Académique Documents
Professionnel Documents
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Retention
Pre-filing
Pleadings
Notice Pleading
What you need to show:
Basis of jurisdiction
Claim for relief
What kind of relief you want
Rule 8(a)(2) short and plain statement of the claim
showing that the pleader is entitled to relief.
Can use legal conclusions in the complaint.
Only chance to throw out a case (demurrer) is 12(b)(6)
MORE CASES GET THROUGH THAN UNDER FACT
PLEADING. Some may be meritless, others may have
merit and would have been lost under fact pleading.
Distinction: Code Pleading = complaint trial
Notice pleading = complaint discovery
summary judgment trial
Result was that much less had to be in the complaint
Rules for Plaintiffs Pleading
8(a)(2) describes it. What you need:
Basis for jurisdiction
Claim on which relief can be granted
Demand for relief.
Rule 9
9b and its two sentences:
When fraud or mistake is alleged, must be more specific
Easy to allege fraud or mistake as a nuisance suit
Lots of acts can look innocent in fraud they might also
BE innocent
State of mind, scienter, can be alleged generally, but
must have facts to support the inference of malice
When Rule 9 might not work can try 8f for substantial
justice promotion, or 12e.
Recognizing the possibility for 12(b)(6)
Defendants Pleading
What can the defendant do when he gets the plaintiffs
pleading?
File a 12(e) motion for clarification plaintiff will
amend, then will have to answer.
File a 12(b) motion to dismiss if denied, then must
answer.
Settle the claim
Answer the claim Rule 8(b), 8(c)
Default judgment Rule 8(d), Rule 55
Answering
No answer default judgment Rule 8(d)
Usually, court is not watching. Will wait for the plaintiff
to ask for a default, then enter the notice (55a)
Judgment of default (55b)
55b1 clerk enters it. ONLY if defendant has not
appeared at all, and if there is no question about the
amount in dispute.
55b2 judge enters it. If the party has appeared at any
time, they get 3-day notice of the default process. A
hearing may be necessary.
Setting aside a default (55c)
For good cause shown. If the judgment has already been
made and entered, it has to be in accordance with 60b,
which is much higher stakes.
Often depends on whether or not the plaintiff will suffer
prejudice.
Denying 8(b)
When a defendant admits something, it is taken by the
court as true regardless of whether it IS true.
Except as above, you dont have to know its a denial to
deny. You can simply not know the answer.
If plaintiff alleges a whole lot in one sentence, should
deny each one separately. Can avoid trouble later.
Affirmative Defense 8(c)
Also known as confession and avoidance from above
Defendant has the burden of proof in affirmative
defenses
12c plaintiff can file for judgment on the pleadings if
the defendant does not raise an affirmative defense.
Even if the defendant does file an affirmative defense,
the plaintiff can still file under 12c, and hope for a 12f
use by the judge that the defense was insufficient
If defendant does not raise an affirmative defense in the
answer, he can try to file later under 15a, when justice
so requires.
Qualified immunity is an affirmative defense
Motions with Respect to the Pleadings
Pre-Answer Motions - Rule 12
Rule 12e asks for clarification of the complaint
Rule 12f stops redundant and insufficient claims, gives
leave to amend
7 motions in 12b for possible dismissal
12g limits using any not yet brought up; 12h limits when
they can be brought up
Least favored defenses waived if not raised in the first
response; dont get at the merits of the case, but may
require initial determination
Lack of jurisdiction (12b2) court does not have
jurisdiction over the person
Improper venue (12b3) a court has power over a
person, but it doesnt make any sense to have the trial in
that court (like when ALL the witnesses are in another
state for a car accident)
Insufficiency of process (12b4)
Insufficiency of service (12b5) given to a child, etc.
Favored Defense can be raised in any pleading, by
motion, or at trial
Failure to State a claim 12b6/summary judgment/12c
Failure to Join an Indispensable Party (12b7)
Most Favored Defense can be raised at any time
No jurisdiction over the subject (12b1)
Rule 11
Counterclaims
Compulsory can be looked at with the same set of
evidence. The counterclaim must be filed along with the
original suit, or it will not be permitted to be filed again.
Use-it-or-lose-it. Efficiency issue.
Permissive if a counterclaim is not compulsory, it is
considered permissive; it must then have independent
jurisdictional support in order to stay in the same
jurisdiction.
Look for the same set of evidence, and look for logical
link between the two claims to determine compulsory v.
permissive.
When in doubt, try it.
