held that a federal court, exercising jurisdiction based strictly on diversity of citizenship, must abide by any state legal rule that would be outcome determinative if held in state court.
• -The Court reasoned that the Erie doctrine requires federal courts to apply state law in diversity cases to ensure consistent outcomes between state and federal courts. This includes applying state statutes of limitation to equitable actions.

Hanna v. Plumer

• Rule of Law: If a plaintiff serves a defendant properly under the federal rules, the plaintiff can proceed with a state-law claim that requires a different method of service for establishing liability.
• Fulfilling the federal standard for service of process suffices to allow a federal diversity lawsuit to proceed, even if that requires disregarding a state substantive law. In a diversity-jurisdiction case, a federal rule must win if it collides with a state statute.
• The Federal Rules of Civil Procedure seek to create a uniform method for service of process in all diversity-jurisdiction cases.

Walker v. Armco Steel Corp.

• Rule of Law: Rule 3 of the Federal Rules of Civil Procedure does not toll a state statute of limitations or preempt state tolling rules.
• Main points of the case:
  • Walker filed a products liability suit against Armco Steel Corp. in Oklahoma federal district court based on diversity of citizenship.
  • The complaint was filed before the Oklahoma statute of limitations expired, but service of process was made after the statute had run.
  • Armco moved to dismiss, and the district court granted the motion. The Tenth Circuit affirmed, and the Supreme Court granted certiorari.
  • The court held that Rule 3 of the Federal Rules of Civil Procedure does not toll a state statute of limitations or preempt state tolling rules.
  • The court reasoned that Rule 3 governs the timing of federal actions but does not conflict with the Oklahoma statute, which is a substantive state law requiring service of process within 60 days to commence an action.

Dioguardi v. Durning

• Rule: There is no pleading requirement of stating facts sufficient to constitute a cause of action, but only that there be a short and plain statement of the claim showing that the pleader is entitled to relief. (Fed. R. Civ. P. 8(a))
• Rule of Law: A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief.

Iqbal v. Ashcroft

• Rule of Law: A complaint will only survive a motion to dismiss if it alleges nonconclusory facts that, taken as true, state a claim to relief that is plausible on its face.
• Facial plausibility means that the facts alleged permit a “reasonable inference” that the defendant is, in fact, liable.

Virgin Records America, Inc. v. Lacey

• In federal court, it is fair and reasonable to grant a default judgment if there was proper service and the defendant has failed to appear to defend the case brought against them.
• The court granted the Plaintiffs default judgment against the Defendant. The court awarded the Plaintiffs a permanent injunction against the Defendant distributing music owned and copyrighted by the Plaintiffs, as well as cost in accordance with the statute.

Matos v. Nextran, Inc.

• Rule of Law: A defendant’s FRCP Rule 12(b)(6) motion to dismiss will only be granted if, when all reasonable inferences are drawn in favor of the plaintiff, the complaint does not state a claim upon which relief may be granted.
• When a defendant moves the court to dismiss a claim under FRCP Rule 12(b)(6), the court must proceed as if all facts asserted in the complaint are true.
• The court will draw “all reasonable inferences” in the plaintiff’s favor.

Rules

• RULE 7: tells us what constitutes pleadings. We want to worry about the complaint itself.
• Rule 8: Tells us what has to go into a complaint to be a complaint
  • Jurisdiction statement
  • Set forth claim and seeking relief
  • Statement of relief they are seeking.
• Rule 9: More detailed pleadings is required in certain limited case.
• RULE 10: Forum that pleadings have to take, how to captain the pleading and including the parties have to be named in the pleading.
• Rule 11: Articulate the duties of attorneys and unrepresented parties have to the court. Sanctions of not complying with duties
• Rule 12: Gives us the requirements for when a responsive pleading has to be filed, and the mechanisms and timing for asserting defenses.
  • (b) MEMORIZE THE DEFENSES IN RULE 12 B
  • (g) Joining Motions.
    • (1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
    • (2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
  • (h) Waiving and Preserving Certain Defenses.
    • (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:
      • (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
      • (B) failing to either:
        • (i) make it by motion under this rule; or
        • (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
    • (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
      • (A) in any pleading allowed or ordered under Rule 7(a);
      • (B) by a motion under Rule 12(c); or
      • (C) at trial.
    • (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.
• Rule 15: Ammending PLeadings
  • Rule 55: Default Judgement
  • (a):