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Civil Procedure II Outline - Part 12

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<< Part 11 | Part 13 >>

475 – 477, 482 – 503

Responding to Complaints Intro
  • Allowed to just ignore a complaint
    • FRCP don’t force a D to respond affirmatively in any way to a complaint
      • Spells out consequences of NOT responding: sequence of steps resulting in default judgment
  • Default judgment:
    • 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
  • Other options:
    • Move to dismiss complaint under Rule 12
    • Answer complaint
      • Answer = pleading that admits or denies factual allegations in complaint, sets out defenses, and (if D has some) asserts counterclaims by D against P or crossclaims against co-Ds
  • Rule 8:
    • Sets out specific requirements for admissions and denials + provides an illustrative list of affirmative defenses
      • Affirmative defenses = defenses setting forth new matter outside the original complaint in the tradition of pleas of confession + avoidance at CL
Default Option
  • Strategic but risky option:
    • Courts insisting on proper proof of service in record before they entertain motion for default judgment
    • If D has defenses, should be asserted by motion or answer
    • If defaulted for doing notion = D has themselves to blame
  • Getting a Default Judgment:
    • Rule 55(a) = failed to plead or otherwise defend
      • Note: this is a matter of whether it occurs during the set amount of time; could be a default as a result of missing this 21 day window
    • How to enter a default:
      • Entry = actual notation in the docket
        • Docket = clerk-kept list of filings, hearings, and orders
        • 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
            • Affidavit = sworn written declaration of facts
    • Whether non-defaulting party can enforce entry to collect damages from defaulting party:
      • NO. They can’t. Difference between default + default judgment.
        • Default = failure to respond as rules require
          • Entry of default is a step in obtaining DJ + NOT an enforceable judgment in itself
    • Standards of entering default judgment:
      • By default = admitting facts alleged in complaint; whether facts establish liability is question of law for court
      • DJ can’t be entered unless court finds complaint states a claim for which relief can be granted
      • 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
    • Service and PJ
      • Courts deciding motion for DJ will typically require that record show that proper service was made
        • Some courts will deny motion if D makes credible showing that it never received actual notice
      • Court will often look for evidence that it has PJ over defaulting party before entering DJ
  • Setting Aside DJ:
    • 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
      • Defaulting party has to move for relief under Rule 60(b)
        • Places time limits on motion for certain causes
          • excusable neglect or mistake = Rule 60(c)
            • Courts have to consider if default was willful, whether setting it aside would prejudice P, + whether D has any meritorious defenses
        • Courts set aside judgments as “void” if they find service was never made or the court lacked PJ
Rule 12 Motions
  • 12(b) = checklist of most common defenses that can be raised by a motion to dismiss
  • Understanding Matos:
    • Rule 8(a)(2) and Rule (12)(b)(6) contain essentially reciprocal standards
    • Leave to amend
      • Routine on motions to dismiss for failure to state a claim when complaint is merely missing a factual allegation corresponding to an element of the claim
        • A flaw may be a pleading oversight that can be cured by amendment rather than a (incurable) reflection of absence of fact
    • No such thing as an independent, free-standing claim for punitive damages
      • Punitive damages = element of damages for a claim
  • Motion to strike:
    • Cuts up the complaint leaving stricken matter to be treated like it wasn’t there (can be stricken from the record)
    • Rule 12(f) motions = target redundant, immaterial, impertinent, or scandalous matter
  • Rule 12(e) motion:
    • 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
        • Rule 10(c) = incorporation by reference
        • Rule 10(b) = separation of claims to promote clarity
  • 4 Corner of Complaint:
    • 12(b)(6) = confined to “four corners of complaint”
      • Takes well-pleaded allegations of complaint as true + only those
    • 2 exceptions:
      • Filing a Rule 12(c) motion for judgment on the pleadings
        • Court can consider well-pleaded factual allegations of all the pleadings, answer, reply (if present), and complaint
      • Parties may present matters outside of the pleadings
        • Facts 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
Rule 12 Waiver Trap
  • Rule 12 = permits D to assert several different defenses + objections to complaint but can’t do them one at a time
    • Requires joinder of available defenses + objections in one pre-answer motion
    • Imposes waiver as a penalty for leaving certain defenses out
  • 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
  • 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
  • Rule 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
  • Putting Rule 12(g)(2) + 12(h)(1)(A) together = only the 4 defenses in 12(b)(2)-(5) are waived by omitting the from a pre-answer motion or answer (Whichever first)
  • Un-waivable defenses:
    • Rule 12(h)(3) = permits motion to dismiss for lack of SMJ at any time
    • Potentially more on pg. 500?
  • When a defense is unwaivable:
    • 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

