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Civil Procedure II - Spring 2012

Faulkner University, Thomas Goode Jones School of Law, Prof. Vega

Matt Vega

on 9 January 2013

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Transcript of Civil Procedure II - Spring 2012

Civil Procedure II Spring 2012
Professor Matt A. Vega
Faulkner University Law School Ashcroft v. Iqbal Joinder Counterclaims Crossclaims - Rule 13(g) Impleader Under Rule 14 Required Joinder under Rule 19 Intervention under Rule 24 Rules 18 and 20 Interpleader (Rule 22) Hohlbein v. Heritage Mutual Ins. Co. "Mathematics is about calculations" "Mathematics is a logical system which helps explain the things around us" "Mathematics is like a universal language which allows people to communicate and understand the world" Twombly/Iqbal Standard Discovery assymetry What volume of evidence does Iqbal probably have that he might have to produce in response to the defendants' discovery requests as compared to the volume the defendants, in their official capacity, would have?

How burdensome would it be for Iqbal to sit for a deposition compared to the burden on Ashcroft and other officials with whom they worked? Apply to Dioguardi and Doe v. Smith Peona, a Hispanic, was fired from her job along with 10 others. Sue sues her employer for race discrimination under Title VII alleging "I am Hispanic and five of the ten persons fired were too." She also alleges that "only 10 percent of the employees of the 500-person company were Hispanic at the time of the firings" and that "my firing was based on my race." The employer moves to dismiss for failure to state a claim, arguing it was just downsizing its secretarial staff, and that it was coincidental that half of the secretaries were Hispanic.

How should the court rule, applying the plausbility standard? I. Basic Pleadings (Chap. 13)
Introduction, History and "Notice Pleading"
Heightened Pleading
Plausibility Standard
II. Responding to the Complaint (or Not?) (Chap. 14)
Ignoring the Complaint
Moving to Dismiss the Complaint: Motion Practice
Answering the Complaint, Raising Affirmative Defenses and Other Pleading
III. Care and Candor in Pleading (Chap. 16)
Veracity in Pleadings and Rule 11
Introduction, Amending without leave or before trial, and amending claims or parties after the limitations period has run
IV. Joinder of Claims & Parties (Chap. 17)
Claim and Party Joinder by Plaintiffs
Counterclaims, Crossclaims & Impleading
V. Complex Joinder (Chap. 18) and Class Actions (Chap. 19)
Persons Who Must be Joined (Required Parties)
Persons Who Want to Join (Intervenors and Interpleader)
Class Actions Alleges that Ashcroft and Mueller condoned and implemented a policy of holding persons on basis of Arab/Muslim identity until cleared of terrorist connections. Court of Apeals affirmed denial of 12(b)(6).

How did it distinguish Twombly?

"Context-specific" to contexts in which complexity and availability of alternative explanations required more facts to make liability plausible. Three pronged test:

1. Identify elements.

2. Accept as true only nonconclusory allegations respecting elements -- "well-pleaded factual allegations"

3. On those, decide whether complaint states a plausible claim. Application:
1. Elements: invidious purpose.

2. Strip conclusory allegations of same.
These are substantially "formulaic recitation of elements"
Without more they do not "show entitlement to relief"
But compare Form 11???

3. On what remains is invidious purpose plausible? What remains is description of actual program of hold and clear.
But "obvious alternative explanation" is that they are looking for persons like al Qaeda--Arab Muslims.
The "obvious alternative explanation" for the actual hold is to keep them in lockup until they can be safely released, and not an intent to discirminate. Or so the majority reasons. Implications:

Was Twombly antitrust only?
Is a more relaxed Rule 8 standard offset by controlled discovery? Responding to a Complaint--Or not? Virgin Records v. Lacy Answer the complaint Ignore it The Default File a motion to dismiss Entry of Default Judgment The Entry of Default Rule 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 grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;

• arbitration and award;

• assumption of risk;

• contributory negligence;

• duress;

• estoppel;

• failure of consideration;

• fraud;

• illegality;

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of frauds;

• statute of limitations; and

• waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

(e) Construing Pleadings. Pleadings must be construed so as to do justice. Rule 55. Default; 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.

(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:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.

(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 default judgment under Rule 60(b).

(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. Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; 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:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) 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.

(B) 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.

(C) 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.


