Chapter 1 – Choosing a System of Procedure Intro to Class



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  1. Chapter 1 – Choosing a System of Procedure -- Intro to Class

Hobbes’ idea of law of nature – brutish, nasty and short. In order to overcome this we create limits on society, enforce limits on society, confiscate/punish when people refuse to abide by limits

Classic model of dispute resolution:


  • Dispute is bipolar – only 2 parties interested in outcome

  • Retrospective – court is being asked to decide something in the past

  • Right/remedy are interdependent – remedy must flow directly from objective being pursued by initiator

  • Self contained – impact of judgment is contained to the parties

  • Process is party initiated and controlled

  • Neutral arbiter

We structure our system on the above assumptions so that:



  • People can predict what will happen to them

  • Have expectations of safety

  • Procedural regularity – underlying notion of fairness which compromises fate of legal system



  1. Chapter 2 – The Rewards and Costs of Litigation – Of Remedies and Related Matters

A. Prejudgment Seizure


  • A party cannot expect to obtain relief until case is tried on its merits, however there are procedural devices that permit some form of interim relief before a case goes to trial – their purpose is to preserve the status quo so that any relief obtained after trial is meaningful – ex. include temporary restraining orders and preliminary injunctions

  • Also – prejudgment seizure which is means to ensure that property will be available for execution if plaintiff prevails

  • At common law, plaintiff had to wait until end of case to get judicial relief except sometimes it was possible to seize property to coerce defendant to appear at trial– but over time prejudgment seizure came to serve purpose of assuring plaintiff that sufficient assets would be available to satisfy any judgment that may later be entered.
  • Our focus here is on the procedures that attend to use of these pre-judgment remedies. Initially they were quite casual, but there were many abuses which raised issues of due process


    • Due Process – before someone has something taken from them by the state they need 1) notice and 2) hearing, before the state may act, otherwise there is no due process and seizure is unconstitutional.

  • We’re going to look at cases which tried to work out the due process requirements for such remedies.

    • Over time, court moves from the Foundational Approach (list of what “must be) to the Instrumental Approach (balancing test)

  • Under Foundational Approach, there are 5 key elements

  1. Notice

  2. Hearing

  3. Timely Remedy

  4. Right to counsel representation

  5. Impartial Arbiter

  • Under Instrumental Approach – world of costs and benefits

  • Categories do not have organic quality, not actual rules, just justifying exceptions that have already been made

  • Exceptions to the foundational approach grow to become too inclusive so that it is unusable, must find another approach

  • So – look at the purpose of due process – what is it protecting you from in a concrete way? So use due process as an instrumental concept to get you that result Are hearing and notice really the best way to avoid error? Are there other cost/benefit analysis that could lead to another result?



Fuentes v. Shevin – US SC 1972 – p. 29

Facts: Fuentes bought a stove, and firestone said she didn’t pay; so Firestone posted a bond, and filled out a form with county clerk stating their entitlement to the goods, and got writ of replevin which instructed the sheriff to go repossess her goods. Fuentes sues the state saying this writ of replevin violates her 14th amendment rights


Holding: Court agrees with Fuentes. In this case, state violated right to due process by denying right to prior opportunity to be heard before goods were taken by state – court holds that due process requires providing hearing and notice before property can be seized

Note: Court takes a Foundational approach by reducing constitution to concrete terms – Due process equals hearing and notice, unless state decides overriding direct interest of the public (public safety- contaminated food, mislabeled drugs, national security, public welfare (state bank failure))
What rules can we establish from this?


  • Foundational Approach -- General Rule of Fuentes v. Shevin: There must be hearing and notice, confined to limited, justifiable set of exceptions that do not deter from rule of law and still allow us to conclude the rule exists

    • But over time cases mount and it no longer seems there is a structural relationship here – too many exceptions – so is it really a rule?

  • So now there is an Instrumental Approach – no longer a foundational approach with a list of what “must be” – rather try to develop requirements of due process not a priori but as applied -- Overtime this has proved best

  • So now, under the Instrumental Approach, rule is not that notice and hearing are required for their own sake, but because they have been proven to be best mechanism that we know of to protect us from the misapplication by state court



Michell v. Grant –US SC 1974 -- p. 42

Facts: Grant sold goods to Mitchell, then filed suit claiming balance unpaid. Grant went before a judge in Louisiana with affidavit of credit manager attesting to debt, and adding that they believed Mitchell would destroy property pending proceedings and placed a bond, Judge (without notice to Mitchell) signed order of seqeustrian, directing constable to take possession of goods.


  • This is different than Florida (in Shevin), b/c 1) specific allegations, 2) bond, 3) judge approved writ (not clerk, but in practice doesn’t afford much more protection), 4) meaningful post-deprivation process through immediate hearing and dissolution of writ if plaintiff doesn’t prove case, and a payment of defendant’s damages (court fees) if plaintiff is wrong. Louisiana system seeks to minimize risk of error

Holding: Supreme Court upheld this process was constitutional as Louisiana provided for more protections for defendant and sought to minimize risk.

