A. What is Civil Procedure? Civil procedure is about the rules that govern the exercise of state power through civil lawsuits.

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1 OVERVIEW I. Introduction to Civil Procedure A. What is Civil Procedure? Civil procedure is about the rules that govern the exercise of state power through civil lawsuits. B. The 2007 Rewriting of the Federal Rules of Civil Procedure These revisions were intended to be changes in name only. There was no intent to change the substance of rule. o So keep in mind that the cited rules may look different in cases decided before C. Federal Courts Jurisdiction and Venue Clarification Act of 2011 Changed Title 28 of U.S.C. [The casebook was already published when this act was signed in January 2012, so you will not see the changes reflected in any of the assigned reading]. II. The Anatomy of Claims and Affirmative Defenses A. Conditional Imperatives Every rule of substantive law can be put in the form of a conditional imperative (but obviously not every conditional imperative states a valid rule of substantive law). o Litigators turn these statements into claims and defenses.! Valid claim: A set of facts that gives rise to a claim for relief in the (federal) courts. o Example: Contracts! The law of contracts, at least in simplified form, can be put in terms of the following conditional imperative: If two persons make an agreement that is definite in its terms, and if by the terms of the agreement each person is to perform a stated service valuable to the other, and if one of the persons fails to perform within the time and in the manner agreed upon, then defendant is liable, unless [some other things are true]. o Example: Not every conditional imperative statement expresses a valid rule of substantive law.! If my significant other is a first-year law student, and if first-year professors are assigning an unreasonable amount of work, and if that workload is interfering with our relationship, then the law school is liable in damages. B. Defining Claim and Affirmative Defense The if statements of a conditional imperative are the elements of the claim. The unless statements of a conditional imperative are affirmative defenses to the claim.! 1!

2 III. Determining the Validity of Claims and Affirmative Defenses You can test the validity of a claim in two ways: o Does the claim ( if statement) accurately state a rule of substantive law? o Do the actual facts fit the conditional imperative? If the answer to both questions is yes, then the claim is valid unless the defendant also has a valid affirmative defense. o Only one of the unless clauses needs to be valid to provide an affirmative defense. IV. Burdens A. Introduction There are 3 different burdens: o The Burden of Pleading o The Burden of Production o The Burden of Persuasion (or Risk of Non-persuasion)! Sometimes Production and Persuasion are together referred to as the Burden of Proof Theoretically, plaintiffs could be required to prove every element, or a defendant could be required to refute every element. Burdens may differ or shift at different stages in the litigation. o Usually all three burdens fall on the same party. B. The Burden of Pleading If the plaintiff has the responsibility of pleading, he must do so in the complaint. If the defendant has the burden of proving a particular element, he or she must do so in the answer. o Failure to do so may lead to dismissal of the lawsuit (plaintiff), or one less issue to litigate (defendant). Pleadings may be amended, and if so, can be one way of avoiding the consequences of failure to plead an issue in the complaint or the answer. o Federal rules are fairly lenient when it comes to allowing amendments to pleadings. Hypo: Assume a case where the plaintiff has the burden of pleading (1) negligence, (2) causation, (3) injury, but the defendant has the obligation of pleading contributory negligence. Plaintiff alleges the following in his complaint: (a) Plaintiff and defendant had a car accident, and (b) the car accident proximately caused injury to the plaintiff. o Negligence isn t stated in the complaint at all. So defendant can file a motion to dismiss for failure to state a claim (12(b)(6) motion). C. The Burden of Production Simply put, the burden of production answers the question of who loses? if no evidence is produced with regard to a particular element. Judge s job to decide whether the burden has been met. o Monroe case provides an excellent illustration of this concept.! 2!

