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Civil Procedure Outline

Adverserial system 2 parties duke it out in court. Party-run but still
according to rules of fairness and in pursuit of truth. Judge plays a passive role.
Access to courts and liberal notice pleading
Flexibility to change case with more info versus prejudice
Providing notice/avoiding surprise
Procedural posture- who is making the court decision, whether it is on
appeal, whether a ruling is dispositive, etc.
Substantive law shapes what should be pled/to avoid 12b6, shapes what
discoverable under relevance, shapes summary judgment by creating framework
for genuine issue of material fact, shapes the burden of proof at trial/what
evidence is required.


An Overview of the Procedural System
A. Selecting a proper court
B. Commencing the action: plaintiff must serve defendant with a service
of process, typically a summons which directs the defendant to appear
C. Pleading
D. The response the defendant must respond to the complaint
1) Motions to dismiss
2) Answer the defendants response if the motion to dismiss is
3) Counterclaim
E. Discovery
1) Depositions formal oral examination of a potential witness
3) Document production
4) Physical and mental examinations
5) Request for admission agreement on a certain set of facts
Summary Judgment
G. Setting the case for trial if trial has not been terminated by dismissal,
summary judgment or settlement it must be set for trial usually one party
will file a note of issue.
H. Jury and Selection
The Trial
Jury Instructions
K. Verdicts
1) General factual issues presented with legal ramifications
2) General with interrogatories factual issues along with
3) Special verdict all factual issues in the case are presented to
the jury as questions. Judge applies the law to the jurys answers
L. Post-trial motions
1) Motion for a judgment notwithstanding the verdict
2) New trial

M. Judgment - final determination of the lawsuit can be in the form of

an award of money, a declaration of rights between the parties, a specific
recovery of property, an order requiring or prohibiting some future activity
N. Appeal
O. Conclusiveness of judgments res judicata defining the scope and
effect of the final ruling
Substance/Procedure Distinction:
A. Substantive law defines the rights and duties of ordinary citizens in
relation to one another (the ends) while procedure sets out the rules that
govern the application of the law when those rights are violated governs
the decisional forms (the means).
B. The Ideology of Advocacy, Simon - Procedure serves as an explicit
way of sublimating conflict and underlying values and can distract from
resolution of fundamental substantive values. Cost of litigation itself limits
access to court or may push a case that otherwise would win in court to
C. Rule of law: sublimating conflict, safeguarding the integrity of
institutions, negative peace, substantive value issues may be
overshadowed by lengthy procedural process
D. Ideal of law: secures justice in society, risks conflict for justice,
positive peace

Historical Background:
A. Rise of equity resort to a petition or bill directly to a king where
remedies could not be sought in the traditional system. Petition would go
to the Chancellor under the Chancery. Certain types of complaints were
then filed in this way. Equity developed in personum actions in that they
could order a person to act or to prohibit action.
B. Saw the development of two different systems law and equity.
Equity allowed greater discretion. The two systems competed and then
evolved into a dual system.
C. Federal Rules allowed for the merger of law and equity. Actions that
were originally under equity do not require a jury trial whereas actions
under law do. FRCP introduced claims, cross-claims, counter-claims, third
party practice, comprehensive discovery proceedings, and appeal options.
Working with the rules is a combination of statutory and case analysis.
D. Rules of Courts as Politics: What is valued within the procedural
system and how does this affect the actual procedures: shaped by culture,
history, present political and social circumstances.
E. Gender and Race: social and cultural norms shape access to courts.
System of privilege within the current system in which norms often dictate
a hierarchical structure providing variances in access to court difference
between federal courts and other courts such as housing or civil courts
illustrates a structure of privilege


Process Values and Access to Justice:

Rule 1: Scope and Purpose of Rules

Sets out the aspirational and balancing framework of the Federal Rules of Civil
Procedure, which subsequently shall be construed and administered to secure
the just, speedy, and inexpensive determination of every action. Courts
therefore aim to balance between these three priorities when addressing civil
1) Rule: Termination of public assistance payments without a pretermination evidentiary hearing is a violation of due process
2) US Supreme Court essentially recognized the central role of
notice and hearings as elements in shaping access to courts holding
that states termination of public assistance payments to a particular
recipient without affording him the opportunity for an evidentiary
hearing prior to termination denies the recipient procedural due
process in violation of the Due Process Clause of the Fourteenth
Amendment denial of means of survival without redress and ability
to present evidence orally or confront/cross-examine
witnesses (Justice) Court will not impose standards beyond
rudimentary due process in order to prevent drain on fiscal
administrative resources minimum procedural safeguards in a pretermination hearing. (Efficiency and Cost).