503 – 524

Answering the Complaint
  • If pre-answer motion fails = must file answer w/i 14 days after notice of court’s action on the motion (Rule 12(a)(4)(A))
    • Courts can take months to rule on Rule 12 motions, so 14 days isn’t a firm cap on the amount of time
  • 4 Options for Answer:
    • Assert “leftover” Rule 12(b) defenses
      • Any defense party hasn’t waived by omitting it from a pre-answer motion
    • Must admit/deny factual allegations of the complaint (Rule 8(b)(1)(B))
      • Main purpose of pleading = ID facts in dispute
        • Denying 1+ facts essential to a claim is a defense
      • Denial = defense on the merits
    • Affirmative defense (Rule 8(c))
      • Provides excuse from liability based on facts outside of the complaint
    • Asserting counterclaims or crossclaims
      • Rule 4 = if already joined as parties to a lawsuit, a D doesn’t have to serve summons or separate complaint to other parties
      • Rule 5 = allows service of answers + other papers in civil action by mailing or emailing paper to a party’s attorney of record
        • Applies when recipient has consented in writing
  • D isn’t required to choose any of those options (Rule 8(d)(2))
    • Also has option to incorporate them all into answer
  • Challenging the Legal Sufficiency of a Defense:
    • P must have same opportunity to challenge legal sufficiency of defense as D does to a claim
      • Rule 12(f) = motion to strike an insufficient defense
        • Basically, this is the P’s version of a Rule 12(b)(6) motion
        • If done, courts and parties treat the existing answer as if that defense was no longer included in case
  • Generally Denying:
    • Rule 8(b)(3) = allows D to enter general denial to complaint in fed court
      • Note: rule is skeptical of them
      • Only applies when a party intends in good faith to deny all the allegations of a pleading
      • Majority of fed cases: D will have to admit at least some allegations of a complaint
    • CL general denial essentially obsolete
  • Admitting and Denying:
    • Rule 8(b)(2) = denial has to fairly respond to the substance of the allegation
    • Rule 8(b)(4) = requires a D to admit part of allegation and deny the rest when its info so requires
  • When D Doesn’t Have Enough Info to Admit/Deny:
    • Rule 8(b)(5) = party that lacks knowledge or info sufficient to form a belief about the truth of an allegation must so state. Statement has the effect of a denial.
  • Pleading Affirmative Defenses:
    • When making them (listed in Rule 8(c)), D should plead some factual support for each, even if only in short and plain terms
      • Factual support = puts P on notice of the legal bases of defenses
    • Fraud has to be pled with particularity (Rule 9)
Identifying Affirmative Defenses
  • Omitting an AD
    • Rule 8(c) = party must affirmatively state any avoidance or affirmative defense
      • Ingraham = failure to timely plead AD waives the defense
    • If omitted, D should ordinarily be allowed to amend answer to add defense as long as amended answer still gives P sufficient notice to prepare for the defense
      • AD can be raised in TC as long as it is done in a way that doesn’t result in an unfair surprise (Ingraham)
  • Listing ADs
    • Rule 8(c) = no damage caps
    • List in Rule 8 includes all ADs since changing of rule in 2008
  • Difference between ADs and Denials:
    • AD = excuse from liability, even if P proves its allegations
Further Pleading
  • For every claim of any kind that is not dismissed, an answer is allowed
  • Rule 8(b)(6) = if responsive pleading is not required, an allegation is considered denied or avoided
Fundamental Pleading Errors
  • Pleading Lack of Knowledge or Info:
    • Rules do not allow empty-headed pleading (like saying “i don’t know”)
      • Rule 11(b) = presumes pleader conducted a reasonable inquiry, including acquiring reasonably accessible info in order to admit/deny allegations in the complaint
  • Moving for a Failure to State a Claim Again:
    • Redundant to make a 12(b)(6) objection by motion a second time in answer (does nothing)
  • Legally Insufficient Defense:
    • Assumption of risk doesn’t qualify as an AD
      • Listed in Rule 8(c), but doesn’t apply to the case

