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Civil Procedure Outline

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

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

Civil Procedure - University of Virginia School of Law Pretrial Pleadings:

1. Complaint (Rule 8) a. Procedure: i. Timing:

1. File any time within the Statute of Limitations

2. Service must be within 120 days of filing, can get extensions for good cause ii. Substance: Must include...

1. Grounds for Jurisdiction

2. Grounds for Relief (state/federal law or common law claims) a. One claim per paragraph

3. Demand for Relief a. Ex: money or injunctive order b. Can be in the alternative, regardless of consistency c. Must explicitly request punitive damages or other special damages

4. Policy/Strategy: a. Don't plead yourself out of court (admitting stupid things) b. Don't just make legal conclusions c. Anticipate Defenses d. The lower the standard, the less likely amendments will be required e. Post-Twombly/Iqbal (Twiqbal): err on the side of more detail f. Time, place, people, events, harm done

5. Twiqbal Standard to survive a Rule 12(b)(6) a. Standard: Facts plausible on their face. i. Must go beyond assertions and conclusions ii. Plausible: "more than possible but less than probable" iii. Two Step Analysis:

1. Conclusions and statements of law are taken out

2. Remaining facts are evaluated for whether they show sufficient grounds for relief. iv. Unanswered Question: absolute or relative plausibility (on it's own or compared to D) b. Major Concerns/Policy: i. Definition of plausible: must it be plausible on its face or must it be more plausible than the answer?
ii. Is this too strict for cases when there are informational asymmetries?
iii. Does this force people to put in facts that may help the defendant or to plead themselves out of court?
iv. Policy: Protect D from high discovery and settlement costs in cases where P has no plausible chance of winning, c. Old Conley Standard: Complaint should not be dismissed under 12(b)(6) unless it appears beyond doubt that P can prove no set of facts in support of his claim (Notice Pleading) i. If there was any way the claims were possible, things went forward.

6. Rule 9(b): Fraud/Mistake/Condition 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

7. Rule 9(f): Time and place are material when pleading a complaint.

8. Rule 9(g) Must specifically plead special damages (punitive, etc.)

9. See Rule 11 for sanctions (no requirement to swear a pleading under pains and penalties of perjury).

2. Filing and Service of the Complaint (Rule 4): a. Must serve court Summons and a copy of the complaint b. Must also include: i. Name of the court and parties ii. Directed to the defendant 1

c.

iii. Name and address of P's attorney iv. State time that D must appear v. Notice that failure to appear = default judgment (Rule 55) vi. Signature of the court clerk vii. Court's seal Method of service (to individuals): i. Basics (Person, within US) By Hand

1. By any adult (18) non-party

2. May request marshal or court officer Rule 4(c)(3)

3. Must be left with a person of "reasonable age" at the abode

4. Must be delivered to D or to D's abode

5. Example: Mullane - can have two-tiered service for different classes in a class action, lower requirements if they are unknown beneficiaries of a trust (newspaper) only if they are practically impossible to identify/find. ii. Outside the US - Person

1. Can follow internationally agreed means of service (preferable)

2. The foreign country's means of service (less preferable), either by their rules or by letter rogatory (request from court to foreign court) or letter of request asking the foreign authority for direction

3. Mail or in person, unless prohibited by the foreign country.

4. Any other means not prohibited by international agreement (e.g. email) (must get approval from court)

5. Example: RIO a. Email b. EIC mail service c. Service of attorney/representative (court must declare them an authorized agent first) d. Publication (only if they are practically impossible to identify/find) e. Appointed family member f. Television

6. Test to apply: was the notice reasonably calculated under all the circumstances to appraise interests of interested parties of the pendency of the action and afford opportunity to respond?
iii. Government

1. United States: a. Deliver copy of summons and complaint to US attorney in the district or a person in their office designated in writing OR by mail to the civil process clerk AND b. Mail copy to the Attorney General AND c. If challenging the order of a nonparty gov't agency/officer, mail them a copy.

