Hi there, the purpose of this article is to literally record everything I can remember about Civil Procedure II in preparation for the final. As such, the material here may be slightly disorganized or may contain slightly inaccurate information (as most of this is going to be coming from memory.

As far as organization for this article goes, I will focus on a category, followed by associated rules, followed by associated cases.

Overview

  • Pleadings
  • Discovery
  • Resolution without Trial
  • Trial
  • Complex Litigation
  • Former Adjudication

Pleadings

Rule 4(m)

A plaintiff has 90 days after filing to complaint to serve the summons on a defendant. For our purposes, this applies when we get to rule 15(c)(1)(C) when amending pleadings to correct for parties.

Cases

Krupski v. Costa Crociere – Suing the Cruise Line

Rule 8(a)

The pleadings must contain three parts: 1) a statement of jurisdictional grounds, 2) a short and plain plausible statement of the claim, and 3) a prayer for a remedy.

To properly state a claim, the party needs to provide sufficient facts to make plausible (not conceivable) allegations (must not just be a conclusory statement). This plausible standard only applies to the facts. However, the claimant must still provide enough information to state a legal cause of action. Without proper factual allegation or a legal cause of action, the claim will be dismissed. See Rule 12(b)(6).

Ultimately, there are three main ways a case will fail:

  1. Improper legal authority
  2. Inconceivable claims
  3. Implausible claims
Cases

Conley – Old standard of conceivable

Twombly – New standard of plausible in complex cases

Iqbal – Plausible applies in all cases – Assume the pleaded facts are true – Needs a well-pleaded fact

Johnson v. City of Shelby – Legal authority claims

Leatherman v. Tarrant County Narcotics – No higher standard for suing the government

Rule 8(b)

The answer contains three parts:

  1. Responses to allegations
  2. Affirmative defenses
  3. Counterclaims

Rule 8(c)

This rule lists a few of the affirmative defenses available to parties.

Cases

Jones v. Bock – Plaintiff must exhaust all remedies before going to the court, but the defendant has the obligation of making the affirmative defense in the answer.

Ingraham

Rule 9

The only claims that merit higher pleading standards are claims of fraud or mistake. These claims need to be pled with “particularity” which means that the claim needs to state the time, manner, and place where the fraud or mistake took place. The purpose is to put the defendant on notice of which actions they will need to defend against.

Cases

Stratford – fraud, need to state with particularity

Leatherman v. Tarrant County Narcotics – higher standard only applies to claims of fraud or mistake, not to suing a generally protected entity.

Rule 11

Sanctions may be appropriate for failing to conduct a pre-filing investigation to ensure the proper claims are made or for defending frivolous claims. This rule protects written communication filed with the court. Verbal applies only if the parties learn of the wrong in the written and defend it anyways.

Safe Harbor Procedure:

  1. Provide notice to offending party
  2. Wait for 21 days for repair
  3. Motion for Rule 11 Sanction if no repair is made
Cases

Hays v. Sony Corp – Pre-filing investigation

Walker v. Norwest – Defending frivolous claims

Christian v. Mattel – Written communication, not actions.

Rule 12(b)(1-6)

Rule 12(b)(2-5) may be waived. As such, these motions to dismiss must be brought together. Rule 12(b)(1) and (6) cannot be waived, but if they are not brought with 12(b)(2-5), they must wait until the answer to bring them. In other words, you are not allowed to string along these rules.

Cases

Hunter v. Serv-Tech – No stringing

Rule 12(e)

Motion for a more definite statement. This rule is rarely granted because the pleading does not need to be pretty, only intelligible.

Rule 12(f)

Motion to strike words from a claim. This rule is again rarely granted.