525 – 543, 554 – 558

Care and Candor in Pleading Intro
  • Nothing in 12(b)(6) or 12(f) protects against dishonest, sloppy, mistaken, or ill-motivated allegations
  • Rule 11 = sets out both standard of care and candor in pleading (also for the filing of other papers before the court) + the sanctions for violating the standard
    • By presenting a paper to the court, attorney of record or party certifies that to the best of the person’s knowledge, info, and belief formed after inquiry under the circumstances:
      1. not presented for any improper purpose
      2. claims/defenses/other legal contentions warranted by existing law or by nonfrivolous argument
      3. factual contentions have evidentiary support or will have it after discovery
      4. denials of factual contentions are warranted on the evidence; if specifically ID-ed, reasonably based on belief or lack of info
  • Presenting = signing, filing, submitting, or later advocating
  • Rule 11 = presenting a paper to court certifies that the presenter believes, after conducting a reasonable inquiry, that the paper has evidentiary support, a legal basis, or a proper purpose
    • Defines form of legal malpractice based on objective negligence standard
      • Bad faith not required to violate the rule. Good faith not a defense against a violation.
  • Care and candor in federal court:
    • Policed by rules of professional conduct, Rule 11, statutes, inherent power of courts to control litigation conduct, and legal malpractice law
Reasonable Inquiry
  • Rule 11’s certifications to court must be based on a pre-filing “inquiry reasonable under the circumstances”
    • 11(b)(3) = tolerates factual contentions that may lack evidentiary support at filing a long a they are specifically ID-ed
  • Reasonable:
    • Involves balancing the costs + time available for investigation against the likelihood that more investigation will turn up relevant law + evidence
    • Doesn’t require steps that aren’t cost-justified
Pre-Filing Inquiry
  • Why reasonableness of pre-filing inquiry doesn’t depend on expertise of lawyer
    • Question of whether any reasonable lawyer would familiarize themselves with issue
    • Rule 11 doesn’t look to standard of care in particular lawyer’s community of practice; rather a national standard
  • Why Guyton’s claim for damages was frivolous:
    • Lacked evidentiary support
    • Rule 11 = depends on both time available to investigate and on the probability that more investigation will turn up important evidence
  • Bad faith:
    • Rule 11 hasn’t required bad faith to find a violation
    • By positing a “reasonable” inquiry, it embraces a negligence standard of care (ignorance is not a defense)
  • Understanding Rule 11(b)
    • It is about what you know (or should know after reasonable inquiry) at the time of presenting that controls
    • Rule 11 taking a “snapshot” of state of idn at time of presenting that serves a basis for deciding whether paper complied w rule
      • No obligation to withdraw paper on basis of later-acquired info
  • Reasonableness factors:
    • Complexity of the factual and legal issues in question
    • Extent to which pertinent facts were under the control of opponents and 3rd parties
    • Extent to which the lawyer relied on the client for facts
    • Whether the case wa accepted from another lawyer and the extent to which the receiving lawyer relied on the referring lawyer
    • Resources reasonably available to the lawyer to conduct an inquiry
    • Extent to which the lawyer was on notice that further inquiry might be appropriate
  • Warranting sanctions:
    • Motions should not be made or threatened for minor, inconsequential violations
    • Court should consider whether a violation infected entire pleading or only one particular count
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