Pleadings & Joinders

Pleadings

  1. Policy Based
    1. Complicated Sys. 2 Screen Out
    2. Loose sys. 4 giving cases a chance
  2. Formal v. Substantive Reqts
    1. Code / Field Pleading (CA, TX, LA)
      1. Four types
        1. Complaint
        2. Ans.
        3. Reply
        4. Demurrer
      2. Facts constituting C/A not evid. / concl. (ex. of Palsgraf, p. 421)
    2. Notice Pleading: Fed. Sys.
      1. Just show probably has good claim
      2. Rule 8 req's short & plain stmt (Conley p. 341, 23 11/6)
        1. Sub a)1 4 subj. matter jxn
        2. Sub a)2 4 4 claim showing entitled 2 relief
        3. Sub a)3 4 showing demnd 4 jgmt
      3. Only 2 give respondent (Conley, Gillispie p. 335 11/6)
        1. Fair notice not facts 4 C/A
        2. Ground 4 claim / legal basis 4 relief
      4. Rule 84 says forms R suff. 4 fed. ct (Ex. Form 9, p. 166 of suppl)
      5. Can't dismiss 4 failure 2 state a claim unless it's beyond doubt that P can prove no set of facts which would entitle him relief (Gillispie 11/6)
    3. LOOK AT P. 345-6, PROB B (11/8)
  3. FRCP Expanded
    1. Look @ 11/12 lec. 4 pract'al proced. of filing (docket, complaint #, etc.)
    2. Motions attacking complaint: Rule 12 (Fox v. Lummus p. 348, 11/12 2 see applic.)
      1. Adv's of motions over ans's
        1. Not waive defenses
        2. Not have 2 ans. & 10 more days 2 ans. if motion denied
      2. Sub b)6: failure 2 state claim
        1. Rarely granted b/c of Conley stand. that must have no set of facts on which P entitled 2 relief
      3. Sub e: motion 4 more def. stmt
        1. So vague can't respond, then pt. out defects & details needed
        2. If motion granted & didn't amend w/in 10 days, ct may strike the pleading as it deems just
        3. Not dismiss case
      4. Sub f: motion 2 strike
        1. Can erase from complaint
      5. Shells of dismissing stuff
        1. Can cut out partic. allegation (like a sentence)
        2. Can file motion 2 dismiss 1 / all claims
        3. If all claims dismissed, complaint dismissed
        4. If complaint dismissed & didn't try 2 amend, then axn dismissed
    3. Actual proced. in fed ct (11/13)
    4. Complaint
      1. Rule 2 says there's civil axn
      2. Rule 3: civil axn commenced by filing a complaint w/ct
      3. Rule 7 allows complaint, ans.'s, & reply (4 counterclaims)
      4. Rule 10 gives format of pleading
      5. Rule 8 gives notice pleading reqt
      6. Rule 9)b & g R spec. rules 4 fruad / mistake & spec. damages
        1. Make it harder 4 P 2 raise & show more specif. b/c 2 ez 2 bring these claims (Sweeny p. 354 11/15)
    5. Ans.
      1. Rule 8)b contains defenses, denials, & admissions
        1. Must meet fairly substance of averrments denied
        2. Can gen'ly deny everything but subj. 2 Rule 11
        3. Rule 8)d says failure 2 deny is admitting if req. responsive pleading
      2. Rule 8)c 4 aff. defenses
        1. To put P on notice b/c it's a surprise defense
        2. Qualified immunity may B aff. defense which isn't listed (Gomez v. Toledo) b/c D knows better than P
      3. Rule 13)a-c of counterclaims
      4. Rule 13)g 4 cross claims
      5. Rule 7: ans. 2 cross claim & reply 2 counterclaim denominated & ct can order reply 2 ans. / 3rd party ans.
    6. X 2 respond
      1. Rule 12)a 4 X'ing / Rule 4 if waived serv.
      2. If defending party makes motion, then X stops until motion granted / denied
    7. Heightened pleading stand.
      1. No partic. / 'ed pleading stand. (Leatherman Case p. 355 suppl, 11/19) 4 1983 claims against municipalities b/c Rule 9 doesn't incl.
      2. But cts can order reply 2 ans. / 3rd party ans. by Rule 7
  4. Sanction
    1. Three Ways
      1. Rule 11 which is paper sanction
      2. Inherent pwr 2 sanction (Willy Case p. 361 suppl 11/22)
      3. Sec. 1927
    2. Issues 2 Ask (11/20)
      1. What is the basis 4 sanctions
      2. Should counsel have been sanctioned
      3. What sanction is approp.
    3. Rule 11
      1. Reqt 4 Sanction
        1. Have 2 sign b/c only sanction signers
      2. Cases on Old Rule 11
        1. Eastway (p. 377 11/20) where sanctioned 4 unrsbl investig. b/c no way 2 have claim by fact & law
        2. Business Guides (p. 387 11/20) rep'ed client signed so sanctioned & party subj. 2 same stand. as atty stand.--rsbl care
      3. New Rule 11 & reqt's (11/22)
        1. Today 11)c)1)a says lawfirm SHALL B liab. 4 partners, assoc., & ee's
        2. DISCRETIONARY sanction: 11)c) MAY subj. atty, lawfirms, / parties
        3. Rep'ed party can B sanctioned 4 factual stuff (c)2)A & b)2)
        4. Ct can do $ sanction on its own if orders show of cause before vol. dismissal / settlement but can't do it after (c)2)B)