  • Key here is really the meaningful post-deprivation remedies and process as the plaintiffs are being forced to internalize ahead of time the consequences of getting it wrong – this incentives them to get it right

New Rule?: So if object of due process is just to limit to tolerant amount the erroneous use of state authority against life liberty and property – now we have a new way of thinking about this? Its no longer that hearing and notice are necessary to prevent erroneous action (per Fuentes v. Shevin) but that we must look at the entire package – are there other mechanisms that provide efficient incentives towards proper behavior?

  • Court says it is not overturning the 5 requirements of Fuentes v. Shevin, but says there are substitutes (the “4 Mitchell Factors”) for elements that satisfy due process –

    • #1) Specific Allegations

    • #2) Bond posted

    • #3) Goes through a judge (not a clerk)

    • #4) Post-Deprivation hearing/remedies


North Georgia Finishing v. Di Chem (US SC 1975) – p. 44

Facts: Plaintiff sued defendant in Georgia arguing that defendant owed him $51k in goods bought from plaintiff. Georgia authorizes a writ of garnishment when plaintiff submits affidavit stating 1) amount claimed due (no specific allegations) and 2) asserting that he has reason to apprehend loss of same value unless garnishment is issued. court clerk issues the summons thus freezing the defendants bank account, no bond.

Holding: Supreme Court – Georgia court failed to take into consideration Fuentes. Property was impounded absent a bond and put totally beyond use during pendency of litigation on alleged debt, writ of garnishment issued by a court clerk without notice or opportunity for early hearing, and no participation by judicial officer. This is invitation for extortion – bank accounts being frozen with no due process


  • Doesn’t have 5 key points of Fuentes, nor 4 Mitchell Factors -- bond is missing here



Matthews v. Eldridge – (US SC 1976) – p. 48 (in note 7)


Facts: Social security administrative process afforded what court called “elaborate” opportunities for claimants to contest conclusion that their disability had ended, but allowed a full evidentiary hearing only after actual cessation of benefits

Issue: What kind of hearing is sufficient before deprivation of benefits (in this case Social Security) is okay?

Holding: Applying 3-part test below, in this situation, given these factors pre-termination hearing is not required. 1) Private interest – high (but not as bad as Goldberg)-- disability benefits are not based on financial need, so likelihood of serious loss due to erroneous termination is less than welfare (more likely to have other sources of income, including welfare); 2)Erroneous deprivation –low -- turns on medical experts – documentation and evidence so low, post-deprivation remedies too; 3) Public interest – moderate to high b/c once someone is improperly given benefits, its nearly impossible for government to get it back as can’t really litigate against all poor people for small amounts of money. So deprivation of benefits pre-hearing is okay in this situation – this turns on private interest


Rule: Supreme Court – due process concept is flexible concept in administrative arena consisting of 3 required factors which must be balanced: 1) private interest that will be affected by official outcome, 2) risk of erroneous deprivation of such an interest through procedures used, and probable value (if any) of additional or substitutional safeguards; 3) government’s interest including function involved and fiscal and administrative burdens that additional or substitute procedural requirement would entail

Goldberg v. Kelly (US SC 1970) – p. 41


Facts: Height of due process revolution in the 1960s; individual to be terminated from welfare benefits, with hearing given to individual after fact, where if individual wins s/he will receive back benefits. Welfare is form of new-property so this is a violation of due process. Court says absolute right to pre-deprivation hearing per Fuentes

Analyzing Goldberg under Matthews test:

  • Private Interest – high – food/shelter/necessities are all dependent on receiving welfare – so other than penalty of death this is very high (in Matthews, people losing soc. Sec. benefits would still have welfare if they deserved it)

  • Risk of error -- low comparatively – official forms filled out as well as home visits, so there is documentary evidence (in Matthews, low risk as well)

  • Public interest – moderate to high – opens door to many other challenges which could cost state a lot of money – direct interest

Key to Goldberg: So what is key difference between Matthews and Goldberg? Private Interest drives this result – while risk of error isn’t so great, giving them a hearing a little earlier and small amount of trouble that causes is worth the high level of private interest – in Goldberg and Matthews you have same risk of error and same state interest


Connecticut v. Doehr – (US SC 1991 – p. 50)


Facts: Petitioner (DiGiovanni) submitted an application to CT Superior Court for an attachment on his home in amount of $75K, this was done in conjunction with civil action for assault and battery against Doehr. CT law allowed for prejudgment attachment of real estate without prior notice or opportunity for hearing. DiGiovannis submitted affidavit in support of his application stating that his claims were true, Judge ordered attachment on Doehr’s home in amount of $75k; sheriff ordered attachment and (by mistake) noticed Doehr after attachment

Holding Supreme Court – foundational view of due process requirements that require a checklist of things that must be done, on otherhand instrumental view requiring checklist of what must be present – what really matters here is a balance of interests from Matthews v. Eldridge, specifically: 1) private interests (in this case -- moderate to low, relative to other cases we’ve seen, bad b/c attachment clouds title, credit rating at risk, mortgage at default, etc.); 2) examination of risk of erroneous with benefit of additional process (in this case – very high, no documentary evidence or specific allegations, no bond so low cost of entry for plaintiff, low post deprivation remedies means no consequences to plaintiff for getting it wrong); 3) state interest (in this case – low b/c 2 private parties involved – no direct interest for state.

