Civ Pro II

Question 0

Choice of Law - Paul v. National Life

Answer 0

Ct. does not discard rule of lex loci delicti (the law of the place of the wrong) but states that legal reciprocity does not require the application of a foreign state’s laws when they contravene the public policy of a foreign state.

Here, forum state never had guest passenger statutes and to apply another state’s statute in the forum state would be against public policy.

Question 1

Choice of Law

Answer 1

Focuses on how a court deals with a multijurisdictional dispute and which laws will apply. Mostly between states but could be between nations.

Sup. Ct. has held that it would violate the US Constitution for a state to apply its own law to a case that has no significant connection with that state.

Forum state will borrow the substantive law of the applicable state but apply its own procedural law. Most states consider statute of limitations procedural.

Question 2

Erie Doctrine

Answer 2

Federal Courts sitting in diversity must apply state substantive law and federal procedural law. Under the Erie Doctrine, Statutes of Limitations are considered substantive.

Two aims of the Erie Doctrine:

1. To discourage litigants from forum shopping
2. To avoid inequitable administration of the law.

Is the federal law at issue (a) valid, and (b) does it truly govern the dispute at hand? If so, it must be applied pursuant to the Supremacy Clause.

Question 3

Choice of Law Approaches

Answer 3

1. Restatement Center of Gravity Approach - criticized for its indeterminate language and lack of concrete guidelines.
2. Choice-Influencing Considerations Approach - 5 considerations
   
   1. Predictability of results
   2. Maintenance of interstate or international order
   3. Simplification of judicial task
   4. Advancement of the forum’s governmental interest
   5. Application of the better rule of law
3. Lex Loci Delicti - The law of the place of the wrong

Question 4

Swift v Tyson

Answer 4

Stated that federal courts did not have to follow state common law.

Question 5

Pleading

Answer 5

The process by which the litigants advise each other and the court of the claims and defenses they intend to present at trial.

Question 6

Rule 10

Answer 6

Sets out a certain basic form that all pleadings must follow.

10(a) - requires a caption setting out the name of the court, the title of the action (P v. D), nature of the pleading (complaint, answer, reply), and the file number. All parties must be named in the complaint but subsequent pleadings can refer to P et. al. v D et. al.

10(b) - requires that the paragraphs be numbered and that the pleader should limit each paragraph “as far as practicable to a single set of circumstances.” Also requires that different claims be stated in separate “counts” or “claims for relief” when they arise from different underlying transactions or occurrences. Most attnys treat each separately regardless for convenience.

Question 7

Rule 17(a)

Answer 7

Rule 17(a) - requires that all actions be prosecuted in the name of the real party in interest. i.e. the person who will actually benefit from any judgment to the Plaintiff.

This rule directly affects how a party drafts its complaint.

Failure to name the real party in interest is rarely fatal to a case. The ct. will usually grant leave to amend. The Rule explicitly states that a case will not be dismissed for failing to name the real party in interest until the Plaintiff has been given a reasonable time to join or substitute the real party in interest, or have the real party in interest ratify the claim.

Exceptions - when the injured party can’t bring the claim

Question 8

Rule (8)(a)

Answer 8

(a) Claim for Relief - a pleading that states a claim for relief must contain:
1. a short and plain stmt 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 stmt of the claim showing that the pleader is entitled to relief
3. a demand for the relief sought, which may include relief in the alternative or different types of relief. (can be called a prayer for relief)

• *Applies to all claim for relief including counterclaims, cross claims, and claims by and against third party defendants.
• *Most of the disputes involving 8(a) involve the second criterion, a short and plain stmt. of the claim.

Question 9

Heightened Pleading Standards

Answer 9

While “notice pleading” standards of Rule 8(a) apply to the vast majority of claims filed with the federal ct., in a few situations, a party is required to plead a claim with great specificity.

Question 10

Rule 9(b)

Answer 10

Heightened Pleading Standards: Fraud or Mistake
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

Bledsoe v Community Health - requires the time, place, and content of the alleged misrepresentation on which the Plaintiff relied; the fraudulent scheme and intent

Question 11

Twombly

Answer 11

Under the general pleading standard of 8(a)(2), a P’s obligation to provide the grounds of his entitlement to relief requires more than label and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

The court does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.

Question 12

Rule 9(g)

Answer 12

Special Damages - If an item of special damage is claimed, it must be specifically stated. (Part of the stmt of the claim itself)

Special damages are not the necessary consequence of the D’s conduct, but stem from the particular circumstances of the case. (Browning v Clinton)
Special damages are any injury that would not be expected to flow from the underlying event.

Failure to include special damages precludes P from introducing evidence of that injury at trial, however, courts may allow the Plaintiff to amend.

Question 13

Rule 9(c)

Answer 13

Conditions Precedent - In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.

Question 14

Two basic forms that a 12(b)(6) challenge can take

Answer 14

Two basic forms that a 12(b)(6) challenge can take:

1. the pleading being challenged may be missing some key language (not provided enough detail to satisfy the plausibility standard)
2. the pleading may contain ample facts, but those facts do not state a claim recognized at law

Question 15

Rule 12(b)

Answer 15

How to present defenses - these may be asserted by motion

1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insufficient Process
5. Insufficient Service of Process
6. Failure to state a claim upon which relief can be granted
7. Failure to join a party under Rule 19.

