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Civ Pro Ii Outline

Law Outlines > Civil Procedure II - Outline

This is an extract of our Civ Pro Ii Outline document, which we sell as part of our Civil Procedure II - Outline collection written by the top tier of Charleston School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure II - Outline. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Civ Pro II Outline
PLEADINGS CONT.

1. Pleadings that State Claims (Rule 8(a)) (RED RULES)
a. Rule 8(a)(1) - Short & plain statement of grounds for jurisdiction i. This is where you prove you way in by using the "9 Heads"

1. Diversity:
a. List: Citizenship of plaintiff(s)/citizenship of defendant(s),
to demonstrate complete diversity.
b. State: Amount in controversy exceeds $75,000 exclusive of interest and costs c. Rule 11: all pleaded allegations must comport with lawyering ethics

2. Federal Question:
a. Specify: that part of the U.S. Constitution, federal statutes,
or American treaties under which the claim "arises"

3. Other Bases:
a. Specify:
i. Presence of ambassador;
ii. Admiralty claim;
iii. Federal gov't party;
iv. Lawsuit between States;
v. Lawsuit between State and another States citizen;
vi. Qualifying land grant claim b. Personal Jurisdiction?
i. No allegations of PJ/venue required by national rule because that is a defense for the defendant to raise.
ii. But must allege there is SMJ because it is un-waivable iii. By the plaintiff including an argument for PJ it forces the defendant to take a position.
c. Rule 8(a)(2) - Short & plain statement of the claim, showing that the Pleader is entitled to Relief i. Shows when the pleader has pled a Legally Sufficient and Factually
Sufficient Claim ii. Legally Sufficient

1. Must allege: (otherwise legally insufficient)
a. Each Element of…
i. The claim you're making doesn't exist or the complaint you are making is b. Some valid, substantive legal claim…
i. Ex. Of invalid: SC never ruling for wrongful life c. In "short and plain" terms.

2. Tested:
a. By a "demurrer" - in Rule 12(b)(6): Failure to state a claim.
1 Civ Pro II Outline b. Only the "face" of the pleading and its exhibits are considered (and facts that are judicially noticed.
iii. Factually Sufficient

1. Must:
a. "Show" …
b. In short and plain terms…
c. Sufficient facts that would entitle pleader to relief

2. Tested: When are facts alleged "sufficient"?
a. By a "demurrer" - in Rule 12(b)(6): Failure to state a claim.

2. Rule 8(a)(3) - Demand for Judgment for Relief Sought a. What Relief?
i. Called: "Prayer", "Wherefore" or "ad damnum" clause ii. Pleader must state type of recovery (Monetary? Non-monetary relief?)
(Do not need to plead numbers)
iii. Need not demand a specific amount of money (except in diversity cases for SMJ)
iv. Pleader often not limited by relief requested (unless unfair or prejudicial)

3. Rules that Supplement Rule 8a a. More General rules i. Rule 8(d)

1. Simple, concise, direct.

2. No technical form req'd.

3. Alternative pleadings a. When a party makes 2 different claims and the fact finder needs to find which one works [?]

4. Hypothetical pleadings a. Cannot guess that something "might happen."

5. Inconsistent pleadings a. As long as there are facts to support each claim you can have alternate claims on the same case b. An inconsistency cannot be used to dismiss a claim c. Need to discuss them at the same time ii. Rule 8(e)

1. Construing Pleadings a. "Pleadings must be construed so as to do justice."
b. Rule 11 - Signing pleadings i. Every pleading must be signed ii. The act of signing constitutes:

1. No improper purpose

2. Claim has legal basis

3. Claim has factual basis

4. Defenses not improper 2 Civ Pro II Outline c. Special Rules i. Rule 9

1. Capacity and authority (Rule 9a) *SPECIAL CASES*
a. You need not allege i. A party's capacity to sue or be sued;
ii. A party's authority to sue or be sued in a representative capacity; or iii. The legal existence of an organized association of person that is made a party b. To raise any of those issues, a party must do so by a specific denial, which must stat any supporting facts that are peculiarly within the party's knowledge

2. Fraud or Mistake (Rule 9b)
a. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.

3. Conditions of Mind (Rule 9b)
a. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

4. Conditions Precedent (Rule 9c)
a. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed.
b. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.

5. Official act; judgment (Rule 9e)
a. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead that judgment or decision without showing jurisdiction to render it.

6. Time and Place (Rule 9f)
a. If a pleader includes times and places in her pleading, and in showing that it is not specific, then it can be dismissed b. Ex. Pleading the time occurred outside the statute of limitations

7. Special Damages (Rule 9g)
a. A special damage is a category or a quantum in that category that is unexpected.
i. Damages that cannot be anticipated on the pleading as written ii. Ex. Starting quarterback heading to the Super Bowl and stubbed his toe in Publix

3 Civ Pro II Outline

8. Admiralty & Maritime (Rule 9h)
a. Favor sailors b. If you want admiralty rules, you must say we want to sue under admiralty rules c. UNLESS, it is obvious there is no other way you could get into federal court unless it was an Admiralty or Maritime claim

9. ONLY FRAUD AND MISTAKE & SPECIFIC DAMAGES
NEED TO BE ENHANCED CLAIMS WITH SPECIFIC
FACTS
d. Format Rules i. Rule 10

1. Caption (Supp. 8, Section 4a)

2. Names of parties

3. Numbered paragraphs

4. Single Set of Circumstances

5. Separate "Counts"
e. To Make a Complaint i. MUST SATISFY RULE 8(a) & THE MORE GENERAL RULES (RED
RULES)
ii. MUST SATISFY ANY (IF ANY) RULES UNDER RULE 9 (RED
RULES)
iii. MUST SATISFY RULE 10 (RED RULES)
iv. MUST BE SIGNED RULE 11 (RED RULES)
v. LIST OF REQUIREMENTS TO MAKE A COMPLAINT:

