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My Legs Civpro Final Outline Outline

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This is an extract of our My Legs Civpro Final Outline document, which we sell as part of our Civ Pro Outlines collection written by the top tier of New England Law students.

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1. Intro to Civ. Pro.Civil Procedure is: rules and procedures for non-criminal law suits, method by which substantive law is enforced, knowing how to get the court's attention, how to proceed and how to obtain damages a. Concept i. Injunction- order from the court to stop someone from doing something ii. Declaratory judgement- finding of the court iii. Values furthered by litigation: (1) dignity; (2) participation; (3) deterrence; (4) effectuation b. Due Process (Right to be Heard) (Rule 1)
i. Important Because:

1. Used when court deprives one of life, liberty, property

2. Courts have tried to capture due process in federal rules in an aspirational way

3. Ties into remedies ii. Values of Due Process:

1. Right to be heard

2. Notice

3. Right to appeal

4. Neutral/fair decision maker (judge)

5. Right to representation

6. Timely decision/timely hearing

7. Proper enforcement iii. Not all benefits cases need pre-termination hearing- dependent on the nature of benefit iv. Goldberg v Kelly (procedural due process re welfare assistance)

1. The fundamental requisite of due process of law is the opportunity to be heard. The hearing must be at a meaningful time and in a meaningful manner. These principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.
v. Matthews v. Elridge 3-Part Balancing Test (Due Process)( disability pre-trial necessary?)

1. Private Interest (what the person being deprived has at stake)

2. Risk of erroneous deprivation of this interest through the procedures used, and the value of additional procedures(if we use the process currently in place what is the likelihood that we will get it wrong)

3. Govt. interest in including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

4. REASONING a. Three factors.

1. The plaintiffs private interest is the uninterrupted recipient of his benefits pending the final admin decision on his claim.

2. The procedures used to determine his benefits with medical assessments.

3. An evidentiary trial might be costly.

2. Remedies and Stakes a. Provisional relief:
i. (1) Securing the judgement (equity)-

A. attachment: refers to real estate (real property).
B. sequestration: personal property/ bank accounts.
1 C. garnishment: defendants wages.
ii. (2) Maintaining status quo - preliminary injunction

1. useful when facts in the case are changing rapidly; maintains status quo until there is a

verdict iii. (3) Sequestration- attaches property/funds to property and usually removes property from person in possession pending further proceedings

1. Helps plaintiffs by: (1) if plaintiff wins, defendant's resources will be available to collect; (2)
puts pressure on defendant to settle by tying up assets iv. Temporary restraining order (TRO)(equity)- only lasts 10 days

1. P must show "immediate or irreparable injury, loss or damage"

(Winter v. Natural
Resources Defense) important - pg. 117(equity)- goes until merits

v. Preliminary injunction - Rule 65(a)(Walgreen Co.) pg/.130

of case are resolved due to harm being caused -> high burden for plaintiff to meet to obtain
Granted based upon (test):

1. Likelihood of success of the merits (how likely plaintiff will win)

2. Likelihood of irreparable harm

3. Balance of equities tips in plaintiff's favor

4. Injunction is in the public's interest vi. Receiver- official designated by court because it is "endangered"
vii. Declaratory judgement (equity) (Goldberg v. Kelly)- order from the court declaring someone's rights

b. Final relief i. Permanent injunction (equity)(test):

1. Damages are inadequate; hard to measure a $ amount

2. Irreparable injury

3. Balance of equities

4. Public interests; deter from committing again in the future ii. Declaratory judgements: either party can go to court and seek in order declaring that parties right.
iii. Consent decrees: public settlement agreement; forces court order agreement.
iv. Money damages: only form of legal relief

A. compensatory: compensates P for the monetary value of his loss.
B. nominal: symbolic.
C. punitive: D had to act in a horrible, disgusting manor to be awarded this.

c. Settlement i. Consent decree(equity)- when you turn settlement/private contract to judge and it becomes official


