I.        Simple pleading and practice

a.    Pre-code pleading and practice

                                          i.    Common law issue pleading and practice – if you plead wrong writ, out of court.

                                         ii.    Equity pleading & practice – flexible but encrusted with barnacles

b.    Code fact pleading and procedure

                                          i.    Used in colonies. Less formal, but rigid. Abolished common law pleading in favor of fact pleading. Some jurisdictions still use it (CA – pleading on the facts).

   II.        Modern notice pleading -

a.    The specificity of notice pleading – to give notice of claims or defenses

                                          i.    Could just be a notice of suit, or detailed statement of fact

                                         ii.    For the complaint to be dismissed, the pleader has to make allegations that on the face show a bar to relief

                                        iii.    Pleading purpose is more to prepare the defense than to let the court determine case validity

                                       iv.    Court struggles in deciding if they should bar insufficient claims

b.    Consistency and the theory of the pleadings in modern pleading

                                          i.    Test for sufficient of claim is whether pleader has stated a claim under any legal theory

1.    Not wholly there because

1.    Compelled election of the type of claim is not fair

2.    Rule 8(e)(2) and Rule 8(a) allow multiple claims despite inconsistency and alternate claims for relief

3.    Rule 15 (b) allows pleadings are adapted to the evidence and to variances, with consent

2.    But still relevant because of estoppel, statute of limitations, jury, pretrial orders, obligations of candor and care

c.    The form of notice pleading – no special forms; official forms are examples

d.    Special pleading rules in modern pleading – not the norm (ex. Mistake or fraud)

  III.        FRCP Chapter III: Rules of Pleadings, Answers, Amending

a.    Rule 7: Pleadings allowed - complaints, answers to complaints/Crossclaim/counterclaim, 3^rd party complaint, etc.  Request for court order must be made by motion, which must be in writing, specifics of why seeking the order, what relief you want

b.    Rule 8 – General Rules of pleading

                                          i.    8(a) Requires short & plain statement of the (1) claim, (2)grounds for court’s jurisdiction, (3)showing that the pleader is entitled to relief and (4) demand for judgment

                                         ii.    8(b) states that the defendant's answer must admit or deny every element of the plaintiff's claim

                                        iii.    8(c) also requires that the defendant's answer state any affirmative defenses.

c.    Rule 9:  Special Matters.  Rule 9 sets out matters which have special requirements of pleading (for ex. Fraud or mistake requires additional details instead of short statement)

4. Rule 10: Form of Pleading - describes the format required.
5. Rule 11: Signing of the Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

                                          i.    11(a) Everything has to be signed by at least one attorney, or by party if pro se. Also needs contact info of signer.

                                         ii.    11(b) Representations to court - by signing the attorney is certifying to the best of her belief, formed after an inquiry reasonable under the circumstances, that:

1.    it is not being presented for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation

2.    the claims, defenses, and other legal contentions therein are warranted by existing law, or a nonfrivolous argument for modification of a law, or establishment of a new law.

3.    the allegations and other factual contentions have evidentiary support or, will probably have after further investigation or discovery

4.    the denials of factual contentions are warranted on the evidence or reasonably based on lack of reasonable belief or information

5.    Note:  Certification: Rule 11(b) – the certification applies anew each time an attorney or pro se litigant “later advocates” a position contained in the pleading, motion, etc.  Thus, a paper that was not sanctionable when first presented may become sanctionable if the attorney or pro se litigant advocating a position contained in the paper has since learned that the position no longer has merit.

                                        iii.    11(c) Sanctions – The court has discretion to impose sanctions, limited to deter repetition of such conduct, against a party who presents a paper to the court on any of the above requirements, either on the court’s own initiative or on a motion of the opposing party.  Where appropriate, sanctions may be imposed against parties, attorneys, or law firms, and may consist of nonmonetary directives or monetary penalties including payment of expenses and attorneys’ fees incurred b/c of the improper paper.

                                       iv.    Note:  Usually, client will bring the lawsuit last possible moment - only 3 weeks to respond.  If you don’t assert defenses in answer, can’t use it in trial. But if you include every defense, you violate Rule 11.  Usually, a lawyer will get extensions to properly investigate and file the answer with appropriate defenses

6. Rule 12: Defenses and Objections:

                                          i.    12(a): Specifies the time to serve a responsive pleading, unless otherwise stated as federal statute

                                         ii.    12(b): Prior to filing an answer, the defendant may, if he chooses, file a motion and raise any or all of the following defenses:

·         (*Defense that can be raised at any time)

1.    Lack of subject matter jurisdiction

·         (*Defenses that must be raised at the time defendant files a motion or his answer – whichever is first.  If he does not, the he waives these defenses)

2.    Lack of personal jurisdiction

3.    Improper venue

4.    Insufficiency of process

5.    Insufficiency of service of process

·         (*Defenses that can be made at any time until trial ends)

6.    Failure to state a claim upon which relief may be granted (i.e., even if plaintiff’s allegations are taken as true, relief could not be granted as a matter of law); or

7.    Failure to join a party needed for a just adjudication (includes necessary and indispensable parties

                                        iii.    12(c) – after pleadings are closed, a party may move for judgment on the pleadings

                                       iv.    12(d): Result of Presenting Matters Outside the Pleadings.

