Civil Procedure II

Pleadings and response to pleadings.

I. FCR RULE 8a-e covers all pleadings.

General Rules is covered under 8d

Rule 9: Covers Fraud & mistake and Special damages which require more facts.

Rule 10: Lays out what the pleading should look like when it is written up for the court.

Rule 11:

Responding to pleadings: Objections and defenses.

Rule 12:

Filing a Pre-Answer motion

3 types – pre answer to dismiss, motion for more definite statement, motion to strike.

12 (b)(6) – Failure to state claim. The plaintiff has failed to state a claim that relief may
be granted. (Cannot understand claim provided in pleading to know what the issue is OR
it is obvious the pleading will lose in court).

12 (e) – When a respondent must respond but the claim is so vague or undefined that a
response cannot be given and isn’t needed.

12 (e) – Motion for 12 (e) must be filed BEFORE you counter plead.

12 (f) – Motion to strike: When portions may be stricken: (1) Pleaded junk – any
redundant, immaterial, impertinent, or scandalous matter, upon showing of prejudice, or
(2) Insufficient defenses – a motion to dismiss for the plaintiff.

Motion must be filed BEFORE responding to the pleading (or within 21 days if no
counterpleading is permitted.

Remedies:

Reminders Rule 12(g) and 12 (h)

1. No one is ever required to file a pre-answer motion (instead can always just file an
answer)
2. If litigant chooses to file a motion then..
3. They must include ALL Rule 12 defenses they have in that one motion, or risk
waiver!

Responding to the complaint

Rule 7 (a)

An answer must be filed within 21 days UNLESS service of process is waived then it
is 60 days. If served outside the country, you get 90 days.
If a pre-answer motion was filed, then within 14 days after
(i) Court denies motion.
(ii) Any court-ordered revised pleading is served.

Content of the “answer”.

Paragraphed responses made to each paragraph – Rule 8 (b) state in short and plain
terms its defenses to each claim asserted against it.

Admit or deny the averments against it by opposing party

Or lacking knowledge or information sufficient to form a belief as to the truth of an

allegation must so state, and the statement has the effect of denial.

Rule 8 (b) (6): Effect of failing to deny -If a responsive pleading is required, all
allegations are considered ADMITTED unless they are denied in that response.

PURPOSE OF THE “ANSWER”: Isolating those factual issues that are disputed.

Rule 8 (b) (3): General and specific denials

General denials – When you deny every paragraph as a group.

Specific denials – When you deny some paragraphs but admit others.

Rule 8 (b) (2)/(4): Partial denials

If part of a paragraph is true, you must admit that part and then deny what is untrue.

Affirmative defenses

Rule 8(c): Affirmative defenses

Amending pleadings:

Missed something
Defendant makes Rule 12 motion
Additional information
Response to a

Rule 15 (a): Amending before trial

Rule 15 (b): Amending during or after trial

Variance – Where the evidence elicited at trial establishes facts/claims that are
different from what was “short and plainly” stated in the original pleading.

Rule 15 (c): Relation Back – Marsh v. Coleman Company case

Relation back works when the Statute of limitations so provides; (2) when the new
claim arose out of the same conduct/transaction/occurrence as the original claim; or
(3) when the new party knew (or should have known) that the original pleading was a
lawsuit against him or her.

(3) example case - Schiavone v. Fortune 1986

TEST FOR AMENDING UNDER 15(c)

1. Satisfy Marsh test +

2. Within the post-filing service period: New party received notice + isn’t prejudiced
+ new party knew (or should have known) it was the target D, but for the naming
mistake.

Rule 15 (d): Supplemental Pleadings

Defined: Alleging conduct, transactions, or occurrences that happened after the

original pleadings were filed.

When: Must be made by motion and the court’s approval, and on “just” terms. (No
unilateral right to supplement!)

Responsive Pleadings: If permitted by the court, at a time set by the court.

* Ensuring Ethics in Pleadings –

* Character and fitness

* Professional Responsibility Rules

* 38 U.S.C. § 1927
 * Court’s Inherent Power

* Federal Rules of Civil Procedure P. 11

Rule 11 (c): Sanctions

 How made:

By an Opponent’s motion: (a) made separately from other filings, (b)

specifically describing violating conduct, and (c) providing 21-day “safe
harbor” period.

By the Judge’s Own Motion: an “OSC” (“Order-to-show-cause”) why

violation ought not be found.

Rector v. Approved Federal Savings Bank US Ct. App. 4th Circ. (2001)

 Limits on Sanctions:

Only what is sufficient to deter repetition of such conduct by offender or

others.

 PLEADINGS PURPOSE

Vehicle to
Narrow

JOINDER: PLEADINGS

When does Joinder occur?

Joinder generally occurs at the outset but can occur later in the trial.

FOUNDATIONAL SUPPORT FOR JOINDER

Real Party in Interest: Rule 17

Only a real party in interest may bring a lawsuit. This means that only the people affected
by the outcome can become party to the suit.
 This means that the people involved in the lawsuit must have a personal interest, either
through direct (injury, loss, etc.) or indirect (representative for someone who is incapable
of being there themselves such as medical exception) interest.
SUBROGATION – Swapping out a party who no longer has interest in the suit with a
new party that now has interest and seeks relief from the court.
STANDING – “Constitutional” Art. III. Of US Const. requires that claimants be seeking
redress for an injury that concrete, particularized, and imminent rather than conjectural or
hypothetical.
Statutory standing – Must be statute specific.

