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Buss Civil Procedure I Outline

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This is an extract of our Buss Civil Procedure I document, which we sell as part of our Civil Procedure Outlines collection written by the top tier of University Of Chicago Law School students.

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A. Service of Process 4(a-b) WHAT-Clerk Sig and Seal Summons must direct to defendant and name court and parties. 4(c) WHO-18+ and Not Party 4(c)(1): Summons and Complaint; served within 120 days or good cause (4m) 4(c)(2): Personally, 18+, or Not Party
?????Purpose: o REMOVE CONFRONTATION from Service o REMOVE PERVERSE INCENTIVES b/c plaintiff wants default judgment o REMOVE COSTS associated with mandatory sheriff service
?????History: o Spirit v. Letter of Rule: Judges are master interpreter and critics, try to make it work. o HISTORY: before 1993 there was exception to 18+ and nonparty in cases where P served according to state law (4e1) o HISTORY: Fed required marshals but it was too costly 4(c)(3): Marshal or court appt. P request: in forma pauperis ? court must give marshal 4(e) HOW-Serve in US-4 Choices 4(e)(1): Can follow state law on serving a summons in juris of district or where service as made OR...
4(e)(2): a)Delivering copy personally; b) at dwelling/abode with someone of "suitable age & discretion who resides there;" c) Service to agent appt. by D or by law to receive service.
? NOTE: 4(e)(2)(a) and (c) don't require service at place of residence
? GREEN V. LINDSEY: held: where there is cheap & effective way to increase reliability of unreliable procedure, exclusive reliance on unreliable procedure =/= due process of law o Facts: Forcible Entry or Detainer action against residents in housing projects o Majority arguments: (1) most important part of SRV & Due Process is knowing action is brought against you (2) notice not "reasonably calc" b/c servers knew kids ripped writs off doors (3) mailing is effective & cheap alternative
? Good Standard: What would you do if you were trying to reach the person AMBIG HYPO: You follow state law in every way but "who" (ex: state law req. sheriff, but you use 18+ NP) Proper: TEXT ARG: 4(e)(1) (the HOW) states that serving can be done according to state law, while 4(c) (the WHO) allows for anyone 18 or older to serve. Since the case is in federal court it follows federal rules. 4e1 only applies to the how and the federal rules for who can still apply. PURPOSE: Rule(1): " the just, speedy, and inexpensive determination of every action." They allow for the use of state rules (in terms of the how in 4e1 to accomplish that purpose because it might be the optimal value of reliability and cost. HISTORY: FRCP already spec sheriffs cost too much, 18+ NP is cheaper. Not Proper: bits & pieces of state/FRCP weakens rules. HISTORY: Pre-'93 lang had exception for when P served by state rules, fact that committee tookout exception bolsters arg. TEXT: The rule in 4e1 is just an alternative to the rule in 4e2, so if you choose to use 4e1 you should follow the complete rules of the state. To leave notice under the door it must be done by a marshal as the state rule determines and to have an adult friend serve it must be left with a person according to the federal rule options in 4e2. 4(m) WHEN-120 days-Good Cause Discretionary Extension 4(m): D must be served within 120 days of complaint, or dismissed otherwise with good cause for failure the court can extend the time. 4(L)(1) Affidavit Req, Proof of Service 4(l)(1): Unless service waived or by marshal, proof must be made to court in form of server's affidavit

4(d) Waiving Service 4(d)(1): D duty to avoid "unnecessary expenses"; waiver request must
? (A) be in writing
? (B) name court
? (C) Copy of complaint & 2 copies of waiver
? (D) inform D of consequences of not waiving
? (E) date
? (F) 30 days response window to waiver, 60 if D outside US
? (G) 1st class mail or other reliable means 4(d)(2): failure to waive w/o good cause ? D pay
? (A) service expenses
? (B) reasonable expenses of any motion (includes attorney's fees) o INCENTIVES: D has cost saving + more time to respond incentive. o INCENTIVES: P has cost saving (D gets cost OR no cost to waive) but may not want D to have extra time to prep 4(d)(3): 60 days to answer complaint, from date waiver request sent, or 90 days for outside US districts
? Good incentive to WVR---D gets 60 days instead of usu. 21 4(d)(5): Personal Jurisdiction or Venue objections not waived by waiver of service