Four types of values guiding litigation:

1) Dignity values: the loss of self-respect that a person might
suffer if denied access to litigation. People affirm dignity by seeking
Buffalo Creek: Restores dignity of the victims simply because
it allows them to bring the suit. Infuriated by Pittstons refusal to
take responsibility and the settlement allowed eased this concern.
Those who experienced an economic loss could articulate their
dignity and loss in more fiduciary terms
2) Participation values: litigation as a mode of participation in
society, a way to exert influence in societal decisions.
Buffalo Creek: Joining together to seek relief by starting a
committee to seek a lawyer. People acting together can have
some effect
3) Deterrence values: instrumentality of litigation as mechanism
for influencing or constraining individual behavior in ways thought
to be socially desirable setting social norms.
Buffalo Creek: Some of the Ps motivation for suing was to
stop Pittston from doing this again. (Punitive damages)
4) Effectuation values: litigation as a means through which
persons are enabled to get or pursue what they believe is rightfully
theirs. Plaintiffs seek finality and relief.
Buffalo Creek: Monetary damages for property, emotional
distress and vengeance.


Models of Civil Litigation: Private versus Public Law

Adverserial Private Law

Framework: works within a
more self-contained framework
that is party initiated,
retrospective relying on
substantive law, with less
involvement of the judge

Public law framework: more

flexibility in the application of
procedures, more negotiation, ongoing
supervision of the court, public policy
dimension of the issue. Using
adjudication as a type of social

Lawsuit is bipolar lawsuit 1) Party structure is not rigidly
bilateral, may have multiple parties
is a contest between two
individuals or parties
2) Fact inquiry is not
Litigation is retrospective, historical/adjudicative but predictive
controversy is about an identified and legislative.
set of completed events
3) Relief is not conceived as
compensation for past wrong, it is
3) Right and remedy are
forward looking often with a policyinterdependent scope of relief
making dimension. Remedy not
derived from the substantive
imposed but negotiated
4) Subject matter is not purely
Lawsuit is self-contained private but a grievance about the
operation of public policy.
impact confined to the parties
5) Scope of lawsuit is shaped by the
court and parties taking into account
5) Process is party-initiated
broader public interests. Judge is not
and party-controlled. Case is
organized and issues defined by passive and not limited to analysis and
statement of governing legal rules but
the parties, judge plays a minor
rile and will not intervene to help active in doing fact evaluation and
either side if it fails to recognize organizing and shaping litigation to
ensure viable outcome
a motion that can be filed, etc.
6) Decree does not terminate judicial
involvement, its administration may
require continued participation of the
6) Final ruling or settlement
terminates judicial involvement
Generally, one of the first considerations of a lawsuit is who to sue which
brings up questions of what can be recovered from the Defendant. The type of
remedy sought will shape the case. Remedies are what the courts can give to the
Plaintiff. Issues of access to justice, which is the question of whether barriers to
litigation are too high or too low, can affect obtaining remedies.
3 Categories of Judgments

A. Judgment that transforms a legal relationship

1) Divorce, real estate
2) Transformational because the persons whose interests are
determined must either conduct themselves in a way that recognizes
the new legal relationship or risk the possibility of further legal
B. Judgment that creates an obligation to perform or refrain from doing
a specific act
C. Judgment creating an obligation to pay money
A. Definition monetary damages that substitute some form of specific
B. Most remedies are substitutionary which makes money damages the
most common form of relief. This is because (1) we live in an economic
system and most claims are for debt and (2) specific remedies are
sometimes of impossible to grant. Courts can encounter difficulties when
they try to measure substitutionary remedies. Substantive law and
procedure help to define them.
CLASS NOTES 09/15/14
Relieft and Remedy
a. Relief: Need legal decision from the court, it is transformative, it
transforms the relationship between the plaintiff and the defendant
i. Part of a case planning problem, what is the goal and objective of the
ii. Lawyer might look for alternative disupute resolution, lititgation is not
the only way
iii. Can't proceed until you understand the types and possbility of relief in