Voluntary Dismissal
If plaintiff realizes there is no case, or not enough case
right now
Can only dismiss and refile once 41a1
Can only dismiss before answer or motion for summary
judgment, or if both parties agree to the dismissal (41a1i,
41a1ii)
Sometimes, judges discretion can say the case is too far
along doesnt jive with 41a1.
Prejudice
Can dismiss without prejudice if the defendant has
suffered no detriment meaning can file again later.
Can sometimes dismiss without prejudice, but judge will
make plaintiff pay defendants attorneys fees.
Can always dismiss with prejudice, losing right to file
again later
Amendments
Permission to Amend 15a
Each pasty has right to amend a pleading ONCE after
that only leave of court
56a & 56b both sides can file for summary judgment,
with or without affidavits
56c if the judge doesnt find an issue of fact, then he
can grant summary judgment.- defines movant
56e there need to be response affidavits setting forth
specific facts that there is a genuine issue for trial
cannot rest merely on the allegations in the pleadings
56f if one or the other party isnt ready, cant produce
affidavits, the judge can grant them time to do so before
he hears the motion. Generally, this is bad form on the
part of counsel; they should wait until discovery is
finished before motioning.
Affadavits are signed written statements supporting facts
Summary judgment in sum:
Assess the facts:
Judge must view in light most favorable to the
nonmovant
Judge does not go into credibility
Looks only at either admissible facts or inadmissible facts
which are predicted to become trial testimony.
Inference from the facts
Judge must give benefit of all reasonable inference to
nonmovant
Motive can make inferences more plausible, especially
economic motive
Apply the law
Judge decides legal qualifications as would at any point
in proceedings
No need to worry about bias or partys rights
Motions in Limine
Request by one party to meet privately with the judge
about a matter
Often used to discuss the admissibility of an argument or
evidence so as not to get shot down by objection during
the trial.
Final Pretrial Order
Trial & Post-Trial Motions
Directed Verdict (1st part of Judgment as a Matter of
Law)
At close of Ps case if D makes motion; at close of all
evidence if P makes motion
Operative standard is exactly the same as summary
judgment
Why directed verdict and not summary judgment?
Because judge may not want to do all the work for
summary judgment
Because sometimes the evidence doesnt lead anywhere
in testimony, bu that wasnt clear from summary
judgment
Directed verdict and right to a jury trial
At common law, could have:
A Demurrer, which was high stakes dismissed if there
was no evidence, but you lose if there was evidence
New trial granted even if there was some evidence
supporting each side not a judgment
Galloway court finds that new principles only need to
jive with common law; basically, directed verdict is
close enough
That court held that the demurrer is the basis for the
directed verdict.
Judgment n.o.v. 2nd part of judgment as a matter of
law.
Can only be granted if a motion for a directed verdict was
filed earlier.
Why would the judge ever use this?
Political reasons hope the jury finds correctly
Counter: once it goes to the jury, the judge has
legitimized the question of fact. Doesnt it then look
politically worse to reverse it n.o.v.
Much better than a directed verdict on appeal appellate
court then has all the evidence
Probabilistic evidence
What is a scintilla of evidence?
New Trial
Grounds for a new trial
Judicial or legal error like inappropriate exclusion of
evidence, witnesses, or bad instruction
Judge grants an additur or remittur for damages verdict
was too extreme
Newly discovered evidence (if brought within 10 days)
(59b)
Intersection between JAML and New Trial:
Why would the judge pick one or the other?
Matter of gradation
Judge is somewhere in the middle ground, will probably
follow jurys verdict
Judge feels strongly one way and jury rules the other
way, will probably grant new trial
Judge feels its a no-brainer, and jury rules the other way,
will probably grant judgment n.o.v.
After a new trial is granted, the parties are more likely to
settle
Rule 50 governs the use of new trial motions in relation
to judgments as a matter of law:
If judgment as a matter of law is granted, judge also
rules on new trial (50c1)
Defendant may move for new trial within 10 days if
judgment n.ov. for plaintiff (50c2)
If judgment as a matter of law is denied, defendant may
ask for a new trial on appeal (50d)
Court of appeals may decide this on its own (Neely, case
precedent)
Voiding a judgment Rule 60
1 year limit
Mistake, inadvertence, surprise, excusable neglect
Newly discovered evidence which could not reasonably
have been found in time to slide in under Rule 59b
Fraud or misrepresentation of the other party
Any time
No jurisdiction
Super stringent catch-all, especially if ruling is still in
effect but way out of date (like segregation holdings)
Court enforces strictly!