(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

(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. When the federal claim has been dismissed. Heightened Pleading What if Dioguardi had alleged fraud? Rule 9. Pleading Special Matters

http://www.law.cornell.edu/rules/frcp/rule_9 Rule 9 - Pl. must allege more specifically who, what, when, where, how and why. NOTE: For a K-12 version, look at the Learning Process Questionnaire (LPQ) Common Law Pleading
Equity Pleading
Code Pleading Basic Pleadings (Chap. 13) Rule 8. General Rules of Pleading The Genius of the 1934 Rules Enabling Act & 1938 FRCP One form of action (Rule 2) and flexible construction. Rule 1.
Only 3 pleadings: complaint, answer, and, if allowed or required, reply.
Simplified pleading of "claims," to give notice of why you were being sued. Rule 8.
The complaint doesn't supply evidence, but shifts this burden to generous discovery.
Though frivolous caims can still be screened by Rule 12(b)(6), relaxed pleading requirements let more weak cases through the gatehouse, but shift part of the screening burden to summary judgment, usually later in the lawsuit. Rule 56. (a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Historical Origins of Pleadings "Notice Pleading" Examples What about a Rule 12 motion? Is it a pleading? See Rule 7(b). Digouradi v. Durning Key Points: Must show would be "entitled to relief,"
Under any applicable law,
Assuming the factual allegations of the complaint are true.
Arguing "in the alternative" is permitted. 550 U.S. 544 1950 The year Mullane was decided “we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”