Money Damages and Reliefs

1) Compensatory Damages
Definition Economic Damages that will compensate the
P for money he has lost (lost wages due to an accident) or has had to
pay (hospital bills)
Substantive law requires rules for the measurement and proof
of damages. Courts enforce these rules through procedure and
evidence such as medical bills, amount of last wages, etc.

Pain and Suffering

Definition Non-economic harm such as emotional
ii) Not easy to define these types of damages. Sometimes
the court will take the economic damages and multiply x 3. The
judge must instruct the jury to use common sense and


reasonable judgment in light of the evidence. No expert witness

is required.
Other problems with non-marketable damages
Courts dont just ask the P how much they want
because they are afraid of over exaggeration.
Individualizing damages to find a perfect remedy or
exact compensation for the harm suffered is time consuming.
iii) Because lawsuits are so long, interest can be added to the
Pre-judgment interest time the claim starts

CLASS NOTES 09/15/14

a. Money Damages/ Relief
i. Damages are a form of legal relief- default
Rule of substantive law governs the capacity of relief, and
substantive law contain rule for proof of damages
ii. Injunctions are equity relief
Only avaliable in certain circumstances
Only if money relief is inadequate
iii. Punitive damages
Willful, malicious intent, reckless
Court need to decide whether the jury decided punitive
damages are constitutional and is proportional to the
compensatory damages
iii. Usually it is 3 to 1 punitive to compensatory
The action is reprehensible, should be proportional to the
defendant's bad conduct
Decided the 3 to 1 punitive to compensatory damages
The constitutional frame work of punitive damages has not
been there for the last 100 years until recently
iii. Distrcit court has to reach finality before you can get review in
Appellate Court
Review de Novo-- Look at it fresh, new
v. Sigma Chemical v. Harris
Case about employee leaving after signing a non-compete
How much the court need to say to justify the injection?
iii. Bench Trial: No jury
The threat of harm to Sigma if an injunction were not granted
greatly outweighs the threat of harm to Harris if an injuntion
were granted
vi. Declaratory Relief
A party wants a declaration of something, eg. Contract
1. Preliminary Injunctions and temporary restraining orders
a. All temporary relief will be granted by a judge, not a jury

b. Judge must act without the full adversarial exchange of a trial

c. Plaintiff must established that he is likely to suffer irreparable harm in the
absence of a preliminary relief and the balance of equities tips in his favor,
and the injection is in the public interest
2. Winter v. Natural Resources Defense Council, Inc.
a. Plaintiff sought injection that prohibited Navy from training with sonar
b. District court granted the plaintiffs request stating that plaintiffs had
demonstrated a probability of success on their claims under NEPA and the
c. Plaintiff under the Ninth Circuit precedent had established at least a
possibility of irreparable harm to the environment
d. Court of Appeal narrowed the terms of its injunction
According to Navys own reports, it would cause severe damages to
marine mammals
ii. Court held that the balance of hardships and consideration of the
public interest weighted in favor of the plaintiff
iii. The 22,00 yard shutdown zone imposed by the district court was
unlikely to affect the Navys operations
Navy has previously certified strike groups that had not trained under
such conditions
e. Defendant argued that plaintiff must demonstrate a likelihood of
irreparable damage, not just a possibility
Must be likely, not just possible
ii. Los Angles v. Lyons
iii. Affirms District courts conclusion that plaintiff had already
established near certainty of irreparable harm
However, such injury is outweighed by the public interest and the
Navys interest
f. Significantly understated the burden the preliminary injunction would
impose on the Navys ability to conduct realistic
g. Balance of equity tip in favor of the Navy
h. Dissenting Opinion
Evaluating equity on a sliding scale, sometimes awarding relief
based on a lower likelihood of harm when the likelihood of success
is very high
3. School of thoughts on preliminary relief
a. Likely to succeed on merit, and likely to suffer irreparable harm without
b. Sliding scale(see above)
c. Combination of probable success and the possibility of irreparable injury
or that serious questions are raised and the balance of hardships tip sharply
in his favor
d. The outcome of this case turns on the public interest
4. Provisional Remedies and Due Process
a. Garnishment
Involves asking some third party, often the defendants bank or
employer not to pay him because the plaintiff has a claim on it
CLASS NOTES 09/16/14