                                        v.    12(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. If court orders, and not done within time limit, court may strike the pleading or issue any other appropriate order.

                                       vi.    12(f): Motion to strike - The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.   

  IV.        Mitchell v. E-Z Way Towers, Inc. – Mitchell alleges EZ violated the Fair Labor Standards Act and an action for injunction against the defendant. District Court granted defendants motion to dismiss the complaint for failure to state a claim, because there was a lack of specifics on the employees hours and wages—the subject of the Act (actually plaintiff would have to get this from def during discovery, no way for him to have known the specifics).The issue was whether the dismissal was appropriate. Held that it was not.

a.    The complaint should not have been dismissed for failure to state a claim, because it did not appear beyond all doubt that plaintiff could prove no set of facts. The trial court confused FRCP 12(b)(6), motion to dismiss for failure to state a claim, with 12(e), motion for a more definite statement (which just allows for discretion), the latter of which is not grounds for dismissal.

    V.        Allocating the elements – Which party has the burden of pleading, producing evidence, or proving a particular element of a claim? 

a.    Different approaches to systemizing the burden allocation; they are incomplete

                                          i.    Easiest access to knowledge (but doesn’t accurately describe most cases)

                                         ii.    The party asserting the improbable

                                        iii.    Policy – usually a substantive one (rather unclear)

b.    Gomez v Toledo – Gomez is a cop in P.R. when he finds out about some shady stuff going on, and he’s the whistle blower. He gets moved around, then fired. He sues on being denied due process under §1983 (deprivation of rights under color of law), b/c Toledo is a gov’t official.  But §1983 gives immunity to gov’t officials if they were acting in good faith.  So Toledo moves to dismiss under Rule 12(b) – failure to state a claim because Gomez did not says that Toledo was acting in bad faith.  Issue was who had the burden to plead this. Court says it’s Toledo, because good faith/bad faith is an affirmative defense. Basically, all Gomez has to plead are the objective parts.  Toledo subjective intent (good/bad faith) couldn’t be pleaded by Gomez because under Rule 11 – how could he possible state the officer’s intent here? However, Toledo knows what his intent was, so his burden. This would eventually be found out during deposition and discovery, but for pleadings purposes, its def’s burden.

  VI.        Ethical limitations and disfavored claims

a.    Ethical Principles of a limitation – Rule 11 places a great emphasis on the duty of lawyers to avoid abuse of litigation by requiring an attorney to investigate both the legal and factual basis of a claim before filing suit, and by promoting increased use of sanctions for violation of various rules.  Courts have begun using sanctions energetically (some think too energetically) to punish those who bring groundless suits, an effort that may deter some groundless litigation.

                                          i.    Business guides v. Chromatic Communications Enterprises (1991) - Rule 11 requires the lawyer to conduct a reasonable inquiry into the facts and the law before filing a claim, and the applicable standard is one of reasonableness under the circumstances.

                                         ii.    Religious Technology Center v Gerbode (1994) – RTC sues Gerbode on fraud. RTC amended complaint was dismissed. Def argues the claims presented were filed and presented for an improper purpose which was not warranted based on established or existing law. Reasonable inquiry would have had RTC realize that the complaint was unwarranted, so defendant seek attorney’s fees for having to defend against frivolous lawsuit.  Rule 11 says that you have to make reasonable inquiry before submitting the complaint, so court says sanctions ok for plaintiff. Court’s discretion whether to award def attorney’s fees, but here they do, in addition to monetary penalty paid to court.

VII.        Answer – the answer must contain a specific denial or admission of each averment of the complaint, or a general denial with specific admissions to certain averments (Rule 8(b))

a.      Zielinski v. Philadelphia Piers, Inc. (1956) – Zielinski sues PPI on a tort claim. What Zielinski doesn’t know (and he made reasonable assumptions), is that another company CCI, leased PPI’s stuff, and CCI would have been the one liable.  But when PPI answers Zielinski’s complaint, they deny them in general, but not specific parts. If they had plaintiff would have realized his mistake and sued CCI instead. But statute of limitations has run out, so they can’t sue the right party.   The court lets PPI go to trial, and instructs the jury that PPI admitted they were the ones responsible for all equip and employees that caused the tort (so if negligence proved, PPI will be responsible). 