Rule: Balancing test now that considers : 1) private interests, 2) examination of risk of error with benefit of additional due process, 3) State Interest

Transformation of Tests

5 part test of Fuentes →→

4-part test of Mitchell →→

balancing test of Matthews v. Eldridge


  • Now requirements of Fuentes, Dichem, Mitchell cases are evidentiary pieces, -- not full blown requirements

  • Court is telling us to look at precedent as a guide to understanding – helps us determine what kinds of circumstances courts have found high risk of error and not high risk of error, in what circumstances there are benefits to additional processes or not benefits from additional process

  • No longer per se requirements, but all part of a balancing test



Van Harken v. City of Chicago US Court of Appeals 7th Circuit -- 1997


Facts: Chicago reclassifies parking violations as civil instead of criminal. It seems that we have all the Fuentes elements here. Nevertheless, they argue that there is not enough due process b/c 1) the hearing is insufficient b/c the cop doesn’t have to show up, and usually in hearings, you have the right to confront adverse witnesses and 2) they argue that the judge is not a real judge-- instead of a full judge they get a lawyer who’s a “hearing officer” hired by the mayor – conflict of interest? Court dismisses.

Holding Apply Matthews (Cost/benefit analysis) to it: (1) Private interest is low (only a 50 to $100 parking ticket – if person owns a car, this is relatively low) (2) risk of error is low (since not many cases are ruled in favor of the petitioner with the added process) (3) Public interest is high. (since it is costly to add process, by hiring regular judges and hiring more cops, so that traffic cops can appear in court, want to use limited resources in a reasonable way).

Note: Does Matthews v. Eldridge go all the way to the bottom? If stakes are low enough can state go all the way to no hearing? This is a concern. Understanding in Fuentes is that there is an intrinsic value in hearing, which is essential to due process and our conception of civilized society (with some exceptions) – now we’ve moved to a model of constitutional due process that has no attachment to romantic notion of hearing – no sense of value in hearing beyond cost benefit structure – answer under Matthews must be that a hearing has no intrinsic value, just an instrument to tolerable risk ratio. Matthews approach makes a lot of sense, but there is a degree to which we as a society feel there is an intrinsic value in hearing


Lesson of Matthews: all other things being equal, the less that is at stake, the less due process is due

  1. Chapter III – Describing and Defining the Dispute


  • Central function of a system of civil procedure is to describe and define the dispute between parties.

  • Objective of assuring certainty through early definition of disputes, and perhaps of deciding disputes early in litigation, can clash with objective of allowing flexibility to take account of unforeseen circumstances

A. The Historical Evolution of Pleading

1. The Forms of Action

2. The Common law pleading

3. The American Reform Experience

Gillispie v. Goodyear Service Stores (we skipped) – p. 123




B. Describing and Testing the Plaintiffs Claim


  • Unlike common-law principles, we now assume people have little information when they begin court process, so there is a liberal information acquisition system.

  • Fed. Rules of Civ Pro. Do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all Rules require is a short and plain statement of the claim that will give defendant fair notice of what plaintiff’s claim is and what grounds upon it rests.


Pleading a Claim

  • Liberal pleading system – parties can file suit without fact. A defect of the common law system was that it put a premium on information, but provided no mechanism through which to acquire that information. Liberal pleading system seeks to remedy that.

  • Rule 1: Right to a just, speedy and inexpensive trial
  • Rule 7: Pleading Allowed -- a complaint and an answer all in the form of pleadings


  • Rule 8: General Rules for Pleading: 1) short and plain statement of the grounds upon which the court’s jurisdiction depends, 2) short and plain statement of the claim showing that the pleader is entitled to relief (interpreted as necessitating defendant be fairly notified of nature of the claim) as; 3) a demand for judgment for the relief the pleader seeks

    • This is a low barrier to entry to court system

    • Use Rule 1 framework of balancing equity and efficiency concerns in determining whether pleading gives enough detail in any given case

  • Conley v. Gibson – only minima of due process be satisfied – notice of whats at stake, defendant must be notified of nature of the claim



1. The Problem with Specificity




US v. Board of Harbor Commissioners (1977) – p. 131


Facts: Government is charging companies with discharging oil into navigable rivers. Government is suing all companies near oil spill as it isn’t sure which one is guilty (but one of them definitely did it). 2 of the defendants move pursuant to Rule 12(e) for a more definite statement -- because charges are too vague to formulate a responsive pleading as required by Rule 7, doesn’t specify which defendants are responsible for alleged discharge, amount of oil discharged and actions which caused discharge.