Fixing Joinder: Two ways to fix

1. If the “real party in interest” is missing from the suit NO DISMISSAL

2. What happens if a party is improperly joined or omitted from the suit?

The whole lawsuit is not dismissed, if the error can be remedied by adding or
dropping the mis joined party.

Goal is to fix, not dismiss, if possible.

Capacity: Ability of a party to sue or be sued. Rule 9 (a)

WHO IS SUEABLE?

Litigation capacity – A party’s legal ability to sue or be sued:

Determined by state law.

Individuals: the law of their domiciles

Business:

SUBSTITUTION: Can there be a replacement brought in? Rule 25 (a)

Substitutions allowed for:

 Death – 25(a) - If claim survives death, substitution permitted w/in 90 days of death
notice.

Incompetency – 25(b) - If claimant becomes incompetent, a representative may substitute

in for the incompetent party.

Transfer – Rule 25(c) – New owner may substitute in, OP original owner may continue.

Officials – Rule 25(d) – On death or departure from office, substitution to successor is

automatic.

FOUR STEP PROCESS FOR JOINDER

1. What goal is achieved by this joinder?

What is benefit, Who does it benefit?

2. Is this joinder proper under the procedural rules?

Are the FRC Rules satisfied?

3. Does personal jurisdiction + venue exist for this joinder?

Is there In Rem or In Personum

4. Does subject matter jurisdiction exist for this joinder?

Joinder of parties Test:

(1) Question of law or fact similar in claim to others

(2) Amount in question - $75,001

COUNTERCLAIM:

Fed. Rules 13(a), 13(b), and 13(c):

Compulsory counterclaims – Is one that has to be brought and if it is not brought then it
cannot be brought later. It becomes extinguished if not asserted.

1. It existed as of the time the party was served with the actual lawsuit.

2. Counterclaim must arise form the same occurrence as the original claim.

UNLESS:
 3. Requires an accessible joinder,
4. Claim is already pending somewhere else
5. Opponent’s claim is in rem (not in personum) and no other counterclaims is made.

CASES:

Dindo v. Whitney

Dindo is driving Whitney’s car and Dindo has an accident in part caused by Whitney’s
actions while he was driving. Whitney’s insurance company files against Dindo and
settles the claim /
Carteret Savings & Loan Assn. v. Jackson (1st Cir. 1987)

Permissive Counterclaims – A claim that can be brought now or may be held onto
and brought at a later date.

1. Did not exist out of same occurrence

2. Does not arise out of the same

EFFECTS OF COUNTERCLAIMS:

Common law – A counterclaim could only diminish Plaintiff’s recovery. No Affirmative relief.

Federal rule 13(c) – Not only may diminish the opponent’s claim; may also

INTERPLEADER

§ 1335. Interpleader
(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the
nature of interpleader filed by any person, firm, or corporation, association, or society having in
his or its custody or possession money or property of the value of $500 or more, or having issued
a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or
more, or providing for the delivery or payment or the loan of money or property of such amount
or value, or being under any obligation written or unwritten to the amount of $500 or more, if
(1) Two or more adverse claimants, of diverse citizenship as defined in subsection (a) or (d) of
section 1332 of this title [28 USCS § 1332], are claiming or may claim to be entitled to such
money or property, or to any one or more of the benefits arising by virtue of any note, bond,
certificate, policy or other instrument, or arising by virtue of any such obligation; and if
(2) the plaintiff has deposited such money or property or has paid the amount of or the loan or
other value of such instrument or the amount due under such obligation into the registry of the
court, there to abide the judgment of the court, or has given bond payable to the clerk of the court
in such amount and with such surety as the court or judge may deem proper, conditioned upon
the compliance by the plaintiff with the future order or judgment of the court with respect to the
subject matter of the controversy.
(b) Such an action may be entertained although the titles or claims of the conflicting claimants
do not have a common origin, or are not identical, but are adverse to and independent of one
another.

JOINDER OF NON RELATED PARTIES

STEP 1. USE RULE 20 PERMISSIVE PARTY JOINDER TO BRING THE PERSON INTO
THE SUIT.

STEP 2. USE RULE 24 – INTERVENTION TO

STEP 3.

STEP 4.

DISCOVERY

ADMISSIONS: RULE 36

1) SCOPE – The parties may serve a written request for admission the truth of any matter
within the following (1) facts, the application of law to fact, or opinions about either.
2) The genuineness of any described documents.

The Five rules:

1) Unjustified objections (Rule 36(a)(6): Court may order substantive answer.

2) Noncompliant Answers (Rule 36(a)(6): Court could deem them to be admitted.
3) Wrongful Refusal to Admit (Rule 37(c)(2): Court could order a fees-shift.
4) Effect of Admission (Rule 36(b): Conlusively established (but ONLY for this
trial)
5) Withdrawals/Amendments (Rule 36(b): Court can permit them, if no prejudice
results.

RULE 35 – PHYSICAL OR MENTAL EXAMINATION

Types: Physical or mental examination.

To Whom: A party, or one in custody/control of a party.

Limits: Only by consent or by court order.

Reports: Examinee can request it. But, by requesting, Examinee must make any

CASES:

Schlagenhauf v. Holder (1964)

Chaney v. Venture Transport, Inc., (2004)

Nyfield v. Virgin Islands Telephone Co.