2. US Agency/Corp/Officer/Employee a. Serve US as above b. Send copy of summons and complaint by mail to that agency/corp./officer/employee (can get a reasonable extension of time if AG or US attorney served in time) c. If the employee is being sued as an individual, serve US and serve that person according to individual rules (can get reasonable extension of time to serve the US)

3. Foreign a. In accordance with 28 USC 1608.

4. State/Local Government a. Deliver on CEO of government (governor, mayor) OR b. Follow state law iv. Corporation

1. Same way as an individual OR

2. Serve officer, managing or general agent, or any other agent authorized by appointment or by law. v. Minors or Incompetent Persons 2

1.

2. 3.

Follow state law if domestic Follow outside the US rules excluding: a. Internationally agreed means b. In person or mail unless expressly proscribed by the country vi. By Mail via Waiver of Service:

1. If you waive you get 60 days from the date the request was sent to send your answer (90 if overseas)

2. Waiving service does not waive right to object to personal jurisdiction or venue

3. Addressed to D

4. Include name of court

5. Include copy of complaint, 2 of waiver, and prepaid means of returning

6. Must show date sent

7. Must give reasonable time to reply regarding waiver (30 days from date sent, or 60 if overseas)

8. "First class mail or other reliable means" vii. Rejection of the Waiver

1. P obliged to serve by hand

2. D will then have 21 days from hand service for answer/motion

3. D must bear costs of service and attorney's fees of any motion required to collect service costs. viii. You can use deception, but not criminal fraud (dressing up, concealing identity, inviting for a drawing/prize, etc.) Answer (Rule 8 and 12) a. D has 4 options to respond: Answer, Rule 12 motion, Rule 56 summary judgment motion, take no action and accept default judgment. b. Rule 8 Procedure: i. Timing

1. Can file motion, answer, or both in response to complaint

2. If no waiver: 21 days to respond from date of service

3. Government/agencies/government employees get 60 days to respond

4. If serviced waived: 60 days if within U.S., 90 days if outside U.S. from when it was mailed

5. If you file a motion instead of an answer you get 14 days to file the answer after getting notice of the court's action on the motion ii. Substance

1. Short and plain terms of defenses to each claim. Majority: Twiqbal standard of plausibility applies.

2. Admit, deny, or deny knowledge needed to answer each allegation

3. Admissions or denials are binding a. May be amended if new info made available during discovery

4. Failure to deny is treated as an admission

5. Must raise all affirmative defenses a. If you don't raise them here, must add them via amendment (within 21 days of service of your answer per Rule 15)

6. Present counter facts not raised in complaint

7. May state defenses in alternatives, regardless of consistency iii. Service: Rule 5

1. Must be served on every party, default to attorney a. If there are a lot of D's, court can rule that not every pleading goes to every party.

2. Method: a. Hand service b. Leaving at their office c. Leaving at their abode if no office or the office is closed d. Mailing it to last known address e. Leaving it with the court clerk if there is no known address f. Email if consented to in writing g. Any other means consented to in writing 3

c.

4. Rule 12 Procedure i. 12(b) Motions to Dismiss:

1. Waiver: you waive your right to (2)-(5) if you do not raise them on your first response or under a permissive amendment under rule 15(a)(1) (within 21 days)

2. Any 12(b): If court grants motion, it may: a. Dismiss with prejudice b. Dismiss without prejudice c. Order amendment

3. (1) Lack of SMJ (can be brought at any time because it is a limit on the court's power)

4. (2) Lack of personal jurisdiction

5. (3) Improper venue

6. (4) Insufficient process a. Usually a clerical error; the judge just orders the pleadings to be redone instead of dismissing.

7. (5) Insufficient service of process a. D was never served; service went to wrong address; etc.

8. (6) Failure to state claim on which relief may be granted a. May be brought any time before trial b. May be based on insufficient facts, far-fetched facts, or legal insufficiency (no cause of action allowing for recovery for stated facts).