1. Preliminary Relief
a. Have much higher standard compared to general relief
2. Winter v. National Resource Defense Council, Inc.
a. Majority opinion
Likely irreparable harm to the plaintiff
ii. Plaintiff likely win on merit
iii. Public interest
b. Dissenting Opinion
Possibility of harm would suffice
ii. Very likely prevail on merit
1. Arbitration
i. Result in an award that is essentially final and not subject to further
ii. Parties can choose the arbitrator
iii. Can design own procedure
Can insist, that arbitrator will not refer to the ordinary rules of
contract but instead will adhere to the tradition that have
develop around this particular relationship
iv. Less expensive than adjudication
v. More private
vi. Arbitrator can decide matter more softly than a court
vii. When litigation, both parties are in adversarial relationship, arbitration
change the nature of the relationship
2. Mediation
i. Involves no statutes establishing structured mediation process
No discovery
No enforcement, the mediator suggest what approach to follow
1. Federal Rules of Civil Procedure
a. Different from statute, not directly enacted by a legislature
b. Congress empowered judge to write the rules
c. Rules, unlike federal statute, which can deal with any topic concerning
which the constitution allows Congress to legislate, the Rules may only
deal with practice and procedure
d. Can not be substantive
e. A series of committees appointed by the Chief Justice of the United States
considers proposed amendments to the rules
f. Committee-conference-supreme court
2. Bell v. Novick Transfer Co.
a. Defendant moved to dismiss the complaint


Failed to state a claim against the defendant and each of them upon
which relief can be granted
ii. Alleged only that an accident occurred due to the negligence of the
defendants as a result of which the plaintiff were injured
iii. Fail to allege the specific act of negligence by the defendant of which
the plaintiff complain
b. Court ruled that under Rule 8 of Federal Rule of Civil Procedure, which
requires only a short and plain statement of the claim showing that the
pleader is entitled to relief
c. If defendant want more definite state, it can be acquire through a
interrogatories under Rule 33
3. Two school of thought regarding complaints
a. General: more cases being resolved justly, on factual merits, allow weak
case to survive longer
b. Specific: weed out the weaker cases, but eliminating a certain number of
claims that would be strong if they gained access to the discovery
CLASS NOTES 09/18/14
1. Federal Rule
a. Can not disrupt substantive law
b. Notice pleading
Does not need to go into detail about the case, as long as it states the
c. Plaintff want to state the complain as general as possible, defendant want
Defendant need to prepare for the allegation, thus need more
ii. It is story telling for the defendant
2. Bell v. Novick Transfer Co.
a. Defendant claimed that plaintiff''s allegation is vague
Federal Court stated that maybe it is vague under Maryland statute,
but according to FRCP, the complaint is valid
b. Discovery is the phase to seek detail
1. The Complaint/Pleading
a. Rule 7(a): include complaint, the answer and some other initial paper in a
b. 7(b): different from motion, in that motion is request for a court order
c. Complaint
First pleading
ii. Plaintiff explains his grievance and asks the court to grant some
iii. short and plain statement of the claim showing plaintiff is entitled to
relief and a demand for judgment for the relief sought