1. Compensatory - "make plaintiff whole"

2. Nominal- "token" damages

3. Treble- triple damages

4. Punitive- only given for irreparable harm

3. Pleadings a. The Complaint i. Plaintiff's 3 obligations: (1) state in initial pleading that they are entitled to relief; (2) meet

production burden; (3) meet burden of persuasion ii. Conley v. Gibson

2 1. RULE: A complaint is sufficient as long as the plaintiff sets forth an assertion upon which relief may be granted, and specific, detailed recitations of fact are not necessary to survive a motion to dismiss iii. Twombly (rule 8 becomes more fluid/efficient),
iv. Iqbal

1. Flexible Plausibility Standard: In some circumstances you have to amplify some pleadings/

Isolate legal conclusions that do not need to be legally proven
What is left are legal allegations
Review factual allegations and assume them true
If court can determine that the case is plausible it can move forward

2. Reason for complaint:
a. Notice- defendant needs to know what they are being accused of/can prepare defense b. Public/transparent interest c. Helps frame lawsuit d. Lawyers don't waste time disputing things that defendant admits to e. Must be able to put into writing what court did to you

3. Requirements of the Complaint (Rule 8) - NOTICE PLEADING
a. A pleading that states a claim for relief must contain: (8(a))
i. A short and plain statement of the claim showing that the pleader is entitled to relief ii. A demand for the relief sought, which may include relief in the alternative or different types of relief b. Each allegation must be simple, concise, and direct. No technical form required
c. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either a single count or defense in separate ones. (8(d)(2))
i. If a party makes alternative statements, the pleading is sufficient if any one of the statements is sufficient d. A party may state as many separate claims or defenses as it has, regardless of consistency (8(d)(3))

4. The Twombly-Iqbal test for sufficiency of a complaint a. (1) Identify pleading that no more than legal conclusions and are not entitled to an assumption of truth, and ignore those allegations altogether b. (2) Review the remaining factual allegations.
i. Assuming them to be true, can the court draw a reasonable inference that the defendant is liable for the alleged conduct?
ii. If facts are merely consistent with liability, but are also consistent with legal activity, liability is only possible, not plausible, and the claim should be dismissed.
iii. If facts are more consistent with liability than any other inference, liability is plausible and the claim should not be dismissed v. Surviving a Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6))

1. General allegations without specific facts to support them are not enough for a complaint to survive a motion to dismiss under 12 (b)(6) - Conley a. A complaint is sufficient as long as the plaintiff sets forth an assertion upon which relief may be granted, and specific, detailed recitations of fact are not necessary to survive a motion to dismiss.
i. P is only required to give D a short and plain statement of the claim, which will provide D with fair notice and the grounds of the claim a.

3 b. A complaint must be dismissed for failure to state a claim unless it appears beyond a

doubt that the plaintiff can present no set of facts for failure to state a claim unless it appears beyond a doubt that P can present no set of facts to support his claim so that relief may be granted.

2. Bower v. Weisman

A motion for more definite statement (12(e)) should be granted when a complaint is so unclear that the defendant cannot draft a response - Bowers complaint names Weisman and 2 corporate entities as defendants but doesn't distinguish which claims are against who - you can't respond to a claim w/o knowing which is about you - A motion for a more definite statement may be granted if "a pleading… is so vague and ambiguous that a party cannot reasonably be required to frame a responsive pleading..."
○ While only a short statement of the claim is required under FRCP 8(a)(2), FRCP 9(b)
requires that the events leading to a fraud claim be stated with particularity. These two rules must be read in conjunction and the specificity required will vary based on the facts of each case.
○ Here, Bower simply stated that Weisman made statements that were false. This does not satisfy the particularity required by FRCP 9(b). The complaint contains no facts about the time, place, or nature of the alleged misrepresentations. Also, Bower's complaint does not specify which of the three named defendants is charged with this fraud claim.
Therefore, Bower's claim for fraud is dismissed (same w the other alleged claims).
Rule: A complaint is not valid where it alleges several claims against several defendants w/o specificity and omits facts that are necessary to maintain causes of action contained in the complaint.
Holding: defendants motion for a more definite statement pursuant to 12(e) and motion to dismiss the second claim in the Complaint for failure to state fraud with particularity pursuant to 9(b) is granted.
9(b) heightened pleading for fraud (have to list proof) isn't listed - the court doesn't dismiss it fully, they dismiss it with an opportunity to replead it.