                                          i.    It was an ineffective denial under Rule 8b (which required that defendant file a more specific answer than a general denial).  A proper denial would have broken down the component parts, which would have been a signal to the plaintiff that the plaintiff sued the wrong party.  The plaintiff could have then amended his pleadings.  PPI needed to clearly state that yes, they owned it, but they did not operate it.

                                         ii.    Note: although court believes there was no bad faith here, they still say PPI must go to trial.  A big consideration was that both PPI and CCI had same insurance, which would ultimately pay any damages, so it didn’t really matter who gets sued.  

                                        iii.    If the complaint is written in an organized way, they will get a better answer. But, the burden is on the responding party.

                                       iv.    Note: Rule 15c wasn’t in effect at this time, but if it was could have been used. Amendments given extension if it relates back to original complaint.

b.    Where the defendant is without knowledge or information sufficient to form belief, a statement to that effect constitutes denial. 

c.    A failure to deny constitutes an admission (except for denial of amount in damages).

d.    The answer must also state any affirmative defenses the defendant may have, such as statute of limitations, Statute of Frauds, res judicata, etc.

e.    Denial - In some situations, denials can be evasive so the court will hold them insufficient, and could it as an admission.

                                          i.    Negative pregnant – a negation which implies an affirmation. i.e. “I didn’t steal money from you last Tuesday,” may   imply it could have happened another day.

                                         ii.    Making a contradictory statement rather than a categorical denial. i.e. alleged def was in Chicago on said date, and def answers that he was in NY on said date - this could be held bad as an argumentative denial.

f.     Two opportunities for defendants to respond:

                                          i.    Pre-answer motion - permits defendants to raise certain types of objections to the action at a very early stage of litigation. Responses include:

1.    Reasons why the court should not proceed with the action

2.    Assertions that the complaint, even if true, provides no basis for legal relief

3.    Denials

4.    Affirmative defenses

5.    Requests for clarification and more information

6.    All responses except requests for info may be included in the defendant's answer.  If def doesn’t make such a motion, or the motion is denied, they must file and additional pleading, called an answer.

                                         ii.    Answer - responds to the allegations of the complaint and asserts any additional information or affirmative claims that the defendant may have against the plaintiff. 

1.    Both the pre-answer and the answer serve as key strategic early moments of the lawsuit, as the parties define the contours of their disagreement and maneuver for early advantage.

g.    Affirmative Defenses – (Rule 8c)

                                                              i.      Layman v Southwestern Bell Telephone Co. - Bell lays cable on Layman's land. She thinks they've trespassed onto her land, causing the value of her property to depreciate.  Court finds for defendant Bell because they show they had an easement granted by the previous owner and that plaintiff had given permission for installation of cable across her land.  However, Bell's answer only made a general denial (they denied everything and demanded proof of everything).  The issue is whether the easement is to be considered an affirmative defense that Bell had to have put in answer, or else waive the right to use as evidence during trial.  Court says it is, under Rule 8(c), although doesn’t list easements specifically, it says, “any other matter constituting an avoidance or affirmative defense”. 

1.    Test is that if there are any facts that would let the defendant avoid any legal responsibility, the defendant must out them in the answer, as an affirmative defense.

2.    The pleadings are supposed to show each party the issues, and to put them on notice, w/o surprise, and Layman did not know, and was surprised.  For justice and efficiency. Layman should know what she has to prove (maybe she would settle instead), and court wants to efficiently sort out cases during pleadings.  Also, burden on def b/c they HAD to know of the easement b/c they sent employees to property. 

h.      Reply – In most cases the pleadings end with the answer. This is true whether there are specific or general denials. However, if the answer contains a counterclaim (which is labeled as a counterclaim), Rule 7(a) requires plaintiff to reply. Also,, court, at its discretion, can order a reply (but this is very rare). 

VIII.            Amendments

a.       There are 3 ways to amend:

1.    One way for the plaintiff

2.    One way for the defendant

3.    One way the judge can help you out

                                                            ii.      You may amend once "as a matter of course" before you get the answer. This is basically a plaintiff's rule. The plaintiff files a complaint, and you can amend it once before the answer comes back.  If there is no responsive pleading due (like an answer, because there's nothing that comes after it), you have 20 days to amend it.  Typically, you also have 20 days to answer the complaint, so it's kind of a mirrored rule. If you don’t qualify for these two windows, you must ask leave of the court, which will be given freely as justice requires. 

    IX.             

a.       Rule 15

                                                              i.      15(a): A pleading may be amended once before a responsive pleading is served, or if no responsive pleading is required, within 20 days of service of the pleading.  Thereafter, a pleading may be amended only by written consent of the adverse party or by leave of the court upon motion. Leave of the court is “freely given when justice so requires.”