1. Defendants first pleading

2. Rule 12(b) listed series of defense motions
1. Facts does not hold up because of matter of law, no legal
2. Rule 12(b)(6)
a. Admits for the purpose of motion, that all facts are true
b. Even if it is true, the law grants plaintiff no legal remedy
3. Court must assume that all factual allegation are true
Haddle v. Garrison
Plaintiff claimed he was improperly discharged from his employment
by defendant in an attempt to deter his participation in a witness in a
Federal criminal trial
ii. Because plaintiff was an at-will employee, he suffered no injury, atwill employee can be discharge at any given time
iii. Under Rule 12(b)(6), Haddle failed to state a federal claim upon
which relief can be granted
Court of Appeal affirmed
Supreme court held that interference with at-will employment may
give rise to a claim for damages under the Civil Right Act of 1871
1. Disagreed wit the 11th circuit that petitioner must suffer an
injury to a constitutionally protected property interest to state
a claim
2. The gist of statute is not directed at deprivation of property, but
intimidation or retaliation against witnesses in federal-court
3. The fact that employment is not property for the purpose of due
process does not mean that loss of at-will employment may not
injure petitioner in his person or property
4. Harm is compensable in tort law
5. Thomas Cooley: the fact that employment is at will of the
parties, respectively, does no make it one at the will of others
6. Reversed and remanded
Sorting the cases
The Field Codes
1. Directed pleaders to state facts constituting a cause of action
ii. Rule 8(a)
1. Jurisdiction
2. Entitled to relief
3. Demand for relief
Conley v. Gibson
Purpose of pleading is to facilitate a proper decision on the merits
ii. Discovery will do most of the sorting between grounded and
ungrounded claims
Bell Atlantic Corp. v. Twomly
Re-interpreted Conley v. Gibson
ii. Anti-trust claim is insufficient if only conforms to Rule 8(a)(2), it
must include contextual fact that make the claim plausible
iii. Change the idea of notice pleading, must have factual backgrounds
Plausible pleading


To survive 12(b)(6), complaint must contain sufficient factual matter

accpeted as true
h. Ashcroft v. Iqbal
Iqbal filed an complaint that he was deprived of various
constitutional protections while in federal custody
ii. Defense raised the issue of qualified immunity which the District
court rejected concluding the complaint was sufficient to state a
claim despite petitioners official status at the time in question
iii. The court found that petitioners appeal did not present on of those
Twombly context which called for a flexible plausibility standard
Complaint can not be conclusory
1. Can not be legal conclusion
2. Must have some plausible facts
Iqbals argument failed because
1. His allegation did not have factual content that would enable
the court to come to the reasonable conclusion that the
defendant actually is liable for the misconduct
2. Twomly determined the sufficiency of a complaint sounding in
antitrust, the decision was based on the interpretation of
application of Rule 8
3. Rule 9s generality claim does not take priority over Rule 8
which require factual pleading
i. Stradford v. Zurich Insurance Co.
Doctor Stradford didnt pay insurance from Oct 10, 1999 to
December 6, 1999. After he resumed payment, he filed a claim on
policy because of the damages in his office. Northern insurance
believed that willfully devised a scheme to defraud the defendant and
obtain money by false pretenses and representation
ii. Stradford move to dismiss the complaint under particularity under
Rule 9(b)
1. The claim doesnt satisfied the circumstance part of the 9(b)
which require time, place, and nature of the misrepresentation
to be disclosed to he party accused of fraud
2. It is unclear, whether the defendant claim that doctor Stradford
inflated the amount of the damages never happened
3. Primary purpose of 9(b) is to afford a litigant accused of fraud
fair notice of the claim and the factual ground upon which it is
iii. Defendant later amended to complaint to make it clear that Dr.
Stradfords office was flooded at a time when he permitted the policy
to lapse
j. Jones v. Bock
plaintiff alleged that after his injury, the prison guard still make him
to heavy work which aggravated his injuries
ii. Whether PLRA is a pleading requirement the prisoner must satisfy in
his complaint or an affirmative defense the defendant must plead and
1. PRLA is an affirmative defense
iii. Inmates are not required to specially plead or demonstrate exhaustion
in their complaints