Id. at 570. . . . that stating such a claim requires a complaint with enough factual matter(taken as true) to suggest that an [anti-competitive] agreement was made.Asking for plausible grounds to infer an agreement does not impose a probabilityrequirement at the pleading stage; it simply calls for enough fact toraise a reasonable expectation that discovery will reveal evidence of illegalagreement . . . .The need at the pleading stage for allegations plausibly suggesting (notmerely consistent with) agreement refl ects the threshold requirement ofRule 8(a)(2) that the “plain statement” possess enough heft to “sho[w] thatthe pleader is entitled to relief.” A statement of parallel conduct, even conductconsciously undertaken, needs some setting suggesting the agreementnecessary to make out a § 1 claim; without that further circumstance pointingtoward a meeting of the minds, an account of a defendant’s commercialefforts stays in neutral territory. An allegation of parallel conduct is thusmuch like a naked assertion of conspiracy in a [Sherman Act] complaint: itgets the complaint close to stating a claim, but without some further factualenhancement it stops short of the line between possibility and plausibility of“entitle[ment] to relief.” Bell Atlantic Corp. v. Twombly "[A] party must state with particularity the circumstances constituting fraud or mistake" PSLRA further raises the heightened pleading standard of Rule 9(b) in securities fraud litigation. But some courts have held Rule 8 imposes an independent limit on the length of a complaint ("short and plain"). Doe v. Smith "Plaintiffs need not plead facts; they need not plead law; they plead claims for relief" Based on Glannon's Coursebook Motion to Dismiss Rule 12 Motion Practice Care and Candor in Pleading Rule 11 Matos v. Nextran Affirmative Defenses Running the Rule 12(b) Checklist Answering the Complaint State Farm Mut. Auto. Ins. Co. v. Riley FRCP 15 Amended Pleadings Beeck v. Aquaslide
Moore v. Baker
Krupski v. Costa Crociere Hunter v. Serv-Tech VI. Discovery (Chap. 21), Discovery Tools (Chap. 22) and Discovery Control and Abuse (Chap. 23)
Scope of Discovery
Mandatory Discovery
Discovery Control and Abuse
VII. Dispositions Without Trial (Chap. 27), Judgement as a Matter of Law (Chap. 29), Controlling the Jury (Chap. 30), New Trial and Relief from Judgment (Chap. 31) & Appeals (Chap. 32)
Voluntary and Involuntary Dismissals
Summary Judgment
Second Guessing the Jury: Directed Verdicts/JNOV
New Trials, Motions to Set Aside Judgment
VIII. Preclusion (Chaps. 33 and 34)
Claim Preclusion (Res Judicata)
Issue Preclusion (Collateral Estoppel)
Non-Mutual Issue Preclusion Hays v. Sony Corp. of America Hunter v. Earthgrains Co. Bakery Reis Robotics USA, Inc . v. Concept Industries, Inc. Ingraham v. United States Reasonable Inquiry Alternative formulation for the domicile test- to establish a domicile of choice a person generally must be physically present at the location and intend to make that place his home for the time at least (Sadat v. Mertes) Leiendecker v. Asian Women United of Minnesota:
Who brought the original action?
How did a claim against Leiendecker come into the case?
Once the claim against Leiendecker was dismissed in the original action, then what happened?
What claims did she assert in this action?
Breach of contract
Tortious interference with contract
Violation of the Nonprofit Corporation Act
Violation of the Minnesota Whistleblower Act
How does the old board respond to the new case? Why?
How does Minnesota's compulsory counterclaim rule differ from FRCP 13(a)(1)?
Which of her claims were tort claims? (defamation and interference with contract--so those were not compulsory under the Minnesota rule and she hasn't waived them though she left them out of her counterclaims in the original suit)
But if her breach of contract and two statutory claims were not tort claim, then why weren't they barred? (they were not "ripe," i.e., had not yet accrued because she had not yet been fired when L was originally sued)
So which claims were barred by the compulsory counterclaim rule? (Ironically none) Erkins v. Case Power & Equipment Co.
What happened in Erkins?
Who did the widow sue?
What legal theory does she assert against Case? (strict liability)
Who did Case bring in as third-party defendants? (Fitzpatrick and ECRACOM)
Under what rule did Case claim it could bring them in? (Rule 14(a))
What is the standard under Rule 14(a) for impleading a third party? (the impleaded party "is or may be liable to the [defendant] for all or part...of the plaintiff's claim against the third-party defendant"
Why might the two contractors be liable to Case for all or part of its liability to Erkins? (NJ law allows contribution among joint tortfeasors; so the impleader standard is met) Syllabus The Conley Standard "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Inferential Reasoning If it rains, the street will get wet.
The streets are wet.
Therefore, it has likely been raining. NOTICE DISMIssAL IssUE-NARROWING STATING THE FACTS Pleading is an "art" rather than rule-based What must you do before you can draft a complaint? Interview client - to get the facts
Legal research -- to search for legal theories under which these facts woiuld create liability Fallacies:
1. Affirming the consequent.
2. Denying the antecedent.
3. Appealing to ignorance.
4. Hasty generalizations. What is fair notice of the claim? Why do we care? Leatherman v. Tarrant Co. Narcotics Elements of fraud:
Victim suffers harm Elements of 10b/10b5:
Material misrepresentation or omission by defendant.
In connection with purchase or sale of a security
Economic loss
Loss causation Halliburton (2011) - S. Ct. held securities fraud plaintiffs need not prove loss causation in order to obtain class certification. Morrison (2010) - S. Ct. barred U.S. courts from hearing securities fraud cases against foreign companies not listed on a U.S. exchange (applying the presumption against extraterritoriality). Janus Corp (2011) - S. Ct. held pl. could sue fund but not the fund's investment adviser for misstatements. Matrixx (2011) - S. Ct. held plaintiff doesn't have to show harm was statistically significant. Instead the Court upheld the case by case analysis established for materiality in Basic v. Levinson. Tellabs (2007) - S. Ct held that to qualify as "strong" an inference of scienter "must be more than merely plausible or reasonable -- it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent." The Court specifically held that in considering whether an inference is "strong," a court must consider competing inferences, something which the Seventh Circuit had expressly declined to do. The inquiry, the Court said, is "inherently comparative." The inference "need not be irrefutable," but "it must be more than merely 'reasonable' or 'permissible' -- it must be cogent and compelling, thus strong in light of other explanations." A complaint should survive a motion to dismiss only if "a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inferences one would draw from the facts alleged." http://www.law.cornell.edu/rules/frcp/rule_9 Issue: Whether the court had the authority to unilaterally impose a heightened pleading requirement in a sec. 1983 civil rights case? A canon of statutory construction: expressio unius est exclusion alterius
(the express mention of one thing excludes all others) 3 Ways of Interpreting Silence:
Silence means the action is permitted.
Silence means the action is prohibited.
Silence means there is no way of determining whether the action is permitted or prohibited. Gen. 6:14 - "Make yourself an ark of gopher wood. Make rooms in the ark, and cover it inside and out with pitch." (ESV) Mt. 26:30 and Mark 26:30 - "And when they had sung a hymn they went out to the Mount of Olives."

Acts 16:25 - "About midnight Paul and Silas were praying and singing hymns to God"

Heb. 2:12 - “[I]n the midst of the congregation I will sing your praise.”