  • Why does defendant file the motion for a more definite statement by Rule 12(e)
  • this request for a more definite statement by Rule 12(e) is really an effort to “flesh out” the governments case, and so is a misuse of Rule 12(e)


  • they want to know if plaintiff has enough evidence, if not they want to move pursuant to Rule 12(c) for a motion to dismiss

Holding Supreme Court – holds complaint gives enough information for defendants to file a response. By Conley v. Gibson standard the defendant has been put on notice and provided with ability to formulate response – so adequate charge.

Rule: Conley v. Gibson standard – all you need is notice of whats at stake and nature of the claim for defendant to have due process

*Rule 8 – Low Barrier to entry for Plaintiff to Plead*
Note: Issues present – 1)Low barrier of entry for plaintiffs, costs are being imposed on defendant (time, lawyers), most of whom are innocent. Plaintiff can get a strategic advantage by gaming defendants (they each want to prove it isn’t them, can do this by proving it is another, etc). Why do we do this? b/c court thinks we will sort it out in litigation process, so long as you are capable of answering the complaint, that is the most defendants are owed at this stage; 2) Court must balance interest of plaintiffs and interest of government -- Equity concerns (if govt. had to prove case over and over with each defendant, it would give advantage to everyone who wasn’t in first trial, b/c other defendants get to observe weaknesses of govt.’s case without being at risk) v. Efficiency concern (burden of having same trial over and over is a financial/time burden on the courts) – also more costly for govt. to find information if trying one by one
Hypo: What if oil in river, 100,000 registered motor boat owners with leak of oil being from one of boats – would court come out the same?
  • Technically there is 1) a jurisdictional right 2) clear statement of charge and 3) prayer for relief


  • But our instinct is that this would be wrong – scope of litigation is excessively large, cost of litigation is much higher, much less probability that each individual would be guilty – this is a cost benefit analysis.

  • So, while rules are meant to be transubstantive – applied uniformly regardless of substance of dispute, this cannot (and maybe should not) always be realized – policy argument


2. Consistency and Honesty in Pleading

a. Inconsistent Allegations




McCormick v. Kopmann – p. 135


Facts: McCormick was driving home from a bar and got hit by a truck (Kopmann) and died. McCormick’s wife brought 2 counts – count 1 against Kopmann for negligently driving truck that killed McCormick, and count 4 – against Huls bar for selling alcoholic beverages that rendered McCormick drunk and resulted in the car crash.. Kopman moved to dismiss charges on theory that there were inherent contradictions between count 1 and count 4 which were fatal.

Holding : plaintiff has right to go to trial on both counts and adduce all evidence/proof she needs under both counts – while complaint has inconsistent allegations (2 complaints cannot be reconciled) it does not follow that plaintiff may not plead counts together

Rule: We do not assume plaintiff to have information as to ultimate liability in threshold part of case – we let people plead inconsistently for lack of information, part of court process is obtaining that information – can be done after the pleading stage

  • This helps plaintiff b/c 2 defendants help build case against eachother
  • Kopman’s at an unfair strategic disadvantage – asymmetry of risk – since he actually killed mccormick


Rule 8(e)(2) – Party may plead inconsistently “party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses

Note: Isaacharoff: Court applies rule mechanically here – doesn’t ask why there is a rule to plead alternative and whether its purpose is applied here? Court ignores that rule is that court may allow people to plead the alternative, not must – in doing so they go against the rule’s objective of getting info from least-cost provider. P has more access to info here than D. she could have ordered autopsy, and resolved whether he was drunk. Court’s failure to get this info prejudices defendants. Kopman should have gone under Rule42(b) separation of trials for prejudice


3. Scrutinizing the Legal Sufficiency of a Plaintiff’s Claim

Mitchell v. Archibald & Kendall -- p. 152


Facts: Truck driver gets shot in face by robbers while doing a delivery for A&K; not yet on A&K’s premises when event occurs, but he is waiting nearby at a location that A&K employees directed him to. District Court dismisses case under Rule 12(b)(6) for failure to state a claim since Mitchell’s pleading states he was not actually on A&K’s property at time of shooting (so A&K did not have a duty to Mitchell). Mitchell appeals argues that under Illinois law meaning of “premises” is not fixed and context and circumstances are important.

  • Rule 12(b)(6) is appropriate when under no set of facts alleged could you possibly prove your allegations to make out liability – no legal basis

Holding: Court of Appeals says no cause of action/no duty of A&K b/c Mitchell, according to the facts alleged by plaintiff, was not on premises, so no issue for trial that could establish liability of the defendant – claims that plaintiff is making require that plaintiff have been on A&K’s premises, but in pleading plaintiff clearly states he was not on A&K’s premises -- the facts that plaintiff puts in contention are the outerbounds of what can happen in trial


  • Plaintiff could have survived a Rule 12(b)(6) motion by amending his claim under Rule 15(a) to state that he was on A&K’s premises, and then in trial argue that adjacent street was part of A&K’s premises (thereby raising issue of material fact which can only be resolved at trial); but by appealing, they stand on initial complaint and relinquish the legal theory they are actually trying to assert (notion of constructive premises)