CLASS NOTES 09/22/14

1. Haddle v. Garrison
a. Supplemental Jurisdiction
When you have federal jurisdiction, you can have related state claim
to file in deferal court
b. Held that no need to be constitutionally protected property
c. The Supreme Court disagreed about the substantive law under the Civil
Right on this case
d. 12(b)(6)
Law defining in that the district court must decide that the facts in
the claim are able to get relief
2. Bell Atlantic v. Twombly
a. Notice pleading was too liberal, allow many cases to get into discovery
b. Change the short simple claim to plausibility
c. How does judge decide when the complaint is plausible or not?
Encourage judge to use common sense and judical experience
3. Swanson v. Citibank
a. Recent discussion of Iqbal
b. Alleging discrimination based on federal statute
The appraisal company lowered the value of the house
c. The issue is the sufficiency of her comlpaint and whether or not post-Iqbal,
the plausibility is required?
d. Higher burden of pleading post Twombly and Iqbal
Judge can make merit based decision at the pleading stage
ii. Judge can allow limited discovery and hold the 12(b)(6)
e. Pleading is different from proof
f. Not many Supreme Court knows a lot of Civil Procedure, thus they dislike
g. Important case post Iqbal on how to determine plausibility
4. Stradford v. Zurich Insurance Co.
a. Higher degree of pleading for fraud because fraud claim qualified for
punitive damages
b. Counter Claim: X sue Y, Y sue X back, Rule 13(a)
c. What does it mean to have greater specificity under Ruler 9(b)?
d. Why Rule 9(b) singled out fraud given the concealing nature of the fraud?
e. Does 9(b) raise the Rule Enabling Act?
f. Rule 9(b)
Relationship between substantive and procedural law
5. Jones v. Bock
a. Rule 8(c ) requires defendant to sumbit affirmative defense
Supreme court has to determine whether a new PLRA statute is a
burden of pleading exhaustion or a affirmative defense
ii. It is an affirmative defense
b. Issue of who bear the burden of claim when it comes to bringing the
c. Party may not go forward if they did not exhaust adminstrative remedy

d. Whoever has the burden of pleading in pleading will have the burden at
e. How is the defendant going to know whether it is exhaustive if it is not
listed under 8(c )
f. Supreme Court changed the meaning of Rule 8(a)
1. Rule 11
a. Regulates the way lawyers and clients conduct themselves, establishing
standards for investigation of law and facts
b. Rule 11 allows court to enforce the standards in the context of litigation
rather than in an independent bar disciplinary proceeding that might occur
long after the lawsuit was over
2. Walker v. Norwest Corp.
a. Massey, attorney for the Walkers failed to plead complete diversity of
citizenship and plead facts tended to show there was not complete
diversity. He failed to allege citizenship of many of the defendant
b. Whether Rule 11 require the kind of complicated, in-depth and possibility
impossible inquiry that would have been necessary to determine the
defendants citizenship before filing a complaint based on diversity of
c. Filing a diversity is a burden rested on the plaintiff, affirmed
3. Christian v. Mattel, Inc.
a. Hicks, filed a meritless claim against defendant Mattel on behalf of
Christian. Christian filed a copy-right complaints stating that the 1996
Cool Barbie door infringed the 1996 Claudene doll
b. Court held that reasonable investigation by Hicks would have revealed that
there was no factual foundation for the copy right claim, and his conduct
fell below the standards of attorneys practicing in central district of
c. Hicks argued that even if the court were justified in sanctioning him under
Rule 11 based on Christians complaint, the conclusion is impermissibly
because it considered other misconduct that can not be sanctioned under
Rule 11 such as discovery abuses.
CLASS NOTES 09/29/14
1. Rule 11
a. Anything that is written is governed by Rule 11
b. It require lawyer to have done both factual and legal investigation before
filing a claim
c. Make lawyer independently responsible to the court
d. Only apply to federal litigators, some states picked up Rule 11
2. Bridges v. Diesel Service, Inc.
a. Plaintiff did not file a charge with Equal Employment Opportunity
Commission until after the commencement of this action
b. Failure to perform legal research
c. Sanction is to deter conduct, it is not necessary because in this case, it was
a silly mistake and the court is certain it will not happen again