3 o A party may also fail to meet the burden of production if they produce evidence, but that evidence is insufficient to satisfy the standard. A party has met the burden of production only if they have produced enough evidence to allow a reasonable jury to find for it. Otherwise the court can grant judgment as a matter of law. D. The Burden of Persuasion (or Risk of Non-persuasion) The question of whether this burden has been met is determined by a jury. E. Standards of Proof There are three possible standards of proof, depending on the type of case the standard is being applied to. o Preponderance of the evidence (typical for civil cases)! This means Is it more likely than not that x is true? If, for example, a jury determines that it is not more likely than not, or that the likelihood is the same, the party with the burden of persuasion has not met that burden. o Beyond a reasonable doubt (criminal cases) o Clear and convincing evidence (sort of like an intermediate standard) V. Allocating Burdens- An Introduction Hypo: With respect to each statute, who bears the burden on the question of the plaintiff s negligence? o Statute 1: Persons shall be liable for injuries to others caused by failure to take reasonable care; provided that no person shall be liable if the plaintiff s own negligence was the primary cause of the injury.! Burden on defendant?! First part gives the right; Second part provides the exception. o Statute 2: A person who is not himself negligent but who is injured by the negligence of another, has a cause of action against the injurer.! Burden on plaintiff? CLAIMS AND DEFENSES I. Introduction- Gomez v. Toledo A Gomez interprets/construes Sec. 1 of the Civil Rights Act of 1871 (became 1983 of US Code after amended) provides a statutory cause of action against state and federal officials for violations of constitutional rights. o Actual language of statute is provided in footnote 6 on p o A claim under 1983 involves two obvious elements (allocated to plaintiff):! Deprivation of a federal right! Under color of state law! 3!

4 ! When the official has acted in bad faith. B. Meaning of Qualified Immunity At the time Gomez was decided, an official would be deemed to have acted in bath faith if: o He knew or reasonably should have known the action would violate a federal right, or o He took the action with malicious intent to cause deprivation of a federal right or other injury. Question in Gomez is whether the third element (bad faith) should be allocated to plaintiff as an element of his claim. C. Allocating the Elements Relevant to the Claim The elements material to a 1983 claim can be simplified for our purposes as follows: o Deprivation of a federal right o Under color of state law o Bad faith (or absence of bad faith) D. Case Brief Notes/Summary Background/Overview: o Note: [p. 92 in FRCP] Can only file a 12(b)(6) before your answer. Toledo should have filed a 12(c) motion instead, because he had already answered.! Failure to state a claim is what is known as a favored defense (12(h)(2)). o Because the motion in this case has to do with the burden of pleading and not the burden of production, we assume for now that all the allegations are true. Procedural History: o The general rule in federal court is that you can appeal only after a final judgment has been entered against you.! By appealing, rather than alleging bad faith, the case is over in case of a loss (why Woolley says this is a gutsy move ) o Keep in mind that the burdens of pleading, production, and persuasion are all distinct. However, they all typically fall on the same party (though obviously not always the case). o Bad faith language is not included at all in the actual text of The element of bad faith was something the courts read into the language. Majority Opinion: o Majority concluded that good faith was an affirmative defense that must be pleaded by the defendant. o Reasoning:! Language of 1983 (basically bogus)! Precedent! Nature of the qualified immunity defense! Contrary to precedent and established practice in analogous areas of the law Last three reasons provide some support, but hardly compelling.! 4!

5 o If 1983 is based on the common law, then good faith or bad faith would be implied. Therefore there is no basis for suggesting that it s absence in the language of the statute means it should not be considered an element.! The argument is that in this case, looking primarily at linguistic cues is improper. Instead, a historical argument would be more appropriate. Underlined part on p as remedial legislation. This indicates that the Court is concerned with public policy, and in a close case, the scale should be tilted towards the plaintiff. One way to slightly tilt the playing field is to put the good faith/bad faith burden on the defendant. o Rehnquist is trying to limit the scope of the decision to fairness considerations. II. Pleading Claims and Defenses A. Pleadings and Motions- An Introduction Pleadings: Written statements of allegations and denials that frame the dispute between the parties. o FRCP p. 80 Rule 7(a) Motions: Requests for a court order o FRCP p. 80 Rule 7(b) Rule 11: Whenever you make a motion, pleading, etc., you are making certain representations to the court. 11(b) requires the moving party to make a reasonable inquiry- no wild allegations or frivolous claims. o Essentially, this rule says there are limits on the types of arguments you can make. B. The Complaint- An Introduction Conley v. Gibson o [T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff s claim is and the grounds on which it rests.! Rule 8: A short and plain statement showing the pleader is entitled to relief. o [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 that would entitle him to relief.! Taken literally, this language allows the court to dismiss a case because they do not see a plausible claim. Federal courts almost never read Conley this way, even before Twombly. A literal reading of Conley seems to be in conflict with rule 8(a)(2). C. Factual Specificity- An Introduction CB p. 625: Form 9- old version; Form 11- new version o Rule 84, p. 310! 5!