1. Caption and Parties

2. Numbered Paragraphs; Single Circumstances

3. Counts

4. Proper allegation of subject-matter jurisdiction

5. Statement of claim, showing entitlement to relief:
a. Short & plain b. Legally sufficient c. Factually sufficient ("plausible")

6. Demand for judgment

7. Signed in accordance with Rule 11

4. McCormick v. Kopmann a. Count 1: Trucker i. Negligent Driving

1. P wasn't intoxicated

2. P drove properly

3. D drove negligently

4 Civ Pro II Outline b. Count 2: Bar i. Dram Shop Act

1. P was intoxicated

2. P drove improperly

3. D served alcohol to P, aware he was already intoxicated, causing him to drive into D's lane of traffic, causing the accident

5. Leatherman v. Tarrant County a. Police misbehavior argument b. Police state you should use logic to state or dismiss the facts c. Police misconduct is not in Rule 9b d. It doesn't matter how good your argument is to look like fraud and mistake,
ONLY (literal claims of) FRAUD AND MISTAKE REQUIRE AN
ENHANCED COMPLAINT

6. Rule 12(a) - How Defendants Respond (All BLUE Rules)
a. Option 1: Can file a Motion (Rule 7(b)(1))
i. Why file a Pre-Answer Motion?? (Instead of just filing the Answer?)

1. Quick Resolution of a case (or portions of a case) that cannot succeed, or a. If there is a built-in defect, we would file to get it thrown out

2. Obtain Clarity because the Complaint is so vague that no Answer is possible ii. What KIND of Motions can be filed Pre-Answer?

1. Motion to Dismiss a. A motion to dismiss a part or the entirety of the claim b. When? - All the Rule 12(b) defenses i. Rule 12(b) Defenses:

1. Lack of SMJ

2. Lack of PJ

3. Bad Venue

4. Insufficient Process

5. Insufficient Service

6. Failure to state a claim

7. Failure to join a party under Rule 19 ii. In Rule 12(b) - Failure to state a claim - is claiming that Rule 8 and/or Rule 9 are missing requirements iii. What exactly is the failure?

1. Can't tell if there is a valid claim here or not; or a. Usual* Remedy: Dismiss without prejudice - allow plaintiff to try to plead again

2. Can tell - the claim is doomed 5 Civ Pro II Outline a. There's a flaw that cannot be remedied b. Usual* Remedy: Dismiss with prejudice - no reason to allow plaintiff to try again.

2. Motion for a More Definite Statement a. Rule 12(e) - Party is required to respond, but pleading is
"so vague or ambiguous" that party cannot figure out what is being alleged (and, so, can't respond).
i. 1. Required - Can never use this to attack someone's answer because I am not required to counter plead to an answer ii. Only works if I have to…
iii. 2. "So vague or ambiguous" - When I read it over,
I have no idea what you are accusing me of

1. Procedure: The Motion must be specific:
pointing out specific defects/missing details b. Time to make a motion (When?)
i. Motion is untimely… unless made before counter pleading (Answer)
c. Remedy i. If court grants: pleader must cure deficiencies by amending within 14 days (or other time court sets),
or be dismissed.

3. Motion to Strike a. Rule 12(f)
i. When portions of a leading may be "stricken":

1. Pleaded Junk - (1) any redundant,
immaterial, impertinent, or scandalous matter, (2) upon showing of prejudice, or …
a. (1) explained: Content added to the complaint to be incendiary. Extra information that is scandalous or extreme and irrelevant.
b. (2) explained: With that MUST show prejudice.

2. Insufficient defenses (i.e., a motion to dismiss for the plaintiff!)
a. Can make a motion to strike on claims that are unmeritorious b. A plaintiff's tool to use against the defendant for bad defense c. I.e. Defendant is claiming that the incident that just happened is barred 6 Civ Pro II Outline by being outside the statute of limitations ii. Time (When?)

1. Motion must be made before responding to the pleading (or within 21 days if no counter-pleading is permitted)
iii. Remedy

1. If pleaded junk, then generally no new pleading is required.

2. If insufficient defense, then same as Rule 12(b)(6).
iii. Reminder about Filing Pre-Answer Motions:

1. No litigant is required to file a pre-answer motion (can always just file an answer).

2. If a litigant chooses to file a pre-answer motion, then…
a. She must include all Rule 12 defenses she has in that one motion, or risk waiver!
b. Option 2: Can file an Answer (Rule 7(a)):
i. An Answer if filed either:

1. Within the original response period (21/60/90 days) for counterpleading or

2. If pre-answer motion was filed, then within 14 days after (i) court denies the motion or (ii) any court-ordered revised pleading is served.
ii. Content of the "Answer"

1. Paragraphed responses; made to each paragraphed allegation;
a. In RESPONDING to a pleading, a party must -
i. (1) … state in short and plain terms its defenses to each claim asserted against it…

1. Majority approach says that Twombly does not applied to pleading defenses.
ii. (2) … admit or deny the averments asserted against it by an opposing party…
iii. (3) … or, lacking knowledge or information sufficient to form a belief as to the truth of an allegation, must so state, and the statement has the effect of a denial.
iv. There are 3 options for what I can do: (1) I can admit what they say; (2) deny what they say; (3)
Say I don't know.

b. Rule 8(b)(6): Effect of Failing to Deny

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