CivPro,LectureNotes,8882, Lecture notes for Civil procedure. Indiana University (IN)

CivPro,LectureNotes,8882, Lecture notes for Civil procedure. Indiana University (IN)

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Raising Jurisdictional and Related Challenges, Direct Attack, Collateral Attack, Pleadings and Judgments based on Pleadings, Voluntary Dismissal, Involuntary Dismissal, Amended Pleadings, Relation Back, Discovery, Deposi...
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Chapter 6: Raising Jurisdictional and Related Challenges Challenge Personal jurisdiction

• 1) Special appearance: allows a DF to appear in a forum for the sole purpose of contesting in personam jurisdiction

• May only raise the personam jurisdiction issue • If raise anything other then that then you have consented to

jurisdiction o Except a notice for removal which does not count as

consent • 2) Rule 12 (Modern way)

o 12(b) no defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion

§ 2 ways to do this ú Pre-Answer Motion

• Needs to filed before the answer • 12(b)(1-7)-Know all of them • 12(b)(6)-failure to state a claim upon

which relief can be granted ú Responsive Pleading –Answer

• Must do all defenses by the answer Example:

• Motion raised for lack of PJ (12(b)(2) o This is denied. Can you then file again for lack of venue

(12(b)(3) o They can be filed but it would be in one motion o Could file 12(b)(1-7) all at the same time.

§ If you do not do it in the first motion you cannot do it again 12(g)(2)


• Any defense listed in rule 12(b)(2-5) (pj, venue, service- insufficient process and insufficient service) are waived if not brought up in pre-answer motion

• Must raise them in pre-answer motion but if you do not use a pre-answer motion then in a responsive pleading

If doing a case and venue is not proper then personal jurisdiction could be an issue and if personal jurisdiction comes up then venue might be a problem Rule 12(h)(2)

• May raise them anytime up until trial. After trial starts they are waived.

o Include 12(b)(6) and 12(b)(7) 12(b)()1) can be raised anytime Direct Attack

• Could make an appearance in Hawaii and object personal jurisdiction

• 12(b)-raise what the problem is • If they find jurisdiction you have to stay • You can still argue on the merits • You can appeal though and bring up jurisdiction again.

Collateral Attack

• After a default judgment o DF didn’t show up-failure to answer the complaint

• Wait for the PL to try to enforce the judgment • Enforcement

o Void because lacked jurisdiction-personal jurisdiction • If they find the court did have PJ then the default judgment

will still be enforced. • You cannot contest the merits of the PL’s claim-You waived it

by doing the collateral attack. • There is a question on whether you can use collateral attack

on a default judgment where the sole issue is lack of subject matter jurisdiction

Baldwin v. Iowa State Traveling Men’s Association pg 278 Facts:

• Court holds that there was PJ and they have 30 days to answer

• They don’t answer so default judgment • Iowa Enforcement action

o 1st court lacked personal jurisdiction o Trying to do a collateral attack after they already

showed up and did a direct attack. • They could still appeal the case and still contest PJ

Need to all of Rule 12 except 12 (c)(d) Chapter 7: Pleadings and Judgments based on Pleadings

Field Code “Code pleading” • PL make a “a statement of facts constituting a cause of

action, in ordinary and concise language without repetition • They was a problem with “conclusions of law”

o They negligently drove their car. Rule 7

• What is a pleading (notice pleading) o Compliant

§ Jurisdiction § Claim § Prayer (Demand for a relief)

ú PL can “demand damages in an amount to be shown at trial”

Today in Indiana you use notice pleading in court-----know for test!

• Want to get people in court and not keep them out. Rule 8

• 8(a) Want a short and plain statement of jurisdiction o Can satisfy by saying we are seeking relief over the

$75,000 limit § If you do not do this DF will file a 12(b)(6)

ú If there was no cause of action it is dismissed (may be rude but not illegal)

ú Even if everything you say is true, I still win ú Can dismiss here as well if not plead right.

Dioguardi v. Durning pg 294 Facts:

• The plaintiff alleges that after he tried to import merchandise from Italy “of great value,” the defendant sold his merchandise to another person for the amount the plaintiff was going to pay and his other merchandise leaked out of the bottles.

Reasoning: • The court remanded the case because the plaintiff stated

everything he needed to under rule 8. Rule 8: a pleading that states a claim for relief must contain: a short and plain statement of the grounds, a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for the relief sought.