Case

Rule 12(e-f) come from the same case: Matos v. Nextron

Rule 15(a)

Rule 15 outlines the procedure for amending claims or parties. 15(a) says that a no leave is required if a party amends within 21 days of filing the original pleading. Otherwise, leave is to freely granted as justice requires. Factors the court will consider to determine if justice requires include:

  1. Reason for the amendment
  2. Why it wasn’t included earlier
  3. Phase of litigation
  4. Bad faith, prejudice, or undue delay
Case

Beeck v. Aquaslide – good example

Rule 15(c)

This rule allows the parties to relate back, if a new claim:

  1. Meets the requirements of rule 15(a)
  2. Has the common nucleus of operative facts
Cases

Bonerb v. Richard J. Caron Foundation – Did relate back

Moore v. Baker – Did not relate back

Rule 15(c)(1)(C)

Amending the pleading to correct a mistake concerning the parties has two elements:

  1. The amended party knows or should have known that they would have been subject to the litigation if there was no mistake.
  2. The proper party is provided notice within 90 days according to Rule 4(m)
Case

Krupski v. Costa Crociere

Discovery

Rule 16

This rule establishing a hearing to set forth a schedule for discovery (what is the end date)

Rule 26(a)

Once in discovery, parties are required to disclose certain information. Automatic disclosures include:

  1. Good witnesses
  2. Evidence related to its claim or defense
  3. Damages
  4. Insurance

Rule 26(b)(1)

Sets forth the scope of discovery generally. Discovery extends to non privileged materials that are relevant to claims and defenses and are proportional.

Proportional factors include:

  1. The importance of the request for the issue
  2. Burden v. Benefit of discovered materials
  3. Resources available to burdened party
  4. Amount in controversy
  5. Parties access to those documents
Cases

Rengifo v. Everos – Relevance

Oxbow Coal v. Union Pacific Rail – Proportionality

Rule 26(b)(3)

Work Product. Any work conducted by an attorney or agent in preparation for trial is generally protected by this rule. However, statements concerning this material may be discoverable if 1) the material is not available to both parties, 2) the material is otherwise discoverable, and 3) there is a substantial need for the material. The purpose of this rule is to protect against the free rider problem.

Case

Hickman v. Taylor – Tug boat accident

Rule 26(b)(4)

Expert information. Generally, there are two kinds of witnesses: Lay witnesses and expert witnesses. Lay witness have knowledge specific to the facts of the case. An expert witness has external knowledge that is higher than an average person in a category, which may help interpret the facts and provide an opinion about the case. There are several kinds of experts

  1. Testifying experts – generally discoverable
  2. Non-testifying experts – generally not discoverable
  3. Consulted experts – generally not discoverable
  4. Fact experts – experts with general knowledge of the facts and qualify as an expert. Generally discoverable
  5. Information expert – can utilize, but make sure they are justly compensated.

For non-testifying experts, their material is discoverable if there are exception circumstances which call for their use. Typically, this occurs if the material is no longer available or if circumstances have changed to prevent the other party from gathering information (time).

Cases

Chiquita Intern Ltd. v. N/V Bolero Reefer – Had multiple experts on the boat, information was readily available to everyone

Thompson v. Haskell – Exceptional circumstance – difference in time.

Rule 26(b)(5)

Privileged information:

  1. Attorney-Client
  2. Clergy-Penitent
  3. Psychotherapist-Patient

According to the Restatement Third of Law Governing Lawyers § 38, the elements to show attorney-client privilege include:

  1. Communication
  2. Between privileged parties
  3. Held in Confidence (only between the parties and legal team with NDAs)
  4. That relate to legal advice or protection of the client.

This privilege may be discoverable if any of the elements are violated.

Rule 26(c)

Protective Order (Shield). Like Rule 37(a), a motion for protective order follows the following procedure:

  1. Meet and confer
  2. Good faith certificate that the parties are unable to resolve the issue
  3. Motion for protective order.
Case

Liguria Foods v. Griffith Labs

Rule 28

Depositions – Can take up to 10 of them which are 7 hours each. A deposition is taken by the attorney asking questions while the other party is defending the deposition.

Rule 33

Interrogatories – Can ask up to 25 questions without leave of the court. Standard first question is to ask for all witnesses.