6 Those who believe pleadings should be general typically don t believe that a potentially legitimate case should be thrown out before having a chance to undergo discovery. o This could prevent exploration of a potentially meritorious claim. On the other hand, requiring a higher degree of specificity can be an inexpensive way of dismissing a frivolous or baseless claim. o However, it may make sense to insist on greater specificity as the claim becomes more complex. D. Bell Atlantic Corp. v. Twombly Background/History o Congress imposed legal obligations on the major corporations in this industry to facilitate competition and market entry. o Allegations on p Essentially, violation of 1 of Sherman Antitrust Act. o Proving an Agreement! At the burden of production and persuasion stages, a plaintiff can prove an agreement using direct or indirect evidence. Direct evidence is eyewitness testimony about the fact in question. But direct evidence is not the only way to prove something. o Parallel Conduct! Antitrust law is clear that evidence of parallel conduct- standing alonedoes not allow a fact-finder to infer an agreement. Sherman Antitrust Act o Plaintiff can utilize either direct or indirect evidence.! Direct: Eyewitness testimony! Indirect: Also known as circumstantial evidence. I.e. Defendant s conduct in the marketplace as evidence of agreement (this type of evidence allows the fact-finder to infer). Majority Opinion o Evidence of parallel conduct, standing alone, does not allow the fact-finder to infer agreement.! Example: Both Professor Woolley and Professor Forbath wearing jeans and a button-down to work one day- no. Both professors wearing society shirts on the same day all semester- yes. o Court said the 12(b)(6) Motion to Dismiss for Failure to State a Claim was properly granted, because there was insufficient evidence to show that the pleader was entitled to relief, even if the allegations were taken as true.! Allegations were dismissed on the ground that they were legal conclusions. o Majority clearly feels that the no set of facts rule of Conley is too lenient a reading of Rule 8(a). o Footnote 18: Proof of parallel conduct is required only if the plaintiff proves agreement through circumstantial evidence. Proof of parallel conduct is not required if the plaintiff proves agreement through direct evidence. Dissent- An Argument for the Substantive Sufficiency of the Complaint o Parallel conduct that restrains competition is not illegal without proof of an agreement.! 6!

7 o There is no disagreement in this case between the majority and the dissent on issues of substantive law.! Third paragraph from the bottom on p. 627! Different takes of the majority and the dissent on whether the pleading is sufficient seem to turn on the role of pleading in a litigation system. o As a historical matter, the dissent is right. o If we disregard the so-called conclusory statements of the pleading, the defendants claim clearly entitles them to relief.! The dissent in this case would affirm the first part of Conley v. Gibson. This is a very generous interpretation of Conley (#3 first sentence on p. 628). o Key change in Twombly is that the Court is saying the conclusory elements of a claim should be disregarded. Majority v. Dissent- The Role of Pleading in a Litigation System o Justice Stevens: Fears of the burdens of litigation does not justify factual conclusions supported only by lawyer s arguments rather than sworn denials or admissible evidence We have observed that in antitrust cases, where the proof is largely in the hands of the alleged conspirators, dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly. E. Ashcroft v. Iqbal and the Plausibility Standard The Court makes clear in this case something that was unclear after Twombly. o The Court said that the rule in Twombly (8(a)(2)) was not limited to antitrust actions and extremely complex cases.! Only need a claim that states a plausible basis for relief. However, even after Iqbal, what is required under the plausible basis standard is unclear. o Should apply the same standards as they would to a summary judgment motion? Both of these cases involve an effort to equate the burden of pleading with the burden of production. F. The Impact of Twiqbal Applied strictly, both cases have the ability to severely restrict access to the federal courts. Efforts to get Congress to overturn them have thus far been unsuccessful. o There has been a great deal of uncertainty regarding the interpretation of these cases. Rule 84 is binding on the courts, and says the forms are sufficient. o So the court s ruling makes the pleading standard stricter than the forms, which is inconsistent with Rule 84. But not all complaints have a form. States are not bound by Twombly and Iqbal, but most have rules modeled on the Federal Rules of Civil Procedure (FRCP). o Some courts have followed the holdings of these cases, and some have rejected. So effects of the opinion are not necessarily limited to federal courts.! Courts of Appeal usually rely on the idea that these cases are context specific to try and get around applying the holding of these cases.! 7!