  • This is case handled properly by the court – highlights distinction between facts and law – facts are taking as asserted for 12(b)(6) motion – questions on facts are matter for the jury/tryer of fact. But question of law are ones for the judges – confronted by a pleading “I am charging them for harming me on their premises, while I was off their premises” – court properly states once you ask me to assume you were off premises, no series of facts will allow me to believe you were on premises – this is matter of law

Rule 12(b)(6) – Defendant’s response -- Challenges claims legal sufficiency – failure to state a claim on which relief can be granted

  • Rules of Rule 12(b)(6) – 1) plaintiffs factual averments in pleadings are assumed to be true, 2) must be charitable in reading of plaintiff’s facts and give plaintiff benefit on the doubt

  • If plaintiff has failed to state a claim, he can amend it under Rule 15 (leniency of right to amend b/c motions to dismiss are not favorable ways of settling disputes – we prefer to settle disputes by matters of fact, not matters of law

Note: Why didn’t lawyer encourage Mitchell to amend rather than appeal (Mitchell did actually try to appeal at Appeals stage, but too late)?


  • Attorney wants to test legal sufficiency of plaintiff’s claim of constructive premises at an earlier stage than a later – this is a novel idea – sympathetic jury could buy it, but than it may be overturned on appeal as matter of law; attorney wants to determine all of that up front, before expending too much energy into case


4. Heightened Requirements for Specificity




Ross v. AH Robins – p. 159


Facts: Plaintiffs issue class action on behalf of all people who purchased stock of Robins corp during 1972-4 and suffered damages because of this. Company said it was doing great, then suddenly sent letter saying there were serious problems with Dalkon Shield product which caused deaths. Defendant filed motion to dismiss 12(b)(6) pursuant to Rule 9(b) which required heightened pleading for cases of fraud – need to state particularly what is wrong.

Holding: Court throws out for failure of specificity according to Rule 9(b) b/c plea did not contain 1) date stock price fell (wrong b/c publicly avail. Info), 2) relationship b/w woman who reported problem and company (wrong b/c only need to plead specifically with regard to fraud, not to state of mind of company’s knowledge)

Rule 9(b): Pleading special matters – fraud, mistake, condition of mind: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
  • Why do we have different rules for cases of fraud?


    • In-terrorem value (extortion) – see above

    • Some areas of law more likely to get frivolous claims (think of prisoner complaints)

    • Give judiciary another way to move frivolous cases through more quickly 12(b)(6) is a disfavored motion and rarely used

  • 3 key issues: is rule 9b per rule 12 properly applied?; should rule 9b be applied here; in light of opinion does 9b work?

    • Court improperly applied 9(b)


***Background Information on In Terrorem Settlements

Settlement/EV Formulas

  • EV(Plaintiff)=P(Prob. Success)*A(likely return)-C(costs of prosecuting)

  • EV (Defendant) =P(Prob. Plaintiff Success)*A(likely loss)+C(costs of trial)

  • So, lets say EV(P)=(.5)(200,000)-$30,000=$70,000

  • EV(D)=-((.5)(200,000)+$30,000)=-($130,000)

  • So, settlement range is $70-$130,000 –with perfect information they would both be better off settling in this range than going to trial – and not using lawyers. If parties are rational, they should settle for $100,000


In Terrorem Settlement

  • So, in normal cases parties calculate expected value settlement range based on probability of winning and amount they will gain if case was tried on its merits.

  • In fraud cases, P’s are often claimed to have In terrorem value, b/c D stands to lose more than damages – other extralegal factors to consider – harm to reputation, business opportunities, decreasing stock price, etc.

Heightened Pleadings for Fraud Cases – Rule 9(b)


  • Why do we have heightened pleadings for cases of securities fraud?

  • This is publicly traded company – so reputation matters for stock price

  • In securities cases – EV(D) is a little different

      • EV(D)=P*A+ C+C(through decrease in stock of publicly traded co)

  • Rule 9(b) is trying to get rid of this additional cost to defendants of extrajudicial matters—as it unfairly disadvantages the D and forces him into settlement

  • Prof. says this is fully satisfactory explanation for theory of in terrorem value and why courts have thought this in particular with cases of fraud, and so why we have distinction between pleadings for fraud (Rule 9(b) and other pleadings (Rule 8)



Cash Energy v. Weiner – p. 176


Facts: Plaintiff sought to recover cleanup costs under CERCLA (environmental) from defendants corporation. Defendants moved to dismiss under rule 12(b)(6) for failure to state a claim, arguing that these allegations were insufficient for a claim. Judge says he will dismiss claim, unless plaintiff gives more specific claims (similar to Rule 9(b)) even though there is no fraud.

Holding: Judge defends judgment by saying that Rule 9(b) already allows for exceptions of fraud, Rule 8(f) allows judges degree of discretion relating to plain statement of Rule 8, and Rule 12(e) provides for motion for more definite statement challenging vague pleadings.