Under 12(b)(6) • Not checking for evidence • Only looks to the face of the complaint • Point is to determine whether the PL has alleged a claim

cognizable by the law • Only care if the claim you are stating has a legal remedy

Bell Atlantic Corporation v. Twombly pg 297 Facts:

• PL’s subscribe to telephone services. They believe the 4 companies agreed not to compete and continue to charge a huge price.

• They violated §1 of the Sherman Antitrust act • Parallel Conduct

o Not illegal if they independently do it. o Unless they conspire/agree to do it.

• Allege in the complaint • Court states that claim requires enough facts to suggest

agreement so they dismiss claim • Factual allegations must be enough to raise right to relief

above the speculative level o Plausible

§ Enough factual matter to have a reasonable expectation that discovery will reveal evidence sufficient to establish your claim

§ More than possible § Less than probable

o Also NO legal conclusions are not entitled to presumption of truth

Rule 9 (b)

• Before Twombly they had to give specific facts to allege fraud or mistake

• Before Twombly you could allege general allege someone acted with malice intent.

Ashcroft v. Iqbal- handout

• Ashcroft- principal architect of the policy- conclusory and bald allegations

• Mueller- instrumental in its adoption, promulgation and implementation- conclusory and bald allegations

• First step of the court o Look at the elements for the claim/cause of action

• Need to plead sufficient factual matter!!!!

• 2 prong approach o Identify allegations that are conclusions- NOT entitled

to presumptions of truth. § Get rid of legal conclusion and facts that are

conclusory o Assuming else is true: determine if plausibly states a

claim § How to determine plausibility?

ú Standard • Sufficient factual matter [is entitled to

presumption of truth] to allow a court to draw a reasonable inference that DF is liable for misconduct alleged

• Merely consistent with liability is insufficient [if facts are consistent with either legality or liability-then not enough]

ú Context • Specific

o Court to draw on its judicial experience and common sense

• OBVIOUS alternative explanation- more likely explanation

o The DF’s gave them the explanation

• Dissent o Anything factual is assumed to be true except “little

green men” § So facts too conclusory is assumed to be true

o Cannot tell difference between conclusory and nonconclusory statements.


• Iqbal is the law o Use the 2 prong approach

• Post Twombly and Iqbal lack of resources to engage in extensive pre-filing investigation

• Some circuits are having problems interrupting Iqbal. Some are not taking it very seriously

8(d)(2) alternative Statements 8(d)(3) Inconsistent Claims McCormick v. Kopmann

• Wife sued driver of car that hit her husband and killed him. She stated that the other drive was negligent and her husband was not

• She also sued the bar stating that the bar continued to serve her husband after he was intoxicated.

Cannot recover inconsistent but you could take the inconsistent theories to trial 8(d) for DF as well as PL Voluntary Dismissal

• Pl can voluntarily dismiss their case as long as before DF files a response

• After that it has to be agreed to by the DF- Settlement Involuntary Dismissal

• If Pl fails to prosecute/fails to try their case Dismiss with prejudice

• Cannot re file Dismiss without prejudice

• Can re file Defendant’s options in response

• Motion o Request the court order something

§ Ie 12(b)(6), 12(f) • Answer

o Pleading responding to the allegations of the claim § 12(a)(1)(a)- 21 to file an answer

o Can § Admit

ú Once you admit it cannot be contested ú Could amend but that is not certain

§ Deny ú General

• Denies each and every allegation of the complaint

• Has to be done in good faith ú Specific

• Responding to each paragraph of the complaint individually

ú Qualified general denial • Example: DF admits the allegations of

paragraph five or the complaint and

denies each and every other allegation of the complaint

§ Lacks sufficient information to admit or deny ú 12(b)(5)

§ 12(b)(4) ú could admit some part of the paragraph but

deny others ú no response to a paragraph is consent to

admit • Also in your answer, you should add any

o Affirmative Defenses 8 (c) o Counterclaims

Failure to respond: Default and Default Judgment

• Fail to answer then default judgment o PL’s attorney has to go to court to request it.

Amended Pleadings 15(a)

• Can amend the complaint once w/o court approval o Up to 21 days after filing the first complaint Or o 21 days after you receive an answer

• Can amend again but need approval by DF’s written consent or courts permission

o Usually courts allow once amendment as well § Reasons to deny

ú Undue delay ú Bad faith or dilatory motive ú Repeated failure to cure deficiencies by

amendments previously allowed ú Undue prejudice to opposing party by virtue

of allowance of amendment ú Futility of amendment

Relation Back

• Add a new claim of action (after statute of limitations is up) that would have been covered by the statute of limitations when it was first filed.