d. Dont want to discourage people with disability from filing claim

e. Defendant counsel want to show that plaintiff counsel is incompetent in
this field
3. Walker v. Norwest Corp.
a. Rule of complete diversity
All P must be different from all D
b. Rule 11(b)(2) violated
4. Christian v. Mattel, Inc.
a. Sanctions are limited to what suffice to deter repetition, not all are
1. The ResponseMotion and Answer
a. Pre-Answer Motions
Motion to dismiss based on subject matter jurisdiction
ii. Motion to dismiss based on not a matter of law
iii. Pre-Answer motions take no position on the truth or falsity of
plaintiffs allegations
Common for motions to decide without oral hearing
If court deny pre-answer motion, defendant must answer Rule 7(a),
b. The Answer
Deny the truth of the one or more allegations (Denial 8(b))
ii. Assert matters that will wholly or partially defeat plaintiffs claim
(Affirmative Defense 8(c))
iii. Can also draft counterclaims, cross-claims and third-party claims
2. Amendment of Pleading
a. Complaint can be amended when discovery revealed more facts of the case
b. Rule 15(a) sets out basic amendment rules and states that The court
should freely give leave when justice so requires
Responding to Complaints: Default and Pre-Answer Motions Pg. 426-456
3. Default
a. Failed to respond a complaint results in default judgment. Rule 55
4. The Pre-Answer Motion
a. Can have both substantive and procedural defense
b. Must admit to the substantive allegation of the complaint
c. Motion does not require a party to set forth her version of the facts alleged
in the complaint
d. Rule 12 delay the time for defendant to answer
e. Rule 12 (e)
Motion for a more definite statement in the pleading
ii. Rarely invoked, vague claim will be subjected to 12(b)(6)
f. Rule 12 (f)
Motion to strike


Allows a party to challenge a part of a pleading that fails under the

substantive law, even though the rest of the pleading states a claim or
iii. Forces removal of irrelevant and prejudicial allegation in a pleading
g. Rule 12 (C)
Motion for judgment on the pleadings
ii. When defendant hasnt denied any allegation of the complaint or the
defense is legally insufficient plaintiff win
iii. When complaint is filed after the statute of limitation defendant win
5. Answers
a. Denials
Rule 8 (b) requires the defendant to deny only those allegations that
he actually disputes
ii. Rule 8 (b)(6) provides any allegation that is not denied is deemed
iii. General Denial: deny everything
b. Zielinski v. Philadelphia Piers, Inc.
Plaintiff filed complaint against PPI because he thought PPIs
employee injured him. However, employee is actually of CCI
ii. The defendant filed a ineffective general denial
1. It complied with some of the facts of the allegation but also
denied some
2. Require the defendant to filed a more specific answer than a
general denial
3. A specific denial of parts of the allegation would have warned
the plaintiff that he had sued the wrong defendant
iii. Under Pennsylvania law, an allegation of agency is deemed admitted,
when the defendant failed to amend the answer within the time
Under the doctrine of equitable estoppel, defendant can not take
advantage of plaintiffs mistake when the mistake is perpetuated by
the defendants inaccurate response of ownerships
6. Reply
a. Pleading stop with the answer
Answer contain counter-claims
ii. Rule 7 (a)(3) requires a reply if the answer contains a counter-claims
designated as a counter-claim
1. If contain affirmative defense, no reply is required even if some
facts could have support counter-claims
7. Amendment
a. Rule 15 allows revision of parties original stories and limits the extent
and timing of such change in the plot lines
Easy Amendment: allow the pleading to reflect the parties changed
view of the case as it develops
ii. Prejudice: the idea that at some point the other side has to make
decision about how to present its case, decision that become difficult
if the story it has to meet continually shifts
b. Beeck v. Aduaslide N Dive Corp.