  • Judge says, with time, exception for fraud of Rule 9(B) has been extend to other analogous situations – in civil rights claims, security law, RICO – so should be extended here (involves circumstances that causes courts to invoke higher standards: consequences of individual liability for environmental violation can be severe—cloud on your title immediately- so value of land goes down-long wait in court system-your response is to get rid of case at a high price, defending against non-meritorious claim can be very expensive, requiring specificity of pleading will filter out claims without merit) – POLICY REASONS



Leatherman v. Tarrant County Narcotics Intelligence – p. 171


Facts: Plaintiff sued that police violated 4th amendment rights. Lower court dismisses b/c says need heightened pleading requirement. Court of Appeals affirms. Supreme court grants certiori and reverses lower court opinions.

Holding -- Rule 9(b) does not extend to cases other than fraud, and not, specifically to claims against municipalities – courts cannot apply a heightened pleading standard that is more stringent to those required under Rule 8(a).

  • Slippery slope/Reductio ad absurdum argument – which Court of Appeals realized – infinite amount of cases that have tons of reputational harm and are subject to lots of liability. Where would you draw the line?

  • This case knocks down Cash Energy v. Weiner

Note – key issue: lower courts see liberal pleadings as unnecessary hindrance in dispensing with cases without merit – need gatekeepers to keep cases from getting in and heightened pleading requirements can do this. Supreme court says no way – must take Rule 8 on its face – if we want to change it take it to the legislature to be amended (but rules of civ. Pro are drafted by judges/lawyers – these justices are the ones drafting the rules) – tension here b/w courts. (S.C. doesn’t have docket issues, gets to pick its cases).


  • Really unpopular opinion with lower courts – still get massive resistence by lower courts with them requiring heightened pleading

  • Everyone was amazed how quickly this was decided, by 9-0 vote


Rule 3 – commencement of action – civil action is commenced by filling a complaint

Rule 41)Summons will be issued by court telling defendant that s/he’s been sued and will have to defend self, 2) system of notice that is sufficient for due process concerns, if you don’t act properly, we can’t respond to you, 3) serve summons with complaint (c), 4) plaintiff is responsible with serving defendant and also has responsibility to file with the court a document called certificate of service (letting lower court know defendant was served), 5) Rule 4(c)(2) – have to serve summons by hand, now have Rule 4(d) which says defendant can waive service of summons by hand – stupid crap here

Rule 6Time and time computation

C. Defendant’s Response

1. Pre-answer motions under Rule 12



Rule 12all defenses set out in Rules 12(b), except for failure to state a claim, objections of procedural nature:

  • 12(b)(1) – court lacks proper jurisdiction over subject matter of suit

  • 12(b)(2) – court lacks proper jurisdiction over defendant
  • 12(b)(3) – particular court is not proper location for suit


  • 12(b)(4/5) – circumstances or method of serving were incorrect

  • 12(b)(7) – suit shouldn’t go on without a necessary party



2. Failure to Answer – Default

Shepard Claims Service v. William Darrah – p. 184


Facts: Defendant’s lawyer thought it was likely that clerk had made a default entry under Rule 55(a). Thus, he suspected it would soon move to a judgment by clerk or by judge. To avoid that, he filed a notice of retention, which constituted his showing. He thought that by filing the notice of retention, if a default had been entered, it would be challengeable under the more lenient standards of 55(c) then under 60(b). Then it was up to judge to decide whether to enter a default motion under Rule 55(b)(2). The plaintiff then motioned for default judgment so it went before a judge.

Holding: Judge ruled no default judgment b/c there’s “good cause shown” Rule 55(c)

  • Default judgment deprives client of his day in court and should not be used as a vehicle for disciplining attorney’s – it is at the discretion of the trial judge to decide whether to set aside a default – and the court has a strong preference for trials on merits in federal courts
  • in determining whether failure to plead leads to a default consider 1)will Plaintiff suffer prejudice (is plaintiffs ability to process case any more difficult due to improper conduct by defendant?), 2) does defendant have meritorious claim/defense, 3) did culpable conduct of defendant lead to default (conduct of defendant must display either intent to thwart judicial proceedings or reckless disregard for effect of conduct)– always lean towards going to trial


  • Difference b/w Rule 55(c) and Rule 60(b) is that we’re more lenient in 55(c) because there is no reliance interest by either side

  • I NEED SOMEONE TO EXPLAIN THIS TO ME FURTHER. I AM CONFUSED.