• Can still use it as long as it can relate back (meaning it could be shown in the evidence in first complaint)

• Add new claim after the statute of limitations run out • Way around statute of limitations

Rule 15(c)

• Amendment relates back when: first 2 are major

o Law that provides the applicable statute of limitations allows relation back; OR

§ Go to the statute itself and look it up: Does that state law allow relation back

o Arises out of the same transaction or occurrence as the original claims- STO;or

o IF amending party –adding a party § Adding new claim against new party after statute

of limitations have run. § If STO & § If w/in 120 days filing

ú Received notice such that not prejudiced & ú Knew should have been sued “but for a

mistake in proper party ID Hypo: arrested and beating up by the cops. No idea what the names of the officers are.

• Sue the whole department. • Figure out the names after the 120 days can amend • Courts state that not knowing is not a mistake. You truly have

to be mistaken Marsh v. Coleman Company pg 341 Facts:

• Marsh worked for Coleman. Was told they would always have a place there, he was later fired.

• Court found it did not relate back because the claims are based on events and transactions that are distinct in time and not closely related.

• First claim was age discrimination and breach of contract • New claim was based on promises

IF on an exam: If you want to argue that it does not relate back need to argue it was not same transactions or occurrence Veracity in court filing etc: Rule 11 and other devices

• Every pleading, written motion, and other paper must be signed by at least one attorney of record or party personally

Rule 11 • Signed-Certify

o Have to do an INQUIRY-Reasonable under the circumstances

§ If statute is months away § If statue is that day then will have to take client’s

word for it.

ú If you find out the facts are not true then you cannot advocate it.

o If unsigned and the attorney does not sign it the court: § MUST strike it

o Helps certify § Not for an improper purpose

ú Harass, delay, or needless cost § Reasonable basis in Law

ú Argument for extending, modifying, or reversing existing law or for establishing new law

§ Reasonable basis in Fact • Sanctions

o Supposed to be necessary to deter repetition o Could be attorneys fees directly from the violation

Model rules of professional conduct pg 348-349

• Rule 3.1 basically rule 11 • Rule 3.3 Not only cannot advocate it but also need to correct

it, if there is a big case that the other side doesn’t bring it up, then you have to even if it is adverse to your position

First line task in ensuring the integrity of the court • Rule 3.4 Cannot obstruct or alter evidence

Court • Sua Sponte- Order to show cause • Motion of opposing side-rule 11 sanctions

o Safe harbor-21 days • Rule 11

o Court can always issue a show cause order. o Safe Harbor

§ Allows them 21 days to fix the mistake o (c)(2)

§ has to be a separate motion § describe specific conduct § served under rule 5 § allows them 21 days

Rector v. Approved Federal Savings Bank pg 351

• If you do not get your 21 days then you need to appeal it or it is waived

Where to file a lawsuit How to transfer Pleading

• Complaint • Jurisdictional challenges • Answer

Defense Discovery pg 361

• If you fail to disclose o Then do not get to use it.

• Privileged elements- Have to have all of them o Confidential o communications o between attorney and client

§ includes prospective clients § Organizational clients- corporations

ú Not all employees of the corporation will be covered

o for the purpose of obtaining legal advice assistance § pre-existing docs are not covered § 3rd person destroys the privilege

United Oil Co. v. Parts Associates, INC. pg 369

• Scope of discovery o Any non privilege matter

§ Relevant to any party’s claim or defense Saying products and dyes are causing liver damage Wanting access to all claims that have been filed against R&H

• But not all of them are relevant Federal Rule of Evidence

• Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probably than it would be w/o the evidence.

o Too broad Rule 26(b)(5) pg 67

• Have to identify the materials that are privileged o Privileged log

Rule 26(b)(3) pg 65

• Work product protection (not a privilege) • Prepared in anticipation of litigation • Can be overcome (materials are discoverable)

o Substantial need for the materials § Cannot get w/o undue hardship

§ But cannot get Mental impression work product*****

ú Trial strategy- attorney/expert conclusions, opinions, or legal theories


• send to parties only- not witnesses • Only have limit of 25 interrogatories (including subparts) per

party o Q1: sub part a, b, c, etc

• Helps plan answer • Contention Interrogatory

o Looking at the factual basis for their legal theory § If you say you didn’t do it then who did? § If you say the PL was negligent then how was he

negligent? • Need to send out 30 days prior to close of discovery • If mailed or electronic request

o Get 3 more days o So di it 33 days in advance


• Can send to anyone that has discoverable information • Can be used to pin someone down to their story • Have to tell the truth and stick to their story

Document request

• Can send as many has you want • Only sent to party • Tangible things • 30 days to respond- need to send 30 days prior to the close

of discovery • If mailed or electronic request- Mail/Electronic Rule

o Get 3 more days o So do it 33 days in advance

• Do this before deposition so you know what questions to ask Medical Examination

• Only on parties • Requires good cause to get one • Require an affirmative showing by the movant that each

condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination

Request for Admission (Rule 36)***Know for test.