B. Pleading Plaintiff Pleading & 12(B)(6) Motions Themes in Pleading Hand-Holding Theme: Spectrum from "hand-holding" (notice pleading) to "on your own" (pure code pleading or writ system)
? Advantages: Don't exclude legitimate claims, fairness argument that everyone gets fair shot at justice system
? Disadvantages: court overload, frivolous claims allowed to go to DSC, expensive Code Pleading Theme: To what extent should litigants be tailoring claims to fit into rules and to what extent does procedural system hamper justice
? CP Example Case---GILLISPIE v. GOODYEAR (1963---SupCt of NC) (demurrer granted) o Held: A complaint cannot simply allege the elements of a claim; it must provide factual matter to support each element for a claim. Gave P leave to amend o Facts: plaintiff's complaint alleged that Goodyear employees trespassed and assaulted her but did so in very vague terms---"maliciously assaulted," etc but didn't describe specific details outside of the fact that the defendants came to property 8(a) Pleading Reqs 8(a)(1): "short & plain statement" of jurisdiction grounds 8(a)(2): "short & plain statement" of claim showing pleader entitled to relief 8(a)(3): demand for relief sought, may include alternative types of relief 8(d) Be Concise & Alternative Statements OK 8(d)(1): each allegation must be simple, concise and direct; no technical form req. 8(d)(2): party can make two or more claims or defenses and if any is sufficient, then the whole is sufficient 8(d)(3): party can state as many separate claims regardless of consistency Why? Because courts recognize that parties cannot know exactly what direction facts will go

8(e) Construe Pleadings to DO JUSTICE 8(e): pleadings must be construed to do justice Ex. If complaint is done by someone who can't speak English but it is possible to construe cause of action, it will be allowed **in general lower pleading reqs. for pre se litigants**
7(A)(B) Pleadings Allowed and Motions 7(a) Pleadings ALLOW THESE:

1. Complaint,

2. Answer to complaint,

3. Answer to counterclaim,

4. Answer to cross-claim,

5. A third party complaint,

6. Answer to third party complaint, and

7. If ordered, a reply to an answer. 7(b) Motions MUST: a) Be in writing b) state grounds with particularity and c) state the relief sought. 9(b) Pleading Fraud or Mistake 9(b): in alleging fraud or mistake, party must state with particularity the circumstances constituting fraud or mistake. Malice, intent knowledge and other conditions. 12(b)(6) Failure to State a Claim 12(b)(6): "failure to state a claim upon which relief can be granted"
? Two types: o Insufficiency of Form ? Leave to Amend (Twombly/Iqbal) o Insufficiency of Substance ? Dismiss w/ Prejudice (Haddle)
? EVIDENCE outside PLEADINGS ? SJ [Rule 12(d)]

1. TWOMBLY & IQBAL held that a complaint needs to allege enough factual matter to be DECENTLY LIKELY Plausible on its face, Reasonable if True. Two part test (IQBAL) is (1) exclude conclusory statements and (2) determine if remaining factual matter makes plausible case. (A) RECITATION & MERELY CONSISTENT in the case of both antitrust conspiracy and other conspiracy was not enough (B) POINTS FOR DISCUSSION: (1) what is a properly pleaded fact? and (2) where is the line between possible & plausible?
(C) OVERTURNS CONLEY. "no set of facts" is no longer the test, but Buss said was misinterp anyway (D) ASSYMETRIC BURDENS. Is a factor to consider---SWANSON v. CITIBANK TWOMBLY---Bell Atlantic v. Twombly
? Complaint: (1) Parallel conduct between baby bells exists to prevent competition (2) no entry into mkt and (3) baby bells enter into contract/conspiracy/combo to not compete
? HELD: A complaint must include enough factual matter that, when taken as true, establishes a plausible claim for relief
? DISSENT: Contradicts form 11: "negligently drove" is an element of conclusory statement IQBAL---Ashcroft v. Iqbal
? Complaint (1) Mueller & Ashcroft "willfully & maliciously agreed to subject" plaintiff to harsh conditions (2) part of policy based on race, religion or national origin to designate respondent as a person of "high interest"
? HELD: a complaint must also "state a claim to relief that is plausible on its face," not just conceivable, otherwise it will not survive a motion to dismiss.
? DISSENT: Twombly doesn't require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true, they should treat them as true.