Background on Rules

If defendant does not file response to pleading, then plaintiff must file an affidavit accusing default – this is Rule 55(a) (“shall” construction) – this is filed with clerk. Then there can be two types of default judgments from this: 55(b)(1) is done by the clerk – plaintiff has an affidavit showing amount due and that defendant has failed to appear, clerk’s decision is non-discretionary – clerk enters default judgment and plaintiff gets damages (“shall” construction); 55(b)(2) is done by a judge [need more info here]. 55(c)—court “may” set aside default. 55(d) – “may”


When judge is the one making decisions, the construction of the rules is “may” because the drafters of the rules had confidence that judges were best able to determine all different circumstances under which it would make sense to relieve a party of a default. When its instructions to a clerk or administrative officer, the “shall” construction is used – these are rules that are non-discretionary and mechanical in operation.
Rule 12(a) Subject to the time restrictions set forth in Rule 12(a), Defendant must file an answer. If Defendant fails to do so, Rule 55: Default Entry against Defendant

Rule 55(a) – clerk may enter a default entry for defendant’s for failure to plead or defend, but under


Rule 55(c) “for good cause shown, court may set aside an entry of default. Test for “good cause shown” is from United Coin Meter v. Seaboard Coastline


  1. will plaintiff be prejudiced?

  2. Does defendant have a meritorious defense?

  3. Did culpable conduct of defendant lead to default?

Rule 55(c) leaves to discretion of the trial judge the decision of whether to set aside an entry for default – but strong preference for trials on merits has lead to a somewhat modified standard of review where defaults are involved
Rule 55(b)(1) – Clerk enters judgment by default – administrative, mechanical process entered by clerk if party doesn’t show

Rule 55(b)(2) – Court enters judgment by default – adjudicative process

Rule 60(b) – once a default has become final as a judgment (under Rule 55(b), not Rule 55(a)) – it can only be set aside by stricter standard of Rule 60(b)

If default judgment has been issued under Rule 55(b)



Rule 60(b) – “upon such terms as are just” --

Note – Standards v. Rules -- Difference between standards and rules. Standards – easy to invoke, promulgate and low cost to do so, but it imposes costs subsequently on parties and if parties are unable to navigate standard correctly, it imposes cost of ex-post-facto review on umpire. Rules – up front internalization of cost, requires more investment by regulator to determine what desired behavior is, limit discretion of actors, try to be as fixed as possible and limit discretion of ex-post-facto umpire b/c fewer issues to be resolved like what is overall desired conduct. In the Fed. Rules. Civ Pro – “shall” means a rule.


3. The answer

a. Admitting or denying averments


  • Rule 8(b) requires a defendant, in answer, to admit or deny the averments upon which the adverse party relies. This is usually done by going down each paragraph in the complaint and stating whether it is admitted or denied. However a paragraph, even a sentence, may contain a number of different allegations (although ideally this should be avoided, see Rule 10(b) – If so, answer should indicate which portions are admitted and which are denied and they cannot be admitted or denied in toto

  • Rule 8(b)—General Rules of Pleading – Defenses – A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies….When a pleader intends in good faith to deny only part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder.



Zielinski v. Philadelphia Piers (PPI) -- Supp


Facts: Defendant sustained personal injuries from a forklift. Plaintiff contended that “forklift owned by defendant (PPI)…caused injuries”. PPI responded that it denied the charge. (While PPI had once operated the pier involved, it had transferred operation to Carload Carriers before date alleged by plaintiff, however this fact did not surface until late in process when it was too late to substitute CC as defendant b/c statute of limitations had run out). Plaintiff is requesting that defendant (PPI) be foreclosed from denying that they owned the forklift that hurt him (even though they didn’t) – basically asking for jury to be lied to.

Holding: Court held that PPI would not be allowed to deny that it operated the Pier at time of accident b/c discovery responses failed to alert plaintiff to problem; and failed to comply with Rule 8(b) b/c PPI was aware that accident had occurred, just knew that they didn’t own it anymore – PPI was acting strategically, so court would not allow that


  • Defendant should have denied parts of this paragraph (their ownership of pier) while specifically admitting other parts and this would have warned the plaintiff that he had sued the wrong defendant

Note: Rule 10(b) clearly states that it is a plaintiffs responsibility to put all averments of claim in numbered paragraphs the contents of which shall be limited to a statement of single sets of circumstances

  • In this case, plaintiff didn’t really comply with this – should have broken down the paragraphs into more detailed sub-categories. Then defendant would have had to affirmed/denied ownership in different paragraph from remaining claims. Rules put the burden on the plaintiff to clarify this

  • So, screw-up was the plaintiffs in this case. Plaintiff’s lawyer also screwed up handling the interrogatories.

  • So none of the missteps of the defendant, in isolation (according to Issacharoff) would merit discipline, certainly not an instruction to lie to the jury (counterfactual instruction) – so it has to be the combination of all these things and the repeated playing at the edge by PPI, the fact that it knew statute of limitations was running out, failure to call and tell plaintiff that he was suing the wrong party

  • So, again court uses the 3-part test here

    • Is there prejudice? (yes, plaintiff can’t bring action against the correct party b/c statute of limitations has run out, plaintiff is adversely affected by something that is not based on merits of the case)

    • Is there a meritorious claim? (yes, clearly a complaint)
    • Is there bad faith? (Judge says no, but prof thinks clearly yes, otherwise PPI would have told plaintiff who proper defendant was; just b/c PPI had a relationship with CC that it did not tell plaintiff)




David v. Crompton & Knowles – p. 192


Facts -- Plaintiff is suing C&K for personal injury from a shredding machine (supposedly manufactured by C&K) that was sold to Plaintiff’s employer. C&K answered that it didn’t have knowledge to admit/deny allegations; after a period of time they sought to amend their answer to deny that it manufactured the machine.