Rule 34

Documents and Electronically Stored Information . See Zubulake

Rule 37(a)

Motion to Compel (Sword). Like Rule 26(c), a motion to compel follows the following procedure:

  1. Meet and confer
  2. Good faith certificate that the parties are unable to resolve the issue
  3. Motion to compel.
Case

Liguria Foods v. Griffith Labs

Rule 37(b)

Sanctions may be appropriate for failure to comply with requests or court orders. See Liguria Foods v. Griffith Labs and Zubulake

Rule 37(e)

Penalty for failure to preserve ESI.

When a party reasonably anticipates litigation to occur (e.g. right after firing someone), there is a litigation hold to maintain any documents that may be related to the situation. This occurs before a formal litigation hold is issued. If a party ignores the hold and engages in spoliation (destruction) of materials, they may have an adverse inference against them at trial.

  1. Litigation Hold
  2. Ignored
  3. Motion for adverse inference instruction, which is granted if:
    1. Material is relevant to the claim or defense
    2. Party was responsible to maintain those documents
    3. With a culpable state of mind, the party destroyed those documents.
  4. Jury outcome.
Case

Zubulake – Spoliation of Electronically Stored Information

Resolution Without Trial

Three mains to resolve:

  1. Settlement – Consider arbitration (binding) and mediation (nonbinding)
  2. Dismissal
    1. Rule 12 – Defendant
    2. Rule 41 – Plaintiff
  3. Judgment
    1. Rule 50 – JMOL and JNOV – focus on during trial
    2. Rule 55 – Default judgment
    3. and Rule 56 Summary Judgment
    4. Also worth noting Rule 68 Offer of Judgment

Rule 55

When a party fails to respond to a pleading within the proscribed time, they are in default. A judgment may be rendered against those parties.

  1. Complaint files and service made.
  2. Motion
  3. Clerk entry of judgment (results in party accepting all allegations in the pleading)
  4. Judgment hearing
    1. Proper service?
    2. Proper pleading?
    3. Possible remedies?
  5. If appropriate – judgment rendered

Rule 60 – Relief from judgment may be granted if there was a mistake, excusable negligence, improper service, judgment has been satisfied, etc.

Case

Virgin Records v. Lacey

Rule 56

Summary judgment. Rule 56(a) gives the standard: “no genuine dispute as to a material fact…” Must be brought within 30 days of the end of discovery under Rule 56(b).

Cases

Celotex – Burden shifting approach – lack of evidence must be shown by moving party. Defending party must show that the evidence exists (without being required to depose witnesses).

Houchens v. American Home Insurance – Accidental Death or not

Bias v. Advantage – Did he do drugs?

Tolan v. Cotton – No higher standard even when parties have a qualified immunity

Rule 68

Offer of Judgment – party offers to accept judgment for a price. If the other party refuses the judgment offer and wins less than that offer, they will be subject to the offeror’s court expenses that start adding between the offer and the judgment.

Trial

28 USC §§ 1861, 62, 66, and 70/Rule 47

Jury selection is designed to remove bias

Rule 50(a)

Judgment as a matter of law (JMOL). Same standard as summary judgment. Must be made after the case in Chief of the adverse party.

Rule 50(b)

Renewed motion for judgment notwithstanding the verdict (JNOV). Must bring a Rule 50(a) before you can make a Rule 50(b) and after a verdict is made.

Cases

Pennsylvania Railroad Co. v. Chamberlain – Insufficient witness

Lane v. Hardees – Slip and Fall – Circumstantial Evidence warranted denial

Reid v. San Pedro – Cow – Circumstantial evidence warranted grant

Rule 59

Motion for new trial. Generally if the weight is against the evidence, the judge can grant a motion for new trial. However, most of the time, the court will defer to the jury and offer the winning party a remitter.

Case

Trevedi v. Cooper

Rule 65(a) and (b)

Generally, you can only appeal if there is a judgment. However, an interlocutory appeal (appeal of a court ruling before final judgment) may be granted for a denial of a preliminary injunction (Rule 65(a)) or restraining order (Rule 65(b)) in the cases of emergency.