2. FORM 11. (A)DUTY is implied (B) CAUSATION comes from phrase "as a result" and "defendant drove"---not explicitly stated EX : "The defendant negligently drove a motor vehicle against the plaintiff"...
"as a result," damages INSUFFICIENCY OF SUBSTANCE ? DISMISS W/ PREJUDICE If law doesn't entitle you to relief, despite factual matter

1. HADDLE V. GARRISON (1996 SCOTUS): Court rejects 12b6 motion and HELD that at-will employment counts as an injury to person or property for the purposes of Title 7
? FACTS: P's claim is conspiracy to fire him (testified against employer). He was employed at-will. Statute said not allowed to conspire to threaten "injury to person or property"
? The form is correct but the law he is pleading under doesn't offer him remedy.

Response & TIMING Responding to Complaint Overview: in your FIRST response (pre-answer motions OR response pleading) you need to assert 12(b)(2)-(5) or they're waived. Anything else that you could've made on first response needs to wait until response pleading. 12(a) Time to Respond (Serve Answer) (21 or 60) 12(a): TIME TO SERVE RESPONSE PLEADING (21 days or 60 days if waiver)... UNLESS YOU'RE A GOV'T OFFICIAL/AGENCY 12(a)(4) Motion Stops Clock (14 Days After Ct Decides) 12(a)(4)(a): if the court denies motion or postpones the disposition until trial, the responsive pleading must be served within 14 days after notice of the courts action.

Waiving Rights to Motion
**EXCEPTION** Check for 21 DAYS to AMEND AS MATTER OF COURSE for responsive pleadings 12(g) Joining Motions 12(g): 1) can join motions and 2) you waive any motions that you do not join together that were available to the party but omitted from earlier motions. 12(h) Waiving and Preserving 12(h)(1): WAIVE 12b2-5 by (A) omitting it from original motion or (B) failing to include it in responsive pleading or amend as matter of course
? PURPOSE: (1) procedural issues should be noticed early and (2) prevent piecemeal attac o if NOT PREVIOUSLY AVAILABLE then rule 12(h) doesn't preclude you making one of these motions later 12(h)(2): you can make 12b6 demurrer, 12b7 joinder or legal defense to any claim during (A) pleading or order under 7(a); (B) 12(c) motion or; (C) at trial 12(h)(3): subject matter jurisdiction questions can be raised any time Why? Because it's a jurisdictional issue (Service O' Process) that courts take seriously

Defenses 12(b) How to Present Defense (Pre-Trial Defenses) 12(b)(1): Lack of subject matter jurisdiction---never waived 12(b)(2): Lack of personal jurisdiction---waived 12(b)(3): Improper Venue---waived 12(b)(4): insufficient process---waived
? Not Dispositive: Court will ask you to redo complaint and docs if not correct 12(b)(5): insufficient service of process---waived
? Not Dispositive: court will require proper service before moving forward