        5. No more atty fee shifting so limit sanction 2 what's deterrant, not reimbursement (c)2)
        6. Must keep up / rev. papers 4 rsbl investig. (11)b & advocate)
    4. Can Sanction Miscond. Even if No Subj. Matter Jxn
      1. By inherent pwr / 1927
  5. Amendment Rule 15
    1. Three Part Analysis (11/26)
      1. Can U amend @ all
      2. During / after trial
      3. New parties
    2. Amend 2 all
      1. May amend once as matter of course before responsive pleading (ans.) / before 20 days if no responsive pleading req'ed (15)a)
      2. Ct has discretion 4 2nd amend. by leave of ct. & freely given when justice req's (15)a)
        1. To deny amend., opposing party need more than being worse off / prejud. like undue delay, bad faith, repeated failure 2 amend, & undue prejud. (Beeck v. AcquaSlide 11/22, 26)
    3. Before, During / After Trial
      1. Closer 2 / @ trial, req. more from party wanting amendment
      2. Can amend during trial by Rule 15)b : evid. drives pleading
        1. Issues must B tried by express / implied consent of parties
        2. If obj., then ct may allow pleading 2 B amended freely / obj'ing party must show prejud. 2 maintain / defend, then ct can cont.
        3. If not obj, then implied consent
      3. After trial, can amend by rel'ing back (15)c)
        1. If S/L ok's & not have 2 worry about rest of Rule 15
        2. Arose out of cond., trxn/ occur in orig. pleading
    4. New Parties: 4 Mistaken ID
      1. Harder 2 rel. back (Shiavone Case p. 411)
        1. Rule 15)c)2 of arising under cond., trxn / occur +
        2. Rule 4)m 4 serv. of summon received so not prejud'ed in defending +
        3. Knew / should've known but 4 mistake axn would've been brought
  6. Joinders of Claims & Parties
    1. Overall Analysis
      1. If Rules Allow
      2. Subj matter jxn
      3. Pers'al jxn (4 new parties gen'ly)
      4. Permissive v. Compulsory
    2. Claims
      1. Counterclaims (Rule 13): Cavanaugh Case p. 441
        1. Reqts
          1. Against opposing party
          2. Subj matter of opposing party
          3. Trxn'al nexus (arise out of trxn / occur)
            1. If no, permissive (13)b)
            2. If yes, compulsory (13)a)
              1. Means that can't raise it again later if fail 2 raise
        2. Subj matter jxn
          1. For compulsory, gen'ly 1367, suppl help out b/c of trxn nexus
          2. For permissive, need indep. arise under 1331 / diversity
          3. ALWAYS NEED SUBJ MATTER JXN
      2. Crossclaims (Rule 13)g): ALWAYS PERMISSIVE
        1. Reqts
          1. Against co party
          2. Subj. matter of orig. axn / counterclaim / rel. 2 any prop.
          3. Trxn'al nexus
        2. Subj matter jxn
          1. Likely 2 get suppl. jxn b/c of trxn nexus
      3. Joinder of Claims (Rule 18)a)
        1. Reqts
          1. Permissive b/c may
          2. Can join anything & everything as long as get 1 of the claim fit under the rule: orig., counterclaim, cross claim, / 3rd party claim
          3. Party has against opposing party
        2. Prob.: Substantive Matter
          1. Subj matter jxn
    3. Parties
      1. Impleader (Rule 14)a): Barab v. Menford p. 450 11/27
        1. Reqts
          1. Derivative liab. that 3PD has 2 D, 3PP (lang. of rule)
          2. Not bring in 3pd b/c think P forgot 2 bring another party in / 3pd liab. dir'ly 2 P; Must B liab. dir'ly 2 D
      2. Joinder of Parties
        1. Permissive (Rule 20) (Grogan v. Babson p. 454 12/3)
          1. Reqts
            1. Trxn'al nexus / series of trxn
            2. At least 1 commonality of law / fact
          2. Remedy 4 Not Mtng Reqts
            1. Severance b/c misjoinder not ground 4 dismissal (Rule 21)
        2. Compulsory (Rule 19)
          1. Ord'ly raised by D by Rule 12)b)7 2 dismiss axn
          2. Must qualify under Rule 19)a
            1. Joined if absent, compl. relief can't B accorded or
            2. Person claims int. rel'ing 2 subj. of axn & is sit'ed
              1. Pract'al matter impair / impede ability 2 protect int.
              2. Leave any person already parties subj. 2 subst'l risk of incurring double / inconsistent oblgns
          3. If not qualify, then not worry about joining
          4. If qualify, then ct should order joinder
          5. When joinder not possible
            1. Deprive subj matter jxn
            2. Lack of pers'al jxn
            3. Venue improper + obj. by party
            4. THEN Rule 19)b analysis (Provident Case analysis)
            5. Can dismiss axn / go ahead w/o the nec. party

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Ms. Haeji Hong

January 15, 1998
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