                                                            ii.       15(b): Amendments During and After Trial – A pleading may be amended during or after trial or even after judgment  to conform to the evidence, reflect an issue actually tried by express or implied consent of the parties, or permit raising new issues at trial.  However, a party may not raise a claim or defense for which the opposing party had no opportunity to prepare and which would result in prejudice in maintaining his action or defense.

                                                          iii.      15(c): (1) Relation Back: Amendments relate back to the date that the original pleading was filed if the conduct, transaction or occurrence set forth in the amendment was set forth or attempted to be set forth in the original pleading. Amendments also relate back if relation back is permitted by that provides the statute of limitations applicable to the action. (2) Changing Party:  An Amendment changing the party or the naming of the party against whom a claim is asserted relates back if the amendment concerns the same conduct, transaction, or occurrence as the original pleading and if, within 120 days after filing the complaint (and such additional time as the court may order upon showing of good cause) the party to be brought in by amendment: (a) Has received such notice of the action that she will not be prejudiced in maintaining her defense on the merits; and (b) Knew or should have known that but for a mistake concerning the proper party’s identity, the action would have been brought against her.

                                                           iv.      15(d):  Supplemental pleadings relate to matters occurring after the date of the original pleading. The permission of the court, upon motion, is required. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or a defense.

b.      Prejudice – Rule 15 suggests a tension btwn 2 goals: easy amendment, which allows the pleadings to reflect the parties’ changed view of the case as it develops; and the notion of “prejudice,” which reflects the idea that at some point the other side has to make decisions about how to present its case, decisions that become difficult if the story it has to meet continually shifts.

                                                              i.      Beeck v. Aquaslide ‘N’ Dive Corp (1977) – Aquaslide sued on products liability claim. Aquaslide insurance investigates, and says, yes it was manufactured by defendant, so Aquaslide admits this in answer and in discovery. President of Aquaslide then goes to look at it, and realizes its not Aquaslide, wants to amend their answer, but 20day window has run out.  Court gives leave to amend, according to Rule 15. Court says leave to amend will be freely given in the absence of any reason that leave shouldn’t be granted; courts mustn't allow delay, bad faith, or prejudice. No bad faith, Aquaslide reasonably relied on info from insurance rep.

1.    The plaintiffs didn’t really do anything wrong, but there’s a good reason to grant leave to amend.  The plaintiffs say that there is prejudice though, because the statute of limitations has run out - the plaintiffs cannot now sue the true manufacturer for personal injury.  But the court says the plaintiff might have causes of action that can get around the statute of limitations, so the prejudice isn’t as great as the plaintiff says.   

2.    Plaintiffs later sued Aquaslide on fraud b/c they have had other lawsuits based on copied Aquaslide’s designs, and president should have known this was possible, so according to Rule 11, he failed to make a reasonable inquiry. 

c.       Statute of limitations and relating back (Rule 15(c))

                                                              i.      Absent some absolute cutoff, you can always beg the court to amend.  But if the statute of limitations has run, the cause of action is cut off. Rule 15c talks to use about what we can do with regard to amending our petitions and having those amendments relate back to when we initially filed the complaint.  This is a tool to get out around limitations.  If we can get our amendment to relate back, then we've avoided the statute of limitations problem.  It will relate back if it relates to the same "conduct, transaction or occurrence."  This was an unclear, problematic amendment when it was adopted, but now there is more clarity about when it applies.

                                                            ii.      Moore v Baker (1993) – Moore sues Baker on medical malpractice, lack of informed consent. Statute of limitations runs out, and Moore wants to amend complaint to include simple negligence. Issue is whether Rule (c) relating back will allow her.

1.    Court says Moore's claim does not arise out of the same conduct, transaction, or occurrence as the claims in the original complaint – there was no negligence mentioned in the original complaint. Therefore, the amended complaint does not relate back to the original complaint, and the proposed new claims are barred by the statute of limitations. The doctor wasn’t on notice that he had a negligence claim against him.  The concept behind pleading is that we put you on notice.  But all the doctor knew about was the claim involving informed consent.

                                                          iii.      Bonerb v Richard J Caron Foundation (1994) – Bonerb sues on tort claim that def negligently managed the facility. Plaintiff then wants to amend with a new allegation of counseling malpractice, but statute of limitations has run out.  Def argues new claim doesn’t relate back to original claim, but court says it relates back to same facts, so allows the amendment.

                                                           iv.      Difference btwn the two:

1.    One reason the two cases are different is the surprise element.  Courts are more willing to let you relate amendments back if it’s not going to be to the detriment of the other side.  In first case, since def filed for summary judgment, prob discovery already over, so the amendment would be a surprise and unfair.

2.    In the Bonerb case, we start with the general claim of negligence and then try to slice out a particular kind of claim.  Thus, courts may favor amendments that move from the general to the specific. 

3.    Two courts look at the same Federal Rule with the same language, but come out differently.  So the Rule doesn’t have complete clarity on its face.