Defendant initially admitted to the manufacture of the slide that

injured the plaintiff, but later move to amend its answer to deny
ii. Court granted amendment on the grounds that amendment should be
freely given in the absence of any apparent reason such as undue
delay, bad faith or prejudice
1. The defendant relied upon the conclusion of three different
insurance companies
2. No contention that defendant influenced the erroneous
iii. Court dismissed plaintiffs argument that the two-year statute of
limitation would destroyed plaintiffs chance to recover
1. held that plaintiffs argument is contingent on the fact that they
would lose at trial based on the factual issue
2. And they can still press their claim against other parties
Separate Trial
1. On the issue of whether the slide was manufactured by the
2. Jury found that the slide is not manufactured by the defendant
The risk of harming the plaintiff is less than the risk of having the
wrong defendant
c. Moore v. Baker
Plaintiff sued doctor defendant for failed informed consent,
defendant moved for summary judgment, plaintiff moved to amend
her complaint asserting negligence
ii. Whether the original complaint gave notice to the defendant of the
claim now being asserted?
1. No, nothing in the original complaint makes any reference to
nay acts of alleged negligence by Dr. Baker either during or
after surgery
2. Original complaint focuses on defendants action before
surgery, amended complaint focuses on action during and after
d. Bonerb v. Richard J. Caron Foundation
Plaintiff injured while playing basketball at the defendants facility.
Plaintiff alleged that the court is negligently maintained
ii. Plaintiff amend his complaint to add new cause of action for
counseling malpractice, defendant objects on the ground that it does
not relate to the original pleading
iii. Original and amended complaints derived from the same nucleus of
operative facts
1. It is true that negligent and malpractice are different
2. But, original complaint advised defendant of the same
transaction or occurrence giving rise to these different theories
of negligence
3. Alerted the defendant to the possibility of claim based on
negligent performance of professional duties
As to matter of prejudice, defendant claimed they will need to go
back to drawing board, but discovery hasnt started yet

CLASS NOTES 09/30/14

1. Pre-Answer Motions
a. 12(b): Lawyer can use it as defense, it needs to be raise in some manner
b. 12(b)(2): the state doesnt have the power to reach the defendant. The
power of state to reach the defendant
Need to be raised right away, but this can be flexible
c. 12(b)(3): wrong place to bring the suit
d. 12(b)(4),(5): how you were served
e. 12(b)(6): Demurrer
Every defendant is filing a 12(b)(6) to question the plausibility of the
f. 12(b)(7): Whether the plaintiff left out a party
g. 12(b)(2)-(b)(7) needs to be raise right away
h. Subject Matter Jurisdiction has no time limit, the court can raise it anytime
i. Motion of Judgment Pleading
Early summary judgment
j. Plaintiff needs to follow the same structure of the complaint to draft
2. Zielinski v. Philadelphia Pier, Inc.
a. General denial is ineffective, also failed to correct Sandy Johnson's
b. Denial misled the plaintiff which lead to the statute of limitation run out
Plaintiff thought the defendant were denying negligence
c. The same insurer made this case easier
d. Affirmative is waived if not stated in the answer
3. Reply: usually answer in the end of complaint unless there is counter claim
4. Amendment
a. Amendment at later process of the trial is unfair to defendant because
defendant prepare the case based on the original complaint
The later it is, the more prejudice towards the defendant
ii. Must balance the undue prejudice with other side
b. Flexibility in amendment and no prejudice to opposing party
Premised on the idea of notice pleading
ii. How far along the litigation process
c. Historically, initial pleading is the first draft, it is subjected to change
before Twombly and Iqbal
Statute of limitation relation with Amendment
1. The more time goes by, the evidence value drop
2. It provide repose for the defendant
d. Beeck v. Aquaslide "N" Dive Corp.
Statute of limitation is the problem in this case
e. Moore v. Baker
Relation back: the complaint filed--> statute of limitation runs out--->
new complaint with new claim--> allow if the old and new claim are
sufficiently related
ii. Plaintiff didnt seek amendment during discovery
1. Less procedural, it seems like more desperation
iii. Plaintiff's first claim focused on the informed consent while second
focused on negligence

1. Informed consent does not include negligence

2. First claim broad, second claim narrow
f. Bonerb v. Richard J. Caron Foundation
First claim is negligence, second is malpractice, negligent includes
ii. First claim is narrow, second is broad