8 G. Responding to the Complaint- Introduction The defendant must respond to a complaint in a timely way, or potentially suffer the consequences of a default judgment. o Two options to respond:! Filing a pre-answer motion! Answer If a defendant needs discovery to support a 12(b) claim, it often makes sense to wait instead of filing a pre-answer motion. o Remember that all allegations in a 12(b)(6) motion are taken as true, so there is no evidence. H. Responding to the Complaint- Rule 12 Defenses Essentially, you can only make a single 12(b) motion. o What vehicles can you use to assert one of the 12(b) defenses? A pleading is intended to frame a dispute, whereas a motion is asking the court to do something. Hypotheticals o 12(h)(3) is an exception to the rule that you can only bring one 12(b) motion o dismiss.! 12(h)(3): If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. o A motion (12(b)) asserting any of these defenses must be made before pleading if a responsive pleading is allowed.! Essentially, a 12(b)(1) motion is really the only one where anything goes. I. Responding to the Complaint- The Answer Overview o The answer will contain a response to the plaintiff s claim, and any counter-claim the defendant wishes to assert.! The only real difference between a claim and a counter-claim is who sues first. Counterclaims o Two types:! Permissive! Compulsory: When it arises out of the same transaction or occurrence as the original party s claim. If a compulsory counter-claim is not asserted in the answer, it is considered waived. Defenses o Almost always included in the answer. o Two types:! 12(b)! Affirmative Those elements relevant to a claim for which the defendant has the burden of pleading. o E.g. Yes, but or Even if statements. Affirmative Defenses v. Counterclaims! 8!

9 o Affirmative defenses are asserted to defeat the plaintiff s claim. o Counter-claims are asserted to seek relief from the plaintiff s claim.! E.g. contributory negligence. Admissions and Denials o Denials can be characterized as negative defenses, but this is a term very rarely used. o Admissions and denials must be included in the answer.! General denials: Put every issue in complaint at issue. General denials are usually not permitted ((b)(3)). Only allowed if all the requirements of Rule 11 are met, which will be an exceedingly rare situation. E.g. Not guilty plea in a criminal proceeding is essentially a general denial that is not allowed in civil procedure. J. Fuentes v. Tucker This case is about the effect of admissions and denials. Because it is a California case, it is not modeled on the FRCP. However, it is identical to the FRCP on this point. Facts o Defendant amended his answer on the day f trial to admit liability for the death of the teenagers and for the proximate damage caused by the accident. Why? Wanted to avoid having the jury hear all the damning evidence. Rules o Under California law, it is irrelevant how and why the accident occurred in regards to the determination of damages (but obviously this information is still likely to affect the jury in terms of leading to an award for a higher amount of money).! Defendant in this case argued that by admitting these details of the accident into evidence, the Court let in evidence that was immaterial to the issue of the case (the determination of damages). Holding o Trial court said this was harmless error (Woolley says this is probably a dubious decision).! P. 32: One of the functions of pleadings ; It follows, therefore K. Responding to the Answer- Rule 12(f) Motion to Strike and Replying to Affirmative Defenses Used for an insufficient defense. A 12(f) Motion to Strike is to an affirmative defense what a 12(b)(6) motion is to a claim. o Assumes that there is a factual basis for the defense (that can protect the defendant from liability). o Hypo: The fact that you did not intend to harm the plaintiff is not a defense to a negligence claim. Therefore it is subject to a 12(f) motion because the legal sufficiency is not met. A defendant is not required to admit or deny an affirmative defense by responding. Default is to assume the defendant denies the claim/allegation. o Rule 8(b)(6): If a responsive pleading is not required, an allegation is considered denied or avoided (FRCP try to limit the number of these pleadings).! 9!

10 o Courts rarely order a reply. Three kinds of defenses o 12(b)(1)-(7) defenses o Negative defenses, or simple denials of allegations o Affirmative defenses (i.e. Even if, not liable because. ) L. Answering a Counterclaim Plaintiff is required to respond to the defendant s counterclaim in her answer (7(a)(2) o Just like a defendant is required to answer a plaintiff s complaint- same rules apply. Similarly, you can also file a pre-answer motion instead of an answer. o (What is now called an answer used to be called a reply). M. Pleading Practice- A Summary Claim (π) Complaint (π) Rule 12 pre-answer motion (Δ) (assuming denied or if Δ decides not to file R12 pre-answer motion) Answer (Δ) 12(f) Motion to Strike (π) Counterclaim (Δ) Answer (Δ) Rule 12 pre-answer motion (π) (if unsuccessful or does not file) Answer to Claim (π) 12(f) Motion to Strike (Δ) [Rule 12(e) motion for more definite statement, if court orders a reply] (π) [Reply, if ordered by the court] (π) Remember that it is exceedingly rare for the court to order a reply. III. Substantiality of Claims and Defenses A. Pleadings v. Proof Pleadings are essentially just allegations, whereas a trial allows the case to progress beyond allegations and towards the production of proof. B. The Burdens of Production and Persuasion The judge determines or evaluates whether the burden of production has been met. o The burden of production is essentially a jury-control device.! It ensures that a party will not prevail on an element where it has not met the burden of production. A party must satisfy the burden of production before he can get to persuasion.! 10!