3. 2 Ways a Complaint may fail to state a claim: (Rule 12)
a. (1) The complaint is insufficiently detailed to allege the violation of an existing,

valid law i. P can amend to provide the missing details b. (2) When the complaint satisfies the "notice pleading" rule of Conley but fails to state a claim because no law exists to support P's claim.
i. P can only appeal, cannot amend the complaint.

4. P is not required to plead all of the facts supporting his claim in his complaint in order to survive a motion to dismiss nor does P have to plead evidence.
a. P may use pretrial discovery to gather specific facts that support his case and it is often preferable to do so i. This is because if P provides an extremely detailed complaint which contains facts that would prove that his rights have not been violated, he will plead himself out of court.
b. A complaint should not be dismissed bc it merely contains invalid claims alongside valid ones, or bc it sets forth some incomplete or unconvincing evidence c. A complaint does not fail to state a claim merely bc it does not set forth a complete and convincing picture of the alleged wrongdoing

5. A complaint must allege sufficient facts that, if taken as true, state a claim that is plausible on its face in order to defeat a motion to dismiss (Twombly)

6. A complaint will not survive a motion to dismiss if the facts alleged are conclusory in nature, without any factual matter. (Iqbal)
a. Conclusory allegations - offer no facts or require excessive, unreasonable inferential steps 4 vi.

b. Pleadings and Amendments to Complaint i. Intersection of 8 (a) & 12(b)(6):

1. Rule 8- what claim must contain;

2. Rule 12- how defendant refutes claim if it does not meet 8(a)
ii. Answers, Motions, Affirmative Defenses

1. Preliminary motions a. Motion for a more definite statement (must be before answering) (12(e))

i. Bower b. Motion to strike (delete redundant or insufficient matter) (12(f))
c. Motion to Dismiss (12(b)_

i. Failure to state a claim ii. Failure to join a party

2. *** IN SHORT
a. If you file a 12(b) motion, you need to file it before your answer b. If you file a 12(b) motion prior to your answer, → include ANY
plausible less-favored defenses in your motion at the same time; and c. If you answer, without having first brought 12(b) motions, →
include plausible less-favored defenses in your answer d. Rule 12(b)(2-5) if defendants attorney fails to consolidate all defenses they find relevant in their motion or answer, they waive any chance of challenging them in the future

3. Answers (Rule 8(b))a. Admission & Denial - must admit/deny each averment unless the defendant lacks knowledge b. Affirmative defenses- allows defendants to claim they could still win case even if cause of action is proven due to doctrine
Ex: plaintiff could prove all the elements of a negligence case, but lose bc the defense of SOL.

4. Amendments (Rule 15)- allows a case to be more meritorious 5 a. 15(a)(1)(A)- within 21 days of serving you can amend - freebie b. 15(a)(1)(B) - if the pleading is one to which a responsive pleading is required, 21

days after survive of responsive please OR 21 days after service of motion under 12(b), (e), or (f), or whichever is first c. 15(a)(2) - if you need to amend past 21 days/freebie you have to get consent of other side/court when justice so requires d. 15(c)(1)(B)- amendment has to tie back to the original story in complaint (if you want to raise new claims it just has to be against the same defendant)
e. 15(C) - relation Back of Amendements i. 15(C)(1)(B) must be fulfilled ii. Must have known but for a mistake iii. Must notify within 1m period iv. Singletary v. Pennsylvania

1. Rule: An amendment does not relate back to the time the original complaint was filed under FRCP 15(c)(3) where the amendment seeks to substitute a named party for a "John Doe" group originally included as a defendant.
v. Krupsky v. Costa Crociere

1. Rule: Relation back under 15(c) does not depend on the amending party's knowledge or timeliness.

2. Holding: the court ruled that 15(c) was not satisfied bc plaintiff knew or should have known of the proper defendant before filing her original complaint.