Complex Litigation

Rule 13

Claims and Counterclaims.

13(a) are compulsory counterclaims. This means that if you are sued and you have a claim related to the same situation, you must raise that claim or risk losing the opportunity to argue it.

13(b) are permissive counterclaims. If the claims are unrelated, you may bring them in the same litigation. However, those claims will likely be separated at trial to be heard by different juries.

Case

King v. Blanton – Car accident

Rule 14

Impleader. If a defendant is sued, they are able to implead a third party. Thus, the litigation looks somewhat like this. Plaintiff v. Third-Party plaintiff (original defendant) v. third-party defendant.

This rule only applies for contribution and indemnity claims. That is, the defendant is somewhat liable to the original plaintiff, but through the defendant (derivative liability). Therefore, the third-party defendant is seeking to bring them into the litigation. Other things to note is that there must be subject matter jurisdiction still present.

A defendant may use the plaintiff’s anchor claim to bring in an impleader. However, the plaintiff is unable to use their anchor claim to bring in an impleader is subject matter jurisdiction does not exist.

Cases

Erkins v. Case Power

Owen Equipment and Erection Co. v. Kroger

Rule 18

Joining of claims. Under rule 18, a party may bring any claims against the same party in the same litigation. These can be related or unrelated claims. The unrelated claims are likely to be separated at trial.

Rule 19

Dismissal for inability to bring a required party. There is a three part analysis for rule 19 to apply.

  1. The party in question must be a necessary party.
    • How much the current party will bear responsibility beyond their fault.
  2. It is not feasible to bring the necessary party.
    • Subject matter or personal jurisdiction is lacking
  3. Whether dismissal is appropriate if lack of feasibility.
    • Appropriate remedies?
    • Prejudice? Ways to lessen?
    • Whether there should be a judgment anyways?
Cases

Torrington Co. v. Yost

Temple v. Synthes Corp. – Should have just used rule 14 if possible.

Rule 20

Joining of parties. If multiple plaintiffs want to join in as co-plaintiffs, they are able to do so if:

  1. All the claims are related to the common nucleus of operative facts. “Same transaction, occurrence, or series of transactions or occurrences.”

The result: all claims are heard by the same jury.

Rule 21

Misjoinder. If the court feels like a party has been inappropriately added or brought, they can drop that party.

The result: all claims are heard by separate juries.

Case for Rule 21-21:

Hohlbein v. Heritage Mutual Insurance Co.

Intervention

A party may join the litigation on their own to protect their interests against settlement.

28 USC 1335 – Interpleader

If the defendant does not know all of the potential claimants, they can go and settle with the court for all the claimants to come at once. This is to avoid being liable multiple times.

Former Adjudication

Both claim and issue preclusion are affirmative defenses and thus fall under Rule 8(c).

Claim Preclusion

Also known as res judicata. Broadly preventing claims from being brought twice. The defendant must show:

  1. The same claim (common nucleus of operative fact, even if different theories).
  2. Final judgment
  3. Same parties

Ultimately, prevents the plaintiff from getting two chances at winning.

Case:

River Park Inc. v. Highland Park – Golf Course denial

Issue Preclusion

Prevents a party from bringing a single issue. Multiple parties may use issue preclusion, either offensively or defensively. See Blonder-Tongue v. University of Illinois for defensive – “You already lost this issue against another party, you shouldn’t be able to argue it again against me.” For offensive, see Parklane v. Shore – “You just lost this issue, so I don’t want to argue it again.” Typically offensive is limited to plaintiffs who were unable to join other litigation, or if application would be unfair to the defendant.”

However, if there are inconsistent outcomes between cases related to the issue, then a new party is unable to claim issue preclusion (e.g. party 1 won, party 2 lost, party 3 is unable to claim preclusion). See State Farm v. Century Home Components.

Disclaimer

The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, 1L Spring Outlines, Civil Procedure II

Will Laursen

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