Civil Procedure Outline

Civil Procedure – University of Virginia School of Law

Pretrial

Pleadings:

1. Complaint (Rule 8)

   1. Procedure:

      1. 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

      2. Substance: Must include...

         1. Grounds for Jurisdiction

         2. Grounds for Relief (state/federal law or common law claims)

            1. One claim per paragraph

         3. Demand for Relief

            1. Ex: money or injunctive order

            2. Can be in the alternative, regardless of consistency

            3. Must explicitly request punitive damages or other special damages

         4. Policy/Strategy:

            1. Don’t plead yourself out of court (admitting stupid things)

            2. Don’t just make legal conclusions

            3. Anticipate Defenses

            4. The lower the standard, the less likely amendments will be required

            5. Post-Twombly/Iqbal (Twiqbal): err on the side of more detail

            6. Time, place, people, events, harm done

         5. Twiqbal Standard to survive a Rule 12(b)(6)

            1. Standard: Facts plausible on their face.

               1. Must go beyond assertions and conclusions

               2. Plausible: “more than possible but less than probable”

               3. 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.

               4. Unanswered Question: absolute or relative plausibility (on it’s own or compared to D)

            2. Major Concerns/Policy:

               1. Definition of plausible: must it be plausible on its face or must it be more plausible than the answer?

               2. Is this too strict for cases when there are informational asymmetries?

               3. Does this force people to put in facts that may help the defendant or to plead themselves out of court?

               4. Policy: Protect D from high discovery and settlement costs in cases where P has no plausible chance of winning,

            3. 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)

               1. 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):

   1. Must serve court Summons and a copy of the complaint

   2. Must also include:

      1. Name of the court and parties

      2. Directed to the defendant

      3. Name and address of P’s attorney

      4. State time that D must appear

      5. Notice that failure to appear = default judgment (Rule 55)

      6. Signature of the court clerk

      7. Court’s seal

   3. Method of service (to individuals):

      1. 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.

      2. 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

            1. Email

            2. EIC mail service

            3. Service of attorney/representative (court must declare them an authorized agent first)

            4. Publication (only if they are practically impossible to identify/find)

            5. Appointed family member

            6. 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?

      3. Government

         1. United States:

            1. 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

            2. Mail copy to the Attorney General AND

            3. If challenging the order of a nonparty gov’t agency/officer, mail them a copy.

         2. US Agency/Corp/Officer/Employee

            1. Serve US as above

            2. 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)

            3. 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

            1. In accordance with 28 USC 1608.

         4. State/Local Government

            1. Deliver on CEO of government (governor, mayor) OR

            2. Follow state law

      4. 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.

      5. Minors or Incompetent Persons

         1. Follow state law if domestic

         2. Follow outside the US rules excluding:

            1. Internationally agreed means

            2. In person or mail unless expressly proscribed by the country

      6. 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”

      7. 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...

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