11 o The burden of production can be met in federal practice through a motion for judgment as a matter of law (previously known as a motion for directed verdict or judgment n.o.v.)! A party may want to seek a ruling on whether the other party will be able to meet their burden of production before trial. This assessment can be made by filing a motion for summary judgment. The jury determines whether the burden of persuasion has been met. C. The Rules of Evidence Admissibility o If evidence is inadmissible, it should be excluded if an objection is made. The admissibility of evidence is governed by the Federal Rules of Evidence. o Evidence is presented in two basic forms:! Witness testimony! Documents Personal Knowledge (FRE 602) o Before allowing a witness to testify, the attorney must lay a foundation, meaning he must first establish that the witness has actual personal knowledge of what he is about to testify to. Authentication (FRE 901(a) and (b)(1)) o Documents must be authenticated in order to be introduced into evidence at trial.! The most common way to do this is through testimony that an item is what it claims to be (from the person who created it, etc.) Relevance (FRE 401) o Documents and testimony are only admissible if they are relevant.! These evidentiary items are deemed relevant if they have a tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence. Essentially, the fact must be of consequence in determining actions that took place. o However, remember that just because evidence is relevant does not mean it s admissible. Direct vs. Indirect (Circumstantial) Evidence o Hypo: The color of a barn at noon on October 1 st.! If a witness says it was blue at 11am, that would be indirect or circumstantial evidence, because the jury would have to infer that the barn was not re-painted in that time. o Direct evidence does not require the jury to make any inferences at all (though obviously the jury can still decide to doubt the witness credibility or not give credence to what they say). Hearsay (FRE 801(c)) o Hearsay means a statement that:! The declarant does not make while testifying at the current trial or hearing; and! A party offers in evidence to prove the truth of the matter asserted in the statement.! 11!

12 o Exceptions to the Hearsay Rule (FRE 801(d)(2)(A) and (D))! The admissions of a party opponent are the most important exception! Technically, Federal Rule 801 treats admissions of a party opponent as not hearsay rather than as an exception to the hearsay rule. o Essentially, a part to litigation can introduce any statement by the opposing party without running afoul of the hearsay rule.! [Example on p. 50 of supp. material] If a nurse s statements are being offered to assert the truth of a matter, then they are hearsay. But if she is uttering the statements in the normal course of carrying out her job, then they may fall into an exception. o The Multiple Hearsay Problem and Hearsay v. Personal Knowledge! Hypo: Woolley writing in his diary that Ms. Wiley told him she was going 40 mph right before the accident. Why is this multiple hearsay? Because the admissibility of two separate statements must be considered- 1) Ms. Wiley s statement, and 2) Woolley s statement. o In this case, Prof. Woolley himself would have to be called to the stand, not his diary.! Remember that just because you have personal knowledge of a matter does not mean it s not hearsay. Impeachment o Means casting doubt on the witness credibility.! Attorneys may ask questions designed to elicit bias, undermine credibility, etc. A witness can also be impeached by contradiction. Meaning opposing counsel calls another witness to the stand that contradicts the other s testimony. D. Summary Judgment The Standard- An Introduction (Rule 56(a), p nd sentence) o A moving party is entitled to summary judgment, if:! (a) There is no genuine dispute as to any material fact, and! (b) The moving party is entitled to judgment as a matter of law. o Put another way, a moving party is entitled to summary judgment only if a reasonable jury would be compelled to find for the moving party.! A moving party is not entitled to summary judgment if a reasonable jury could find for either the plaintiff or the defendant. o Therefore, a nonmoving party will defeat a summary judgment motion if a reasonable jury could find for the nonmoving party. The Standard- What is a Material Fact? o For purposes of summary judgment, a dispute of fact is material only if the matter being decided is essential for one party to prevail.! 12!