9. (7) Failure to join required party under Rule 19 a. May be brought any time before trial. b. Dismissal is under 12(b)(7), not under Rule 19 ii. 12(c): Motion for Judgment on the Pleadings (after pleadings are closed) iii. 12(e): Motion for a More Definite Statement: used to be used against pro se plaintiffs or for vague claims, now obsolete due to Twiqbal standard for 12(b)(6) iv. 12(f) Motion to Strike

1. Redundant, impertinent, or scandalous/nonsense claims

2. Prevents nonsense from being litigated

3. Can be from complaint or answer

4. Can be used against insufficient defense v. All Rule 12 motions must be resolved in a hearing before trial unless the court orders a deferral on action on the motion until trial. Amending the Pleadings (Rule 15) a. Amendment as a Matter of Course (15(a)(1)): i. May amend your own pleading within 21 days of serving it ii. If your pleading requires a response you may amend it within 21 days of receiving that response

1. Includes: complaint, counterclaim, crossclaim iii. You only get one amendment as a matter of course. Everything else requires the permissions required below. b. All other situations: i. Requires permission of opposing party or court's leave ii. Court should give leave "when justice so requires" iii. Liberal rule. c. Time to Respond to Amended Pleading i. 14 days after service of amended pleading, or until the end of your initial window for response, whichever is greater d. During and After Trial: i. Based on Objection at Trial: if evidence is objected to for not addressing issues from pleadings they may be amended to raise such issues with permission of the court so long as it does not prejudice the other party e. Exceptions to the Liberal Amendment Standard i. Unfair prejudice (substantial delays in amending) ii. Amendment would strip court of subject matter jurisdiction iii. Futile amendment clearly outside SOL iv. Nonsense amendment that would only increase costs f. Relation Back

4 5.

6. i. Amendment that otherwise would fall outside the SOL can be added if it relates back to the same conduct, occurrence or transaction that gave rise to the initial claim. ii. Ways to relate back: the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out---or attempted to be set out---in the original pleading

1. If the claims are from the same contract or interlocking contracts, they relate back

2. Factual/evidentiary overlap is evidence of relation back

3. Same event or series of events that are in some way related

4. Tran v. Alponse: different type of conduct not mentioned in the pleading did not relate back (adding a RICO claim for bribery of union officials did not relate back to an original complaint listing merely with failing to pay sufficient wages from hours) g. Mistaken or Additional Party Rule 15(C)(1)(c) (remember Rule 11 could come into play) i. P may add a new D after SOL expires OR change the name of D if he initially sued the wrong D IF:

1. Satisfies same transaction or occurrence test

2. The correct D had notice of the action AND

3. The correct D knew or should have known that the only reason it wasn't named as a party was because of a mistake concerning the named party's identity. ii. This is a higher standard than the relation-back doctrine. Designed to get mistaken parties out of court, not to give P more time to find out who the correct D is.

1. General strategy: Cast a wide net and sue too many parties (several officers from a police department) instead of guessing at the party (Officer John Smith when it could have been Smith, Jones, or one of many others). Best to sue "Three Unknown Officers of the Charlottesville Police Department"

2. However, suing a large number of people when only one person can be the proper defendant leaves you at risk of Rule 11 sanctions.

3. Most judges will by sympathetic as long as you are transparent (little or no sanctions applied) iii. Relation back and SOL: if the SOL is up and you mistakenly missed a party, that party must have known or should have known that action would have been brought against him but for a mistake (e.g. Aquaslide) Statute of Limitations: a. Affirmative defense in defendant's answer or in a motion for summary judgment b. Clock starts running when a reasonable plaintiff would learn of their need or power to file a claim c. Runs date to date (if 1 year, January 1 to January 1) d. Encourages plaintiff to be diligent--be aware of the law, the fine print and their rights e. Justifications: economic (cannot extend liability into perpetuity), logistical (evidence, etc.), fairness (there must be finality) f. Exceptions: i. Equitable Estoppel: If D took action to discourage P from filing within the SOL ii. Fraudulent Concealment: If D covered up evidence and that evidence did not manifest itself until after the SOL iii. At court's discretion to allow P to file when one of these conditions is present. Sanctions under Rule 11 a. Uses: (for complaints, answers, cross/counterclaims, or other motions) i. TEST: Objectively unreasonable ii. For things that are not only wrong, but objectively unreasonable iii. Applies to pro se plaintiffs as well iv. Failing to correct mistakes after discovery v. Suing for improper damages vi. Failing to do preliminary research/inquiry vii. Generally wasting the court's time viii. No reason to believe there is any evidentiary support for an alleged fact ix. Note: go to the lawyer and firm (unless rogue), not the party b. Procedure: i. Other party must have filed paperwork in violation of Rule 11's standards of reasonability ii. Must be served upon the party with means under Rule 5 iii. Safe Harbor Provision: Party has 21 days to correct what is being challenged under Rule 11 before it can be filed with the court. 5

