1. Prof. Washington Civ. Pro. Spr. 06 PLEADINGS

2. PLEADINGS The pleading stage of litigation involves the complaint, the answer and pre-answer motions The pleading stage of litigation involves the complaint, the answer and pre-answer motions The pleading stage is governed by FRCP 8 (claims, defenses, affirmative defenses), FRCP 9 (specially pled matters), FRCP 11 (ethical requirements), and FRCP 12 (pre- answer motions) The pleading stage is governed by FRCP 8 (claims, defenses, affirmative defenses), FRCP 9 (specially pled matters), FRCP 11 (ethical requirements), and FRCP 12 (pre- answer motions)

3. Prof. Washington Civ. Pro. Spr. 06 AllegationsProof Pleadings Phase Discovery Summary Judgment Trial

4. Prof. Washington Civ. Pro. Spr. 06 Three major characteristics of modern pleading (1) it eliminates claims w/ procedural defects, (1) it eliminates claims w/ procedural defects, (2) structures the discovery process, and (2) structures the discovery process, and (3) eliminates meritless claims w/ a minimum expenditure of judicial resources (3) eliminates meritless claims w/ a minimum expenditure of judicial resources

5. Prof. Washington Civ. Pro. Spr. 06 Code / State Pleading Federal Pleading Fact pleading Notice pleading Requires the inclusion of many more facts Rule 8(a) requires a “short and plain statement of the claim showing that the pleader is entitled to relief” Reflects a preference for resolving cases on the pleadings Reflects a preference for not resolving cases on the pleadings Goal is to introduce the facts constituting the claim that the P is bringing against the D Goal is to give the D sufficient notice of the claim brought vs. him so that he can prepare an adequate defense

6. Prof. Washington Civ. Pro. Spr. 06 A Complaint must: A Complaint must: 1) invoke at least by reference a body of substantive law (i.e., defendant negligently operated his vehicle) 1) invoke at least by reference a body of substantive law (i.e., defendant negligently operated his vehicle) 2) sketch a factual scenario that, if shown to be true, falls w/in that body of law 2) sketch a factual scenario that, if shown to be true, falls w/in that body of law

7. Prof. Washington Civ. Pro. Spr. 06 Does the language in this complaint comply with the requirements of Rule 8? Does the language in this complaint comply with the requirements of Rule 8? Complaint alleges, “On Dec. 12, 2004 P was driving southbound on Peachtree St. At the same time D was driving in a northerly direction on Peachtree St. The two cars collided leaving P seriously injured. P requests relief in the amount of 1million dollars to cover his medical expenses and to compensate him for lost wages etc...” Complaint alleges, “On Dec. 12, 2004 P was driving southbound on Peachtree St. At the same time D was driving in a northerly direction on Peachtree St. The two cars collided leaving P seriously injured. P requests relief in the amount of 1million dollars to cover his medical expenses and to compensate him for lost wages etc...”

8. Prof. Washington Civ. Pro. Spr. 06 Resurrected Complaint alleges, “On Dec. 12, 2004 P was driving southbound on Peachtree St. At the same time D was negligently operating his vehicle driving north on Peachtree. The two cars collided causing P to suffer serious injuries.” Resurrected Complaint alleges, “On Dec. 12, 2004 P was driving southbound on Peachtree St. At the same time D was negligently operating his vehicle driving north on Peachtree. The two cars collided causing P to suffer serious injuries.”

9. Prof. Washington Civ. Pro. Spr. 06 Ways to test a Complaint Procedural Pre-Answer Motions Procedural Pre-Answer Motions D can contend that the court selected by the plaintiff lacks subject matter jurisdiction (Gordon) FRCP 12(b)(1) D can contend that the court selected by the plaintiff lacks subject matter jurisdiction (Gordon) FRCP 12(b)(1) D can contend that the court lacks personal jurisdiction FRCP 12(b)(2) D can contend that the court lacks personal jurisdiction FRCP 12(b)(2) D can contend that the court lacks venue FRCP 12(b)(3) D can contend that the court lacks venue FRCP 12(b)(3) D can contend that service was improper FRCP 12(b)(5) D can contend that service was improper FRCP 12(b)(5) D can contend that the complaint or summons was defective FRCP 12(b)(4) D can contend that the complaint or summons was defective FRCP 12(b)(4)

10. Prof. Washington Civ. Pro. Spr. 06 Ways to test a Complaint Substantive Pre-Answer Motions Substantive Pre-Answer Motions D can contend that even if everything that P alleges in his complaint is true it does not state a claim for which relief can be granted. FRCP 12(b)(6) D can contend that even if everything that P alleges in his complaint is true it does not state a claim for which relief can be granted. FRCP 12(b)(6) D can request a more definite statement of the plaintiff’s claim FRCP 12(e) D can request a more definite statement of the plaintiff’s claim FRCP 12(e)

11. Prof. Washington Civ. Pro. Spr. 06 How should the D respond? How should the D respond? P alleges D insulted him in public; D believes the law does not permit recovery for verbal insults unaccompanied by violence. P alleges D insulted him in public; D believes the law does not permit recovery for verbal insults unaccompanied by violence.