James 5:13 - "Is anyone cheerful? Let him sing praise."

1 Cor. 4:15 - I will sing praise with my spirit, but I will sing praise with my mind also.

Eph. 5:19 - "Address[] one another in songs and hymns and spiritual songs, singing and making melody to the Lord with your heart."

Colossians 3:16-17 - "Let the word of Christ dwell in you richly, teaching and admonishing one another in all wisdom, singing psalms and hymns and spiritual songs, with thankfulness in your hearts to God. And whatever you do, in word or deed, do everything in the name of the Lord Jesus, giving thanks to God the Father through him." Glannon - "Rule 9(b) was promulgated under the authority of the Rules Enabling Act. If it is good poicy to add allegations of municipal custom and policy to the items listed in the rule, how should this be done?" Drawing on earlier case law, Professor Campbell has concluded the new plausibility standard requires, at a minimum, that “a complaint . . . contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.”

C. Campbell, A Plausible Showing, 9 Nevada L.J. 1 (2008) What was the Conley rule?

On such a focused and literal reading of Conley’s “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery. So here, the Court of Appeals specifically found the prospect of unearthing direct evidence of conspiracy sufficient to preclude dismissal, even though the complaint does not set forth a single fact in a context that suggests an agreement. It seems fair to say that this approach to pleading would dispense with any showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be able to make a case; Mr. Micawber’s optimism would be enough. Facts: Antitrust complaint against Baby Bells for anti-competitive agreement (to restrain upstarts and to steer clear of each other's territories.

Since these unfair agreements are often secret and denied, proof often turns on circumstantial evidence. What kind?
Conscious parallelism from which agreement is inferred. Twombly Complaint reads:

46. The RBOCs do indeed communicate amongst themselves through a myriad of organizations, including but not limited to the U.S. Telecom Association...

47. Defendants have engaged in parallel conduct in order to prevent competition in their respective local telephone and/or high speed internet services markets. They have refused to open their markets by dragging their feet in allowing competitors to interconnect, refusing to negotiate in good faith, litigating every nook and cranny of the law, and avoiding head-to-head compeition like the plague...

51. In the absence of any meaningful competition between the RBOC's in one another's markets...Plaintiffs allege upon information and belief that defendants have entered into a contract combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another. But is "parallel" conduct -- conscious parallelism-- by itself unlawful?

Not if just common reaction to the same financial circumstances.

Pleading must allege "plausible ground to infer an agreement"
This means enough facts to raise reasonable expectation of illegality, though not probability = pllausibility.
But conscious parallelism is in "neutral territory" - gives rise to equal inferences of legal and illegal conuct, thus creating no expectation. (the burden of discovery is greater for defendants than for Iqbal) Common Responses to Complaint:

Default/Default Judgment

Rule 12(b) Motions
--Subject matter jurisdiction
--Personal jurisdiction
--Notice/Service of Process
--Failure to state a claim (e.g., Iqbal, Doe, Dioguardi)

--Types of Responses to Allegations
>Lack Sufficient Information
--Affirmative Defenses
--Claims by Defendant (Cross-Claim, Counter-Claim, Third Party Claim) Ignore any allegations that merely recite the elements of the cause of action (e.g., “Ashcroft knew of, condoned, and wilfully and maliciously agreed” to subject prisoners like Iqbal “to harsh treatment solely on account of their race, religion, or national origin.”) Consider whether the remaining factual allegations are plausible, not merely conceivable. That is, based on the allegations that do not merely recite the elements, do the allegations make the conduct plausible, not merely conceivable? If they are not plausible, the complaint fails to state a claim. The new standard may have the greatest impact on employment law cases Which of the following responses by the defendant to service of the complaint
and summons constitutes a default? (There is more than one.)

A. Defendant does not answer, but files a motion to dismiss for improper
venue within twenty-one days. The motion is denied.

B. Defendant answers within twenty-one days and admits the allegations
of the complaint.

C. Defendant’s lawyer files an appearance within twenty-one days by
submitting a paper to the clerk (called a praecipe in many courts) giving
her name, address, and bar number, and stating that she is appearing
for the defendant.

D. Defendant herself brings a paper to the clerk saying that she plans to
defend, and then shows up in court on the twenty-first day saying she
is ready to go to trial.

