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Civil Procedure II Outline - Part 1

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Part 2 >>

Rules of Civil Procedure and What They Govern 8 General Rules of Pleading

(A) Claim for relief. A pleading that states a claim for relief must contain

  1. A Short and plain statement of the rounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdiction support
    1. Analysis of the rule Requires only to plead a claim sufficient to let the opposing party know what that plaintiff is complaining about.
  2. A short and plain statement of the claim showing the pleader is entitled to relief; and
    1. Analysis
      1. A flaw may be a pleading oversight that can be cured by amendment rather than a (incurable) reflection of absence of fact
  3. A demand for the Relief Sought, which may include relief in the alternative or different types of Relief
12 Defenses and Objections; When and How Presented; Motion for Judgment on the Pleadings, Consolidating Motions, Waiving Defense; Pretrial Hearing

(a) Time to Serve a Responsive Pleading.

  1. In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
    1. A defendant must serve an answer:
      1. within 21 days after being served with the summons and complaint; or
      2. if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.
    2. A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.
    3. A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.
  2. United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
  3. United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.
  4. Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
    1. if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
    2. if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

  1. lack of subject-matter jurisdiction;
  2. lack of personal jurisdiction;
  3. improper venue;
  4. insufficient process;
  5. insufficient service of process;
  6. failure to state a claim upon which relief can be granted; and

    • Analysis 12(b)(6) = confined to “four corners of complaint” -Takes well-pleaded allegations of complaint as true + only those
      • IF thoseFacts outside of 4 corners to support/oppose a Rule 12(b)(6) motion to dismiss for failure to state a claim
        • Court can then treat motion as a summary judgment motion (has to tell parties it is doing this--12(d))
          • Motion decided by standards of summary judgment rule (Rule 56)

    Court can grant summary judgment if it finds that the material facts are undisputed and moving party is entitled to judgment as a matter of law

  7. failure to join a party under Rule 19.

    A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

  • Analysis of 12 E - Motion only available when the pleading “is so vague or ambiguous that the party cannot reasonably prepare a response” -Incorporating prior allegations by reference + even failing to separate counts cleanly doesn’t make a complaint subject to Rule 12(e) motion

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

  1. on its own; or
  2. on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

    Analysis- Rule 12(f) motions = target redundant, immaterial, impertinent, or scandalous matter

(g) Joining Motions.

  1. Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
  2. Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
    • Analysis of 12(g) - “Omnibus motion rule” = effectively requires a party to consolidate all of Rule 12 defenses + objections then available to it in a single omnibus pre-answer motion, instead of presenting them serially.
      • Prevents parties from raising it again by another pre-answer motion and raising Rule 12(b)(2)-(5) defenses again by any means
      • Doesn’t require a party to file a pre-answer motion, matter of IF they do
        • Exception Omnibus motion rule only applies to Rule 12 defenses that are “available” to party when it filed the pre-answer motion
          • When P amends original complaint and the amendment adds new claims, it can raise new issues not present in original pleading
    • Rule 12(g)(2) = forbids party from making another motion under Rule 12 based on a defense or objection that was available to it when filing pre-answer motion

(h) Waiving and Preserving Certain Defenses.

  1. When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:
    1. omitting it from a motion in the circumstances described in Rule 12(g)(2); or
    2. failing to either:
      1. make it by motion under this rule; or
      2. include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

        Analysis Rule 12(h)(1)(A) = omitting any of Rule 12(b)(2)-(5) defenses of lack of PJ, improper V, insufficient process, or insufficient service of process from the pre-trial answer motion waives that defense

  2. When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
    1. in any pleading allowed or ordered under Rule 7(a);
    2. by a motion under Rule 12(c); or
    3. at trial.
  3. Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether made in a pleading or by motion—and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

55 Default Judgment

a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

Analysis of Rule 55 A

  • Rule 55(a) = clerk shall enter default only if there has been a default AND that failure is shown by affidavit or otherwise
  • P must bring the fact of default to clerk’s attention, usually through filing an affidavit

(b) Entering a Default Judgment.

  1. By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
  2. By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to:
    1. conduct an accounting;
    2. determine the amount of damages;
    3. establish the truth of any allegation by evidence; or
    4. investigate any other matter.

Analysis of 55(B)

  • Rule 55(b) = not mandatory; courts have discretion to enter a DJ or not
  • D entitled to min of 7 days’ written notice about entering DJ where D can argue about entering a judgment + set aside entry of default

(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b)

Analysis of 55(C)

  • Default is disfavored; easy to set it aside “for good cause” (Rule 55(c))
  • Once DJ entered = standard tightened; final judgment on which P and others may have relied
  • Setting it aside may be prejudicial to such parties--especially if some time has passed since entry

(d) Judgment Against the United States. A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.

  • Analysis of Whole Rule
  • Authorized by Rule 55: Occurs if non-defaulting party + court carefully follow prescribed procedures
    • Why they can happen:
      • D’s are judgment proof and elect to it
        • Judgment proof = have not assets from which judgement can be collected
      • Ds gamble that default judgment winner will not track down their assets in order to enforce the judgment
60 Relief from a Judgment or Order

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions.The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

  1. mistake, inadvertence, surprise, or excusable neglect;
  2. newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
  3. fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
  4. the judgment is void;
  5. the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
  6. any other reason that justifies relief.

Analysis of 60B

  • Defaulting party has to move for relief under Rule 60(b)

(c) Timing and Effect of the Motion.

  1. Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.
  2. Effect on Finality. The motion does not affect the judgment's finality or suspend its operation.

Analysis of 60C

  • Excusable neglect or mistake
  • Courts have to consider if default was wilful, whether setting it aside would Prejudice P + Whether F has any meritorious defenses

(d) Other Powers to Grant Relief. This rule does not limit a court's power to:

  1. entertain an independent action to relieve a party from a judgment, order, or proceeding;
  2. grant relief under 28 U.S.C. §1655 to a defendant who was not personally notified of the action; or
  3. set aside a judgment for fraud on the court.

(e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.

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