12(b)(6): failure to state a claim upon which relief can be granted 12(b)(7): failure to join a party under Rule19
? Not Dispositive: court will require joining party before proceeding 12(c) Judgment on the Pleadings 12(c): after pleadings close but early enough not to delay trial, party may move for judgment on pleadings alone
? Uses: response to complaint non-responsive, Statute o' Limitations has run out, or law on issue so clear development of facts not necessary
? Takes allegations of pleadings as true 12(d) When 12(b)(6) Turns Into SJ 12(d): (see above) if rule 12c or 12b6 motion includes things outside pleadings & judge doesn't strike them, then the motion is treated as Rule 56 Motion for Summary Judgment 12(e) Motion for More Definite Statement 12(e): must be made b4 responsive pleading & point out defects and desired details. Court has discretion to strike or other order if party does not fix problems 14 days after motion granted
? GENERALLY DISFAVORED because any candidate vague enough for this would be subject to 12b6
? PURPOSE: to catch cases were D can't figure out what they're up against and, therefore, can't respond. This might create good argument for avoidance of 12(h) waiver if you didn't understand complaint enough to be able to challenge it 12(f) Motion to Strike 12(f): 1) court can strike insufficient defense or stuff that's redundant, immaterial, impertinent or scandalous sua sponte or 2) on a motion 21 days after being served with pleading
?????TWO USES: o 1) exclude one allegation (like a 12b6 for a specific part of complaint) o 2) to exclude irrelevant/offensive statements (rarely used for this reason)

Response Pleadings (Rule 7 & 8) YOU'RE SUPPOSED TO DENY ONLY WHAT YOU'RE GOING TO CHALLENGE AND ACCEPT REST 8(b) Denials 8(b)(1): short and plain, admit or deny assertions 8(b)(2): denial must fairly respond to substance 8(b)(3): can choose general denial(all allegations + jurisdiction) or specific denial (explicitly pick and choose)
? ZIELINSKI (Z) V. PHILADELPHIA PIERS (PPI): E.D. of PA---held that parties have a duty NOT to foster misinformation of other party by acts of omission. o Facts: Forklift injures Z & he sues PPI, PPI owns but doesn't operate it (used to) so Z had accidentally sued. PPI uses 8b3 general denial which is misleading b/c they should admit ownership but deny operating (specific denial would've tipped off Z); Z can't sue right defendant (Carload Contractors) because SoL has run by the time he figures it all out. Interesting fact: same insurance company reps both PPI and CCI o Outcome: judge forces PPI to proceed admitting to ownership and operation of forklift (even though it isn't true) 8(b)(4): must admit parts true and deny rest of allegations in good faith 8(b)(5): if party lacks knowledge on an allegation it must state that and that has effect of denial 8(b)(6): failing to deny = admit EXCEPTION: damages????
8(c)(1) Affirmative Defenses 8(c)(1): here they are...

?????????Accord and satisfaction---agreement for alternative means of discharging debt Arbitration and award---issue was already arbitrated Assumption of risk Contributory negligence Duress Estoppel---alleging reliance on misleading representation of something and an injury that results from said reliance Failure of consideration---deficient contractual performance that results in contract being void Fraud---misrepresentation which induces another to act to his detriment Illegality---the contract was illegal Injury by fellow servant Laches---delay in pursuing a claim in a way the prejudices the defendant License---defendant had permission to commit the act Payment---obligation satisfied by payment?
Release---liberation from duty (example, release was signed by plaintiff) Res judicata---this has already been litigated Statute of frauds---statute requiring certain contracts needs to be signed in writing (because they're apt to fraud...maybe like a will?) Statute of limitations Waiver---voluntary relinquishment of a right

8(c)(2) Mistaken Counterclaim Designation 8(c)(2): if this happens, court must, if justice requires, treat it as if it were correctly designated 7(a)(3) Must Answer Counterclaim During Pleading 7(a)(3): pleading usually ends with responsive pleading, but not in cases of where defense's answer labels something specifically as counterclaim---in counterclaim cases plaintiff MUST answer during pleading.