E. Defendant answers the complaint twenty-five days after service of the
summons and complaint. The plaintiffs’ claims against Lacey were for unliquidated damages (not for a predetermined “sum certain,” Fed. R. Civ. P. 55(b), but for an indefinite amount to be determined by the court after weighing the evidence), and for injunctiverelief as well. The statute did not prescribe a specifi c penalty either, but instead set a range. In that case, which of the following statements is correct? See Fed.R. Civ. P. 55(b).

A. The clerk can calculate the damages and enter judgment for the calculatedamount, leaving the question of injunctive relief to the judge.

B. The court must hold an evidentiary hearing to decide damages and injunctive relief.

C. The court can enter a default judgment without holding an evidentiaryhearing.

D. The clerk can enter a judgment for damages and issue an injunction.

E. A default judgment must be entered for the relief sought in thecomplaint. The clerk's entry of default is to be distinguished from entry of a default judgment. "Entry of a default under Federal Rule of Civil Procedure 55(a) is not, as such, entry of a judgment; it merely permits the plaintiff to move for a default judgment under Rule 55(b)(2), assuming that the default is not set aside under Rule 55(c)." Thus entry of a party's default is only the official recognition (formal notice) that the party is in default. It is a prerequisite for the entry of judgment upon that default. There are three stages in a default proceeding--the establishment of the default itself, the entry of default and the final default judgment. Before entry of default, the clerk has to be satisfied, by the moving party's motion or affidavit, that the defaulting party has failed to plead or otherwise defend. In order to enter a final default judgment, the court must have subject matter jurisdiction and personal jurisdiction over the defaulting party. The defaulting party must have also been properly served with process. Motion to Set Aside a Default Judgment Under Rule 55(c) the defaulting party can move to set aside an entry of default for "good cause" (which is a liberal/generous standard for lifting the default). The courts consider factors such as:
proof default was not willful or culpable
swiftness of the action to remedy the default
existence of a meritorious defense
whether opponent would be prejudiced if the default is lifted
other equitable criteria Upon entry, a defaulting party is deemed to have admitted all well-pleaded allegations of the complaint (except for the amount of damages). Entry of default is an interlocutory order from which an immediate appeal ordinarily cannot be taken. The Appearance 7-Day Rule: If a default judgment is being sought against a party who has "appeared" that party must be served with written notice of the application for a default judgment at least 7 days before the hearing. Default judgment may be entered by the clerk if three prerequisites are met:

defendant defaulted because of a failure to appear;
defendant is not a minor or incompetent person; and
moving party submits an affidavit establishing the amount due is a certain sum. Default Judgment must be entered by Court in all other circumstances.
A court may (but is not required to) convene an evidentiary hearing (it can just rely on affidavits)
Default judgments are never automatically granted as a matter of right. The decision is at the discretion of the court . The default judgment is a final order, and is subject to immediate appeal (the appellate review is an abuse of discretion standard)
Alternatively, the defaulted party will move to set aside the default judgment under Rule 55(c) and Rule 60(b). Vacating a judgement by default is more difficult and only if:defaulting party meets the good cause test AND satisfies one of the Rule 60(b) reasons, the first three of which are subject to a one year time limit.
Technically, the district court may set aside a default judgment sua sponte (without a motion of party) Default Judgment It is an abuse of discretion to fail to set aside default judgment where defendant never received notice. The court must be satisfied that party received notice of motion. However, at least one court (Goldman) has held no Rule 55(b)(2) notice is required before a party is found to be in default for failure to appear, if the court had explicitly warned the party in an earlier order that failure to comply with certain orders could result in the imposition of sanctions, which included entry of default. The defendant may move to dismiss instead of answering. When answering the complaint, Rule 8b requires defendant to admit or deny each allegation in the complaint (technically you should admit the part of the paragraph that is true and deny the remainder, but some attorneys will treat each numbered paragraph as a whole and deny the whole allegation even if only part of it is untrue) In addition to responding to the factual allegations defendant may challenge the legal sufficiency of the complaint (ie failure to state a claim upon which relief can be granted). Defendant must assert any affirmative defenses (see list in Rule 8) in the answer but it can argue in the alternative (e.g., deny making the contract, but even if did enter into a contract plaintiff still can't recover because he gave defendant a release from all liability. Another example in employment law: the after acquired evidence doctrine. Answer may also include a counterclaim for damages to defendant. This is different from an affirmative defense. Defendant is not raising additional facts to defeat plaintiff's claim but is seeking relief from plaintiff. Complaint or counterclaim will include:
numbered paragraphs
a jurisdictional statement
a short and plain statement of the claim asserted
a demand for relief Suppose your client, Faulkner University, calls you and asserts that an Faulkner security guard was just served with a complaint against Faulkner for interfering with an employment contract between the plaintiff University of Kansas and its recent basketball coach, Bill Self, by inducing Self to break that contract to take a job as the Faulkner basketball coach. The complaint was filed in the Middle District for the U.S. District Court for Alabama and does not name Self as a co-defendant.