• Used to determine what issues are and are not in dispute • Valuable tool both for acquiring a more detailed knowledge of

the evidence and for narrowing the issues. • A) To whom may request for admission be directed?

o A party • B) if recipient simply ignores the requests for admission and

does not respond? - Rule 36(a)(3)- o It is admitted to at trial

• C)Recipient of a request for admission denies a fact that is later established at trail, what sanctions are available? - Rule 37(c)-

o If a good faith reason to deny or no admit it then okay but if not then you are sanctioned

§ Court must make you pay for the amount it took them to show it was true.


• Offer opinions where “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue”

• Four types of experts o Experts a party expects to use at trial

§ Must be identified 90 days before trial (Rule 26) § If retained or specially employed to provide

expert testimony the disclosure must be accompanied by a written report prepared and signed by the expert

ú Requirements are in Rule 26(a)(2) § If not designated then cannot be used at trial

o Experts retained or specially employed in anticipation of litigation or preparation for trial but not expected to be used at trial. Rule 26 (b)(4)(d)

§ Except as provided in rule 35 for an examining physician

§ The facts and opinions of experts in this category can be discovered only on showing of exceptional circumstances

ú Circumstances in which expert employed by party seeking discovery could not conduct important experiments and tests bc an item of equipment, etc needed for the tests has

been destroyed or is otherwise no longer available. If the party from whom discovery is sought had been able to have its experts test the time before its destruction or nonavailability, then information obtained from those tests might be discoverable

ú Circumstances in which it might be impossible for a party to obtain its own expert. Such circumstances would occur when the number of experts in a field is small and their time is already fully retained by others

o Experts informally consulted in preparation for trail but not retained. No discovery may be had of the names or views of experts in this category

o Experts whose information was not acquired in preparation for trail.

§ The doctor who was in the emergency room when victim was brought in, or anyone else who was a witness and saw what happened.

§ Full discovery • Have to know 1, 2 and 4 for test

Rule 26(f)

• Going to have the 26(f) conference- attorneys meet and confer

o Needs to be done 21 days before scheduling order/conference

o Could be as late as 99 days after service o Discuss

§ Settlement possibilities § When or how to do the disclosures required by

Rule 26(a)(1) § Develop a proposed discovery plan

• Initial disclosers are 14 days after the 26(f) conference • Scheduling order/conference- 21 days after 26(f) conference

o No later then 90 days after DF appearance or o 120 days after service o Sets the dates for everything

§ Discovery completed by day X § Dispositive motions made by day X

ú 12(b)(6)/ summary judgment

§ etc § This controls over everything, even the rules § Could amend the amount of

dispositions/interrogatories ú Say you need 15 instead of 10 dispositions

then the court will allow if both parties agree.

Two conference need to know for test:

• Scheduling Conference (16 b) o Court will issue a scheduling order

§ Set up deadlines ú Like the close of discovery

• Final Pretrial Conference (16e) o Final pretrial order

§ 30 days before the trial date going to give pretrial disclosures

§ 16 days before the trial file objections to other sides pretrial disclosures

§ Order contains ú Each party’s assertion of every factual and

legal contention to be raised at trial ú Every witness they will call ú Every piece of evidence they will seek to

introduce § Only modified to prevent “manifest injustice”

o If do not show up or not prepared then court can issue a rule 37 sanction

Washington State Insurance Exchange v. Fisons Corp. pg 421

• Two smoking gun documents that were not given during discovery

Rule 37

• Meet and confer if item requested is not sent to you. • File motion to compel • Court orders other side to produce • Party fails to produce

o Move for Rule 37 sanctions Rule 37 sanctions

• (b)(2)(a)(1-7) o for not obeying a discovery order

§ Everything other side says is true

§ Does not get to use opposing designated claim or defense

§ Do not get evidence on that claim § Get rid of claims or whole case § No case until documents are handed over § Default judgment § Contempt of court


• If you don’t know who a person in the company is then all you have to do is explain the information you want and the other side will tell you who that person is


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