3. Rule 15(c) of the Federal Rules of Civil Procedure allows an amended pleading to relate back to the date of the original pleading if: (1) the claim against the new defendant involves the same conduct, transaction,
or occurrence set forth in the original complaint; (2) the new defendant received notice of the lawsuit such that it would not be prejudiced by being named; and (3) the new defendant knew or should have known that it would have been sued but for the plaintiff's mistake about its identity.
iii. Factors justifying denial of leave to amend

1. undue delay

2. bad faith or dilatory actions on the part of the movant

3. repeated failure to cure deficiencies by amendments previously allowed;

4. undue prejudice to the opposing party by virtue of allowance of the amendment;

5. futility of the amendment

c. Counterclaims & Cross-claims i. Counterclaims- claim asserted by opposing party (by defendant against plaintiff) (compulsory or


1. Compulsory counterclaim (rule 13(a))- must come out of the event that is the basis for the lawsuit & cannot bring in any new parties a. If D does not raise this claim in answer then it MAY NEVER be raised b. Must bring it c. (Podhorn) landlord-tenant- claim brought too late- compulsory counterclaim

2. Permissive counterclaims (13(b))- any other claim against plaintiff & does not have to come out of same suit a. unrelated to the same issues presented in the original complaint ii. Cross-claim- claim between co-parties against each other (usually brought by D) must be closely related to original claim of plaintiff (Rule 13)

1. ONLY permissive

2. Can't bring later 6 4. Joinder

2. Impleader (R. 14)- Defendant wants to add 3rd party defendant

3. Indispensable & necessary parties (R. 19)- Plaintiff sues defendant & wants to add another party of any type

4. Intervention (R. 24) - outside parties try to get involved in case

5. Interpleader (R. 22) - Individual/corporation who is or may be exposed to double/multiple liability may initiate the joinder of the parties who have asserted/can assert such claim a. Simple Joinder (Rule18)- plaintiff can include as many unrelated CLAIMS against defendant as they want i. 42(b)- judge can separate claims for reasons of convenience, avoiding prejudice and economy

1. If you "split your claims" you will most likely not be able to bring claims later

2. (Cooper)- all immigration claims cannot be joined as they cannot all be solved by answering one question b. Permissive joinder (R. 20) - plaintiffs may be brought into case if they have the right to joint relief;
it arises from the same transaction/occurrence, question of law/facts must be common i. 20(a)(1)1. A: persons joined in an action have rights "arising out of the same transaction/occurrence or series of transactions/occurrences

2. B: only needs one common question of law or fact that arises ii. 20(b) - court may separate parties for purposes of trial or otherwise iii. 21 - permits the court to add/drop any non-necessary party at any stage in the act c. Impleader (Rule 14)- D can bring in a person not already a party in action who is purportedly liable to
D for all or part of D's liability to P (chain of title - Jack → Bruno → Jill)
i. a third party plaintiff must file within 14 days of the original complaint or their original answer to include an impleader. if the 14 days have passed after the original answer, they must file a motion forthe court to the approve of the new non-party/third party defendant ii. 3 Requirements for Proper Impleader

1. (1) Third-party defendant is not already a party to the case

2. (2) Third party defendant is or may be liable to original defendant

3. (3) Third-party defendants liable must be for all or part of the claim against the original defendant iii. Gross v. Hanover

1. Rule 14(a) of the FRCP states that a defendant may serve a third party complaint against an outside party who is, or may be, liable to the defendant for the claims against him.

2. Gross argued that Hanover's motion to implead the Rizzos should be dismissed because
Hanover's third party claims were too speculative, Hanover waited too long to implead the
Rizzos, and Gross would suffer prejudice if the motion was granted.

3. Ruling: The district court granted Hanover's motion to implead the Rizzos because:
a. Too speculative → NO, chain of liability: Rizzos → Hanover → Gross
(also important to show that they can potentially be liable)
b. time→ NO, Hanover satisfied the time constraint of 10/14 (not last minute, so adding the parties right before trial would not be sufficient amount of time)
c. suffered prejudice → NO, the court believes that the prejudice to be felt by the plaintiff if any due to the need for additional discovery is sufficiently (DID NOT) outweighed by the benefits of more efficient litigation to be gained by permitting impleader.. (Any prejudice against
Gross is outweighed by the efficiency of resolving these related claims


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