Without knowing more, what defenses to the complaint would you research in devising a response for your client? Consider subject matter jurisdiction, personal jurisdiction, venue and service as defenses, although you need more facts for each of them.

Whether plaintiff has stated a claim is another.

Also failure to join a required party?

All of these defenses are listed under Rule 12b. You should also consider Rules 12(e) and 12(f). What standard for Rule 12(b)(6) motion?
How does it apply to warranty claim?
What about a Rule 12(f) motion?
What about a Rule 12(e) motion? Procedural History Complaint filed Rule 12(b)(5) motion Amended complaint. Other motion practice Offshore answers, asserting lack of PJ Rule 12(b)(5) moot Offshore files Rule 12(b)(2) Is Rule 12(b)(2) motion meritorious?
Rule 12(h)(2) treats Rule 12(b)(6) and Rule 12(b)(7) defenses differently. Does this mean that Offshore coul have made a second pre-answer motion on these defenses?

How is an omnibus Rule 12 motion including the lack of personal jurisdiction defense, different from a special appearance? "Non-waivable" defenses:
12(b)(1) - subject matter jurisdiction
12(b)(6) - failure to state a claim
12(b)(7) - failure to join a party under Rule 19 Suppose the plaintiff alleges that the defendant made an ugly face at him as they passed in the hall, hurting his feelings, and sues for damages as a result.

What would happen if the defendant could waive the Rule 12(b)(6) defense by omitting it from a pre-answer motion and from his answer? Plaintiff amends complaint to add a new claim after the defendant’s Rule 12(b)(6) motion.

Is the defendant prevented by the omnibus motion rule from filing a second Rule 12(b)(6) motion? Here Hunter had amended complaint since Offshore's first motion. Why didn't this excuse Offshore's second motion? Suppose Offshore had never filed any pre-answer motion.

Does it waive the Rule 12(b) motions by not moving at all? 7. A running review question. Hunter sues Offshore for breach of contract.
Offshore moves to dismiss for insufficient process (meaning that it was
served, but the papers were defi cient in some respect, like omitting or using an
outdated summons). The court denies the motion.

A. May it now move to dismiss for failure to state a claim and insufficient
service of process (which challenges the suffi ciency of service, not of the papers
served prior to filing an answer)?

B. Has Offshore therefore waived these defenses?

C. But assume that Offshore argues that the defense of insuffi cient service
of process was unavailable to it when it fi led its first pre-answer motion. Is this a
sound reason to allow a second pre-answer motion?

Rule 12(g) exempts unavailable defenses from its omnibus requirement, but how likely is it that the defense of insuffi cient service of process was unavailable when Offshore moved to dismiss for insuffi cient process?