12. Prof. Washington Civ. Pro. Spr. 06 How should the D respond? P alleges that D struck her; D says he was not present at the time and place alleged. P alleges that D struck her; D says he was not present at the time and place alleged.

13. Prof. Washington Civ. Pro. Spr. 06 How should the D respond? P alleges that D and P signed a contract, the terms of which D then violated; D contends that she refused to honor the agreement because P forced her to sign the agreement at gunpoint. P alleges that D and P signed a contract, the terms of which D then violated; D contends that she refused to honor the agreement because P forced her to sign the agreement at gunpoint.

14. Prof. Washington Civ. Pro. Spr. 06 Ways to test a Complaint Rule 12(b)(6) tests the legal sufficiency of the complaint Rule 12(b)(6) tests the legal sufficiency of the complaint Haddle vs. Garrison (reflects some of the tension b/t how a judge thinks about the resolution of a specific dispute before the court and the long-term consequences of a decision on the legal landscape) Haddle vs. Garrison (reflects some of the tension b/t how a judge thinks about the resolution of a specific dispute before the court and the long-term consequences of a decision on the legal landscape)

15. Prof. Washington Civ. Pro. Spr. 06 Alternative Pleading 8(e)(2) allows in pertinent part: “[a] party may set forth two or more statements of a claim or defense alternately or hypothetically [and a] party may also state as many separate claims or defenses as he has regardless of consistency.” 8(e)(2) allows in pertinent part: “[a] party may set forth two or more statements of a claim or defense alternately or hypothetically [and a] party may also state as many separate claims or defenses as he has regardless of consistency.”

16. Prof. Washington Civ. Pro. Spr. 06 RULE 11 PROTECTING YOUR TICKET OR ATTORNEYS BEHAVING BADLY

17. Prof. Washington Civ. Pro. Spr. 06 BURDENS OF PROOF Burden of pleading Burden of pleading Burden of production Burden of production Burden of persuasion Burden of persuasion

18. Prof. Washington Civ. Pro. Spr. 06 PRACTICE QUESTION Adams, an atty, sues his cousin, Davis for professional services. Who, if anyone, must allege that the services were (or were not) intended as a gift? Adams, an atty, sues his cousin, Davis for professional services. Who, if anyone, must allege that the services were (or were not) intended as a gift?

19. Prof. Washington Civ. Pro. Spr. 06 Practice Question Bellows, a disk jockey, sues his employer, WFCP, for failure to pay the amount of overtime compensation required by the Fair Labor Standards Act. Who must allege that Bellows (is or is not) a professional employee and therefore is not (or is) subject to the Act? Bellows, a disk jockey, sues his employer, WFCP, for failure to pay the amount of overtime compensation required by the Fair Labor Standards Act. Who must allege that Bellows (is or is not) a professional employee and therefore is not (or is) subject to the Act?

20. Prof. Washington Civ. Pro. Spr. 06 Rule 15 Amendment The “Do-over” Rule A party can amend a pleading without the court’s permission if it is made before the filing of a responsive pleading or if it is made within 20 days after service of the pleading 15(a). A party can amend a pleading without the court’s permission if it is made before the filing of a responsive pleading or if it is made within 20 days after service of the pleading 15(a). If “leave of the court is required” then the court will consider whether the request is made in “good faith” and issues of prejudice that may result from the amendment. Rule 15(a) informs that leave is to be “freely given when justice so requires.” If “leave of the court is required” then the court will consider whether the request is made in “good faith” and issues of prejudice that may result from the amendment. Rule 15(a) informs that leave is to be “freely given when justice so requires.”

21. Prof. Washington Civ. Pro. Spr. 06 Rule 15 Amendment The “Do-over” Rule The relation back doctrine allows a claim precluded by the Statute of Limitations to be treated as if it were filed at an earlier date if: The SOL governing the c/o/a permits relation back 15(c)(1); The SOL governing the c/o/a permits relation back 15(c)(1); The “added” claim or defense arises out of the same O & T as the claim(s) or defenses asserted in the original pleading 15(c)(2); and The “added” claim or defense arises out of the same O & T as the claim(s) or defenses asserted in the original pleading 15(c)(2); and When a new party is named or a party’s name is changed the new party must have received notice of the claim and have known or should have known that but for a mistake they would have been named in the original pleading 15(c)(3). When a new party is named or a party’s name is changed the new party must have received notice of the claim and have known or should have known that but for a mistake they would have been named in the original pleading 15(c)(3).

22. Prof. Washington Civ. Pro. Spr. 06 END