Question 16

Rule 12(c)

Answer 16

Motion for Judgment on the Pleadings

After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.

Question 17

Rule 12(e)

Answer 17

Motion for a More Definitive Statement

A party may move for a more definitive stmt of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.

Must be made prior to the responsive pleading and must point out the defects complained of and details desired.

If granted, P has 14 days to amend.

Question 18

Rule 12(f)

Answer 18

Motion to Strike

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

1. on its own; or
2. on motion made by a party either before responding to the pleading or, if a response is not allowed, w/in 21 days after being served with the pleading.

Question 19

Rule 12(h)

Answer 19

Waiving and Preserving Certain Defenses

12(h)(1) - A party waives any defense listed under 12(b)(2) - (5) by:
A - omitting it from a motion in the circumstances described in rule 12(g)(2)
B - Failing to either:
i. Make it by motion under this rule
ii. include it in a responsive pleading or in an amendment allowed by rule 15(a)(1)
12(h)(2) - Failure to state a claim upon which relief can be granted, to join a person under rule 19, or to state a legal defense to a claim may be raised:
A - in any pleading allowed or ordered under rule 7(a)
B - by a motion under rule 12(c)
C - at trial
12(h)(3) - SMJ issue court must dismiss

Question 20

Rule 12(g)

Answer 20

Joining Motions

(1) - Right to Join - A motion under this rule may be joined with any other motion allowed by this rule
(2) - Limitation on Further Motions - Except as provided in 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

Question 21

Rule 7

Answer 21

Pleadings Allowed; Form of Motions and Other Papers

(a) Pleadings. Only these pleadings are allowed
1. complaint
2. answer to a complaint
3. answer to a counterclaim designated as a counterclaim
4. answer to a cross claim
5. a third party complaint
6. answer to a third party complaint
7. if the court orders one, a reply to an answer

(b) Motions and other papers
1. In General - A request for a court order must be made by a motion. The motion must:
a. be in writing unless made during a trial or hearing
b. state w/ particularity the grounds for seeking the order; and
c. state the relief sought
2. Form - The rules governing captions and other matters of form in pleadings apply to motions and other papers

Question 22

Rule 8(b)(1)

Answer 22

(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

Question 23

Rule 8(b)(2) - (6)

Answer 23

(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 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 (qualified denial).
(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 info sufficient to form a belief about the truth of an allegation must so state, and the stmt 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.

Also, at common law, “negative pregnant” - example, I did not stab him with knife (indicates he did stab him with something…)

Question 24

Rule 8(c)

Answer 24

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; contrib neg; duress; estoppel; SOF; illegality; Failure of Consideration; laches; license; pmt; statute of limitations; waiver;, etc.

Court will consider 3 factors when determining if a defense is affirmative:

1. burden of proof (if D bears burden of proof, it is an affirmative defense)
2. whether the defense simply controverts the P’s proof or instead “avoids” P’s claim (if yes, then affirmative)
3. consider the need for notice of the defense to avoid surprise and undue prejudice to the Plaintiff

Question 25

Purpose of Rule 11

Answer 25

1. Establishes the standards for attnys and parties who file pleadings, motions, or other docs in court
2. Regulates the situations in which the court may impose sanctions for rule violations.

Question 26

Rule 11

Answer 26

(a) Signature
(b) Representations to the Ct
(c) Sanctions
1. In General
2. Motion for Sanctions
3. On the Court’s Initiative
4. Nature of a Sanction
5. Limitations on Monetary Sanctions
6. Req’s for an order
(d) Inapplicability to Discovery

Question 27

Duty of Candor

Answer 27

Litigants are subject to sanctions for advocating a position after it is no longer tenable. The rule protects litigants against sanctions if they withdraw or correct contentions after being notified about a potential violation.

Applies only to assertions in papers filed w/ the court but does not cover matters arising for the first time during oral presentations to the court when an attny may make a stmt that would not have been made had there been more time for research and thought. A litigant’s obligations regarding contents of filed papers include continuing to advocate positions contained in the pleadings and motions after learning that the positions are no longer meritorious.

Question 28

Safe Harbor Provision

Answer 28

Safe Harbor Provision - A motion for sanctions is not to be filed with the ct until at least 21 days after the motion is served on the offending person. During that period, if the violation is corrected, the motion should not be filed with the court.

A court can act on its own initiative, but only through a show cause order, thereby providing the person with notice and opportunity to be heard.

Question 29

Writings exempt from Rule 11

Answer 29

Rule 11 is explicitly inapplicable to discovery and disclosure requests, responses, and objections and motions under the discovery provisions in Rules 26-37.

Question 30

What is the 2 part test applied by most federal courts, including Mattel case, to determine whether a complaint is subject to sanctions under Rule 11?

Answer 30

1. Whether the complaint is legally or factually baseless from an objective perspective, and
2. Whether the attorney has conducted a reasonable and competent inquiry before signing and filing it.