iv. File motion with court seeking relief under Rule 11 after 21 days expire v. Court has the authority to raise a Rule 11 issue sua sponte vi. Court can hold a show-claim hearing where party can argue that it shouldn't be subject to Rule 11 sanctions vii. The court considers these subjective factors in ruling on a Rule 11 motion:

1. Time constraints on the party

2. Experience of the attorney

3. Ease of access to the information needed to correct the error

4. Party's ability or inability to get this information

5. The degree of the party's unreasonableness

6. Conduct despite Safe Harbor warning c. Sanctions: i. Court will generally only apply sanctions if party failed to act during safe harbor window ii. Sanctions: admonishment (public shaming on attorney and law firm); monetary, dismissal.

1. Most common monetary sanction is the covering the costs incurred by the Rule 11 process

2. Attorneys can be sanctioned for pursuing a frivolous civil claim instead of dropping their client. Civil P has no right to an attorney.

3. Severe sanctions are only applied when a party has had multiple opportunities to correct their behavior and has not responded. iii. Factors to Consider for what sanctions to apply (Hammary v. Soles)

1. Reasonableness of the injured party's request for fees/expenses

2. Minimum necessary for deterrence

3. Sanctioned party's ability to pay

4. Other factors relating to the severity of the violation Summary Judgment (Rule 56)

1. Standard/Test: a. (1)Is there a dispute over any material facts?
i. Resolve all ambiguities in favor of non-moving party b. (2)Is the moving party entitled to judgment as a matter of law?

2. Ways to Win: a. Show that a party with the burden of proof cannot provide enough evidence on one element b. If there are no disputes of facts and the law favors your side of the case c. The party with the burden of proof can give evidence generally proving each element of the case and the other part cannot come forward with counter-evidence d. Indemnification clause is not grounds for no liability

3. General Notes a. Most common way to win: party cannot carry its burden of proof on some required element i. Failure to meet one element results in dismissal of entire claim. ii. Cannot accept versions which contradict existing evidence (i.e. if the dispute isn't genuine) b. With no dispute over material facts, the side the law favors will win. c. Material Facts: Go to the elements of the claims/defenses and are used to prove or disprove them d. Moving party may bring its own evidence, but is not required to. i. If non-moving party's evidence isn't strong enough to fulfill the elements of its case, it loses. e. Minority situation: Party with the burden of proof can win summary judgment if: i. Its evidence is strong enough to genuinely prove every single element of their case ii. Opposing party offers nothing to refute this evidence f. Ex: NHL v. Metropolitan Hockey Club Inc. g. Ex: Celotex (made it easier to get summary judgment)

4. Procedure a. Rule 56 motion may be filed any time after pleadings up until 30 days after close of discovery b. Party may file for summary judgment on certain claims or defenses and not others. c. Hearing is argued before the judge i. First chance to present evidence

1. Evidence does not need to be in a form admissible at trial. The substance needs to be admissible, but the form need not be. ii. Judge looks at both pleadings and evidence 6

d. e. f.

5. Policy a. b. c.

Information obtained during discovery is admissible during summary judgment hearing Non-moving party can move to delay hearing (or the court can sua sponte) in order to provide opportunity to properly support or address a fact Winning summary judgment: i. P wins (rarer) by proving all elements beyond preponderance of a doubt ii. D wins by showing P has failed to meet burden on an element iii. May be granted to the non-moving party by the court after they give opportunity for response iv. If summary judgment is not granted, either side may still win at trial Part of the purpose of discovery is to prepare for summary judgment Prevents juries from being burdened with cases where there is no dispute of fact i. Judge alone can settle pure matters of law Prevents court from having to hear cases where P clearly cannot meet burden.

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