Sanctions (Rule 11) 11(a) Signature 11(a) SIGNATURE REQUIRED ON EVERYTHING (ATTORNEY'S) 11(b) Stuff That Gets You Sanctioned (Why) 11(b) ATTORNEY OR UNREPPED PARTY certifies that to the best of their knowledge or "belief formed after reasonable inquiry" (subjective standard) CATEGORIES OF VIOLATIONS---if these are not met will be sanctioned 11(b)(1): have no improper purpose. APPLIES TO MANIPULATING THE PROCEDURE 11(b)(2): be based in existing law or non-frivolous argument for extending/modifying/reversing existing law
? Can Hold "Good Faith" Accountable---before 1983 it said "good faith" but changed to objective standard to avoid "empty head-good heart" arguments
? Wiggle Room. might be some wiggle room with respect to "good faith" if situation is ambiguous
?????CHRISTIAN v. MATTELL (2003 9thcir.) P created doll, filed complaint that D infringed, lawyer never looked at tag on Mattel to prove it was meritorious claim. Held: conduct satisfies sanction b13 improper purpose, frivolous, no evidentiary support. o We want to sanction repeat offense and others in similar situation. 11c4 There is a linkage between 11b(1) and (2) and deter repetition 11(C)(4) written or not. 11(b)(3): facts have evidentiary support or will likely have some after discovery/investigation
? Distinction from Twombly Standard: Twombly is ensuring facts add up to claim, while R11 ensures evidence add up to facts


Fact/Evidence/Conclusory Statement: confusion here may cause ambig---argument can be made that R11 is more stringent than Twombly b/c requires that you're likely to find support o It's possible to violate 11b2 & comply with R8 Pleading: if you present facts that state a claim but know that discovery would turn up false info? 11b2 violation
? Inconsistent Pleading Issues. If evidence should likely be discovered (more likely than not) how can inconsistent pleading (rule 8) be reconciled with rule 11 o Ex: Woman's hubby leaves tavern & dies in accident---she files two complaints: 1) against tavern because they got him drunk and were N and 2) against other driver because hubby was sober o The scenarios are mutually exclusive, but this isn't barred under inconsistent pleading o Not a rule 11 problem unless she could undertake reasonable inquiries to determine whether husband was drunk 11(b)(4): denials of fact are warranted on evidence or reasonably based on belief or lack of info 11(c)(1) Non-Mandatory Sanctions 11(c)(1): court MAY impose sanctions to attorney, firm, party. Hold firm responsible excepting exceptional circumstances
? OPTION TO NOT IMPOSE: Buss says that R11 violation might be sanction in itself
? NOW: 1993 Amendment. o Shift away from $/Mandatory. o Shift away from Fee Shifting---in order to avoid perverse incentive to bring too many claims o Move to hold FIRMS liable---want firms to give correct incentives to their lawyers
? PURPOSES FOR CHANGE: o Mandatory sanctions disproportionately effects plaintiffs o Court does not want to discourage novel/creative legal arguments o Draconian sanctions created conflicts between atty and client b/c atty not zealously rep client for fear of sanctions.
? HISTORY OF IMPOSITION: o Before 1983. Gentleman's agreement only applied to pleadings ---if lawyer's pleadings found bad faith, then motion/arg stricken as sham/false o 1983 Amendment.
? Mandatory Sanctions for pleadings/motions/other papers violating 11b2. "Shall impose" language. Expanded scope of things covered and made it mandatory
? Mistaken Denials excused if "based on "belief formed after reasonable inquiry" 11(c)(2) Safe Harbor (Motion for Sanction) 11(c)(2): must describe specific conduct and must not be filed or presented to the court if the challenged document is withdrawn/corrected within 21 days of service.
? SAFE HARBOR---once the rule 11 violation is served to the party, the movant has to wait 21 days before filing it with the court to give the other party time to amend their complaint. 11(c)(3) Court's Initiative, Show Cause Sanctions (Sua Sponte) 11(c)(3): SHOW CAUSE---court sua sponte can force party to "show cause" why actions don't violate 11b2
? CANNOT BE MONETARY if claim has already been dismissed 11(C)(5)(B) 11(c)(4) Sanctions To Deter 11(c)(4): Sanction should only suffice to deter repeat offense & same conduct by others.

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