  • Rule 8(b) allows parties to state that they lack sufficient information to respond and then it has the effect of a denial. However, a party must be honest in denying sufficient information, and if the matter is one the defendant should have had knowledge about, it cannot deny that it did

Holding: Terms of agreement which determined whether C&K were responsible were peculiarly within the control and knowledge of C&K (as a party to the agreement), thus it is not burdensome to require C&K to have this knowledge – so under Rule 8(b) lack of knowledge here did not equal a denial, but an admittal.

  • So, now we have to see if the defendant can amend a complaint under Rule 15(a). Is there prejudice to the other party? Yes! In this case, to allow an amendment would penalize the plaintiff who is without fault and would leave him without possible remedy for very severe injuries as statute of limitations has run; so prejudice to plaintiff justifies the denial of a right to amend when the defendants incorrect answer gave the plaintiff no reason to believe that it had sued the wrong defendant

RULE: if a defendant has knowledge or information, or knowledge or information is within its control to determine, an averment permitted under Rule 8(b) will not be considered a denial of the complaint, but in fact, will be considered an admission


  • If initial answer is deemed an admission (b/c party should have had knowledge), then their request to amend necessitates the judge deciding whether an amendment will effect the plaintiffs right to recovery – and if so whether it should be allowed.

  • Rule 15(a) provides that leave to amend an answer should be given freely – liberal attitude towards this to encourage decision of case on the merits

  • Denial of request to amend – is commonly allowed when 1) amendment will result in undue prejudice to the other party, or 2) amendment has been unduly delayed

  • If initial answer is not deemed admitted, then its considered denied and amendment only serves as clarification

Rule 8(b) (cont). – General Rules of Pleading – Defenses – If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.


Summary of incentives of defendant responses


Shepard – if you don’t comply with the rules, you will be at risk of adverse conduct against you if there is prejudice to the plaintiff as a result of your behavior (in this case, no prejudice, so we’ll let you do it as we want to try the case on its merits)

Zielinski – if we do find prejudice, we will impose a great penalty (a counterfactual instruction to the jury) here because where there is prejudiced we suspect strategic behavior, even if not technically egregious violation of the rules

David v. C&K – even if you don’t act strategically, but there is prejudiced, we may punish you in a draconian fashion. No longer permissible for defendant to say “whatever” – obligation on defendant is to acquire information, because if you do not acquire information within your control, and prejudice ensues – you may be held responsible even in something as extraordinary as counterfactual instruction

Summary 1) we assume the defendant has more information, at least on information/history of themselves and their liability (which plaintiff doesn’t have access to); 2) it is not permissible for the defendant to be vague – obligation is on the defendant now to acquire information, b/c if you don’t acquire the information which is within your control and prejudice ensues, you may be held responsible even in something as extraordinary as counterfactual situation, 3) when defendant says I have no way of knowing, then plaintiff has no way to find information and discover whether issue is possible – burden must be on defendant

b. Affirmative Defenses


  • Responsive pleading must affirm or deny each averment upon which the adverse party relies through Rule 8(b)

    • But there are times when admitting or denying is inadequate – i.e. party may be willing to admit factual allegation, but contend that there is a justifiable reason (under law) for the action – under common law “confession and avoidance”

    • This is different from a denial b/c it does not seek to deny an element of the opposing party’s case, but sets out affirmatively a new issue that goes beyond disproving the leemnt.

    • Affirmative defenses must be “set forth affirmatively” under Rule 8(c)

  • Policies affecting burden allocation – statutory language may be helpful or even determinative as to whether a matter is an affirmative defense, but also policies that allocate pleading burdens when language is not clear
  • *If an affirmative defense is not pleaded, the issue is not in the case, and evidence relating to it is not admissible at trial (unless such evidence is independently relevant to an essential element of the case).


    • There does not have to be a reply to a pleading of an affirmative defense, and allegations are taken as denied by the opposing party

  • Relation to motion for judgment of pleadings

    • If defendant has admitted essential allegations of plaintiffs case, and has not pleaded an affirmative defense – plaintiff may file a Rule 12(c) motion for judgment on the pleadings, which would test the legal sufficiency of pleadings, just as Rule 12(b)(6) tests the legal sufficiency of the complaint.

    • If defendant pleads an affirmative defense, the plaintiff may make a motion for judgment on the pleadings and ask the court to determine whether the complaint makes out a prima facie case, since defendant has admitted essential facts, the court can deem the defendant’s purported affirmative defense legally insufficient. And then it may strike it down on a Rule 12(f) – and with the defense gone, grant plaintiff judgment on the pleadings

  • Statute of Limitations



c. Counterclaims

Wigglesworth v. Teamsters Local Union – p. 199

Facts: Plaintiff files