Professional Documents
Culture Documents
Due Process
Due process refers to prior notice and an opportunity to be heard.
42 U.S.C. § 1983. gives a cause of action for constitutional wrongs or torts
if the gov’t under color of state law, deprives an individual of constitution rights, they are entitled to relief.
14th Amendment 14TH amendment protections of due process for all persons living in the United States from life, liberty, or property,
without due process of law.
A claim under 14TH amendment, requires government action, not private individuals.
FRCP
FRCP 7(a);(b);(c)
(a) Pleadings: Complaints (filed by plaintiff), answers (by defendant), and replies (discretionary by order of the court). Alleges something
and asks for relief.
(b) A motion is a prayer, or request to the court, asking for something.
(c) Modernization that abolishes demurrers and pleas in federal court.
FRCP 8(a);(e);(f)
(a) (1,2,3) facts, legal claims, and claim for relief, invocation of courts jurisdiction
(e) (1) simple, no formal language is needed
(f) hortatory phrase. Wiggle room allow opportunities to amend or fit claims.
Complaint Terminology:
1) Code pleading – Gillispie
a. “Ultimate facts”
2) Notice Pleading – FRCP are a liberalization of code-pleading.
a. Certain facts aren’t known until discovery at times.
b. Notice to defendant
c. Notice to court
d. Give some info to court to get the ball rolling
3) “face of the complaint”
“four corners of the complaint” – you can’t look beyond the four corners of the complaint – metaphor to mean that there are certain
challenges to plaintiffs complaint that should only be decided on what has been presented in suit.
“light most favorable to the plaintiff”
The court will look at the four corners of the complaint, and not beyond the four corners.
12(e) is only useful when a complaint is so unintelligible that a reply cannot be formulated pursuant to Rule 8.
It is disfavored for 12(e) to be used as a fishing expedition as predicate to 12(b)(6). But maybe not…maybe sometimes before some courts.
Rule 11 applies to the law firm, the party who signs, and the attorney who signs.
FRCP 11 Sanctions applies to everything except discovery.
FRCP 11(a) Signature
Promising by way of signature to comply with section 11(b).
28 U.S.C.A § 1927 to deter counsel, not parties, from intentional unnecessary delay.
Under Rule 11(c)(3) the court must explain why sanctions so its clear why.
11(c)(2)(a) – monetary sanctions may not be awarded against a represented party for a violation of subd. (b)(2). party should not be punished for
the sins of the lawyer wrt legal arguments.
RULE 9 (goal is to prevent in terrorum tactics to settle for fear of damage to reputation, costs, etc: purpose:
Three reasons for Rule 9:
1) notice,
2) injury to reputation
3) limiting in terrorem value of suit.
(a) we still live in the general notice pleading world of the Federal Rules, and 9 is the exception to the rule where there is a pleading standard.
(b) Fraud, Mistake, Condition of Mind requires particularity.
Should 9(b) be applied to other substantive areas of the law such as § 1983 claims? NO. Supreme Court says that 9(b) only includes fraud,
mistake, and conditions of the mind. Leatherman case.
What about Title VII employment discrimination cases? NO. Sweirkowitz, Rule 8, does apply to a McDonnall Douglas pleading requirements?
NO.
The only place where there must be particularity in pleading is fraud, and others described in 9(b). Otherwise, Rule 8 pleading standards are all that
is required.
12(g) consolidation of defenses – do some homework and include all 12(b) objections in bundle.
FRCP 55 Default
Difference between entry of default and entry of default: the entry of default is a preliminary step. Judgment of default is final.
Rule 55
(a) entry of default – by clerk.
(b) judgment of default
(1) by clerk: in routine formulaic situations. Sum certain. Easy to do.
(2) by court: not as easily determined
(c) – see 60(b) under certain circumstances, a default judgment can be set aside.
Affirmative Defenses FRCP 8(c) think about the function of an affirmative defense. Say statute of limitations. If the complaint is not brought by a
certain time, the court will not recognize the claim.
Defendant raises the defense affirmatively.
It says “Yes…BUT…” even if everything was true, this defense resolves the issue
If D fails to raise affirmative defenses, it is not available at trial.
If justice requires, there may be leave to amend to raise the affirmative defense.
Defendant’s Motions
1) “pre-answer” motions
2) failure to answer – default
3) Answer
a. admit, deny, or “without knowledge”
b. affirmative defenses == “yes, but…”
c. counterclaims – seeks remedy
The rules of rule 8 apply to counterclaim (cross complaint), and rule 12 motions can be filed.
The original plaintiff is the defendant to the counterclaim.
“Original defendant is in the posture of the plaintiff.”
d. voluntary dismissal (Rule 41(a)(1)(2))
41(a)(1) the first bite of the answer happens without consequences.
The “unless” part means the second bite of the apple may have consequences.
e. amendment (Rule 15)
15(b) amendments to conform to the evidence.
13(a) counterclaim compulsory arises from same transaction or occurrence. Unless the counterclaim is brought, the defendant loses right to
litigate it due to res judicata, and estoppel.
13(b) counterclaim permissive does not arise from same transaction or occurrence.
Transaction/Occurrence:
“Same evidence” test
“Logical Relation” test
1. Are the issues of fact and law raised by the claim and counterclaim largely the same?
2. would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim?
3. will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?
4. Is there any logical relationship between the claim and the counterclaim?
Reason to be in federal court: 1) The existence of a federal question, 2) diversity of citizenship. 3) if no diversity jurisdiction, then supplemental
jurisdiction might exist (n.3 pg. 210) if the claim arose from the same transaction, as a compulsory claim.
Rule 15: Amendments to pleadings:
Rule 15
(a) see generally David v. Crompton & Knowles –
- applies to all parties in lawsuit.
- liberally granted subject to some constraints (sloppy lawyering)
(b) amendments to conform to evidence (to which both parties agree)
(c) Relation back – Swartz (what happens when you filed the lawsuit before the statute of limitations has expired, and now, there is another
party that should be added. You are trying to get the date-stamp placed on new information.
(c)(1) if relation back is allowed under certain circumstances, etc.
(c)(2) relation back of claim
(c)(3) relation back of party
(d) supplemental pleadings – after-occurring events.
Joinder
Rule 17
Rule 17(a) – real party in interest. Lawsuits can only be brought by a real party in
interest.
“fictitious names” – “Doe’s
- as plaintiffs, the purpose is there are people whose names won’t be disclosed, but they are real parties in interest.
Rule 18(a) – joinder of claims
- Questions: what is rule designed to do? Who can use this rule and who can’t?
- allows the bundling together of as many claims possible
When you get a Rule 19 problem : do the whole problem!!! Do 19(a) and (b) analysis.
Argue in the alternative that 19(a) answer is yes, then do 19(b).
Starting on page 245, the analysis is how we should analyze Rule 19 on test.
19(a)(1) Complete relief: what is being asked for in the lawsuit?
If complete relief can be accorded without another party, 19(a)(1) answer is yes.
Answer is different with injunction than with money damages sometimes.
WHAT IF the court found the party is feasible??? See 19(b)
A judge may tell the plaintiff that they can seek only money damages even when they made a prayer for legal and equitable relief, because the
equitable relief requires the other party, but the money damages do not.
Can plaintiff go somewhere else as a forum?
Rule 14: Impleader
P Defendant (third party plaintiff) - - - TPD (third party defendant)
If TPD wants to add another, TPD is 4th party plaintiff and there is a 4th party defendant.
Defendant is in posture of plaintiff when making claim against TPD.