D. Exasperated but still game, Offshore now fi les a motion to strike somescandalous matter from the complaint. How should the court rule? No. Unless these defenses were somehow unavailable when Offshore fi led its fi rst pre-answer motion, the defenses should have been joined in that motion. No second pre-answer motion is permitted. Yes and no. The defense of insuffi cient service of process is waived by its omission from a pre-answer motion or answer, whichever comes fi rst. But Rule 12(h)(2) still allows Offshore to assert failure to state a claim by answer or later motion, up until the close of trial. Only if it’s correct. The latter motion presupposes that Offshore was served with process of some kind and therefore makes it very probable that it knew enough about how itwas served to be able to challenge service of process as well. The court should deny this motion, too, because this objection was also subject to Rule 12(g)’s omnibus rule. Rule 12(g) extends to any “motion underthis rule raising a defense or objection that was available to the party butomitted from its earlier motion.” Rule 12(g)(2). Offshore had the complaint atthe time it fi led its pre-answer motion and therefore could have read the supposedly scandalous matter in it. Because this objection was then “available”to it, it is now waived. 1. Defendant doesn't have to file an answer immediately, but may file a preanswer motion to dismiss under Rule 12(b) instead.
2. Several 12(b) motion are "fatal" (i.e., court has to dismiss the action if objection is valid) including 12(b)(1) (lack of SMJ), 12(b)(2) (lack of PJ) and 12(b)(3) (improper venue).
3. Several other 12(b) motions may not be fatal but ought to be dealt with at the outset of the case including 12(b)(4) (insufficient process), 12(b)(5) (insufficient service) and 12(b)(7) (failure to join a necessary party).
4. Defendant waives the 4 "disfavored" 12(b)(2)-(5) defenses if not raised in the first response to the complaint (either in a pre-answer motion or the answer) (see Rule 12(g) and 12(h))
5. The remaining "favored" defenses can be raised at any time (see Rule 12(h)(2) and (3)). What if plaintiff-whistleblower seeks
non-pecuniary damages for reputation? 6. A 12(b)(6) motion is the only 12(b) motion that goes to the merits of the case (i.e., a demurrer).
When raised in the answer not technically a 12(b)(6) motion but same standard applies.
Court assumes facts are true, and permits arguing in the alternative.
Court analyzes the legal sufficiency of the complaint itself; the judge does not consider evidence (Rule 56) or defenses (Rule 12c used after answer is filed, see R12h2)
Court may give plaintiff a chance to amend the complaint if insufficiency due to mistake in pleading (tactically many defendants wait to file a Rule 56 motion to avoid educating plaintiff's counsel)
Court may only dismiss some but not all claims.

7. In the same way Rule 12f similarly allows plaintiff to file a motion to strike legally insufficient defenses. How best to get an extension of time? Rule 12(a) - Answer normally due within 21 days
Rule 6(b) - Motion to extend time
Rule 12(b)(a)(4) - Pre-answer motion buys 14 days after the court rules on the motion Are complaints and answers held the same standards? Rule 12(f) - motion to strike "any insufficient defense"
Rule 8(c) - aff. defense offers an excuse if true; it does not deny the allegations of the complaint or mere conclusory
Rule 9(b) - heightened pleading requirement 1) Applicable rules are different Compare Rule 8(a)(2) ("showing") with Rule 8(c)(1) ("affirmatively stating" - less demanding)
2) Form 30 seems to allow "boilerplate defenses"
3) Policy considerations - Palmer emphasizes that defendant has less time than plaintiff to prepare versus, but Reis emphasizes notice. Another example: Denying in part. Suppose the complaint alleged that “Defendant negligently drove a motor vehicle against the plaintiff.” See Form 11. You represent the defendant and he says he did hit the plaintiff, but that he was driving at a lawful rate of speed and keeping a good look-out when the plaintiff without warning (and without looking) darted out between two parked cars too quickly for your client to stop. How should you answer the allegation? Example: Lacking knowledge or information. Suppose the defendant accused of “negligently driving a motor vehicle against the plaintiff” was also hurt in the accident and remembers nothing. How should she answer? p. 495 note 5. Example: In a state court, plaintiff sues defendant for negligence as a result of a motor vehicle collision in which both were drivers. If the defendant thinks that the plaintiff was at fault, must she plead contributory negligence? Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

(3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

(A) against a represented party for violating Rule 11(b)(2); or

(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37. Good faith effort to change law Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

(b) Amendments During and After Trial.

(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

(2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time. a single automatic right to amend pleadings a single time before a responsive pleading is filed
once as a matter of course within 21 days after original pleading to be amended was served (if no responsive pleading required)
within 21 days after service of a responsive pleading (e.g., answer) or a pre-answer motion (e.g., 12b, e, or f).
The second time you must get leave of court Before trial:
"When justice so requires"
When does justice not so require?

Two circumstances when can amend during or after trial:
when issue not raised is tried by consent of both parties
when it will not create unfair prejudice

What should lawyer have done? reason for the amendment
amending party's diligence
any prejudice to opposing party
whether amendment futile
prior amendment if any undue delay
bad faith, or
a dilatory motive Three circumstances when amendment may relate back:
law specifically allows
arises out of same transaction and occurrence
change name of party if... Rule 18(a) - may bring as many claims as she has against a party in a single suit (related or unrelated).

Rule 13 - counterclaims (2 kinds)
13(a)(1) - compulsory (must be asserted as a counterclaim if arises from the same transaction or occurrence as the initial suit; otherwise barred from bringing claims in a second action later)
13(b) - permissive (unrelated counterclaims may be brought in the same suit or brought separately later) Rule 13(g) - Cross-claims against a co-party (someone on the same side of "v")
Proper if it rises from the same transaction or occurrence as the main claim
But once you add a proper cross-claim then under Rule 18(a) you can add any cross-claim even if its not related. Rule 20(a)(1) - Allows multiple plaintiffs (e.g., 200 pax in a plane clash) to bring their claims together in a single suit if the claims arise out of:
Same transaction or occurrence or series of transactions or occurrences, and
Involving some common question of law or fact (but does not have to be based on the same legal theory or seek same kind of damages)

Rule 20(a)(2) -- Allows plaintiff(s) to sue mutiple defendants (subject to the same dual conditions noted above) Is the repeated conduct of hiring executives under false pretenses a common transaction, or a set of separate events triggered by a common policy? (note plaintiffs did not even work for the company at the same time)
What evidence would the same on the four claims?
Why did the plaintiffs chose to sue together? Is there any ethical restrictions on choosing to join coparties strictly for tactical reasons? (Rule 11 permits if the plainitffs all have colorable claims)
Why would many courts allow joinder under such facts? What is a cross claim? (a claim against a co-party, i.e., someone on the same side of the "v")

What are the requirements for a proper crossclaim under Rule 13(g)? (proper if it arises from the same transaction or occurrence as the main claim)

BUT once you add a proper cross-claim then under Rule 18(a) you can add ANY cross-claim (even if its not related) Another Example: Suppose that Case had delivered the backhoe to the job site and it had been damaged by one of Fitz's workers. Could Case implead Fitz into the Erkins suit for the damage to the backhoe? (No, doesn't meet a passing-on-the-liability test)
Key take-aways:
The plaintiff can assert a direct claim against a impleaded third party only if it can satisfy the diversity requirement or there is some other independent basis for SMJ (thus even if compulsory counterclaim court will not likely bar her from bringing claim in separate suit).
But 1367(b) doesn't bar the third party complaint even if no diversity between the third party plaintiff and third party defendant because it is not brought by the orginal plaintiff; however, the court must have personal jurisdiction over the impleaded party
Once a party properly impleads a third-party defendant Rule 18(a) allows her to assert other claims against that party.
The defendant can impled a person if the third party might be liable in contribution or indemnity even if she is directly liable to the plaintiff.
There is no right of contribution in states that have switched from joint and several liability to several liability (i.e., each defendant only pays its share of damages).
Where the plaintiff sues two defendants and one brings in a third party defendant, most courts allow the other defendant to assert a claim against the impleaded party even though Rule 14 does not expressly permit this Step 1: Pragmatic assessment of absentee's interest and the effect of adjudication without the absentee. The absentees ought to be made a party to case (i.e., joined) if:
Rule 19(a)(1)(A) - complete relief cannot be accorded to the original parties without absentee's participation
Rule 19(a)(1)(B)(i) - if absentee's interest might be impaired if the action goes forward without her.
Rule 19(a)(1)(B)(ii) - if adjudicating without absentee might leave her subject to inconsistent obligations. Discretionary analysis as to what to do if an absentee fits one of the criteria in Rule 19(a) but cannot be made a party. Torrington Co. v. Yost Step 2: Determining whether joinder is feasible.

Step 3: Decising whether to dismiss or continue. Who was the plaintiff in Torrington?

Who did it sue, and why?

What relief did Torrington want from the court?

Who moved to join INA as an additional party? Why?

What are the two reasons for why INA should be joined (i.e., made a party)? So what subsections of Rule 19(a) are implicated?

Why can't INA be made a party to the case?

What discretionary factors does the judge consider in deciding what to do if a party who should be joined under Rule 19(a) cannot be?

How did the court apply Rule 19(b) to the facts of the case?

What did the court order? (dismissal of the action) Potential prejudice to the parties or the absentee if the case goes forward without the absentee
Ways to fashion the judgment to avoid such prejudice
Whether it can provide adequat relief to the parties to the case if the absentee is not made a party.
Whether the plaintiff will have an alternative remedy if the case is dmissed for nonjoinder Another example: Haas claimed that certain shares of stock held by the bank in Glueck's name were jointly pruchased by hi and Glueck. He sought an order for the bank to issue certificates for one-half of the shares in his name. The court held that Glueck had to be joined as a defendant in the action. Is Glueck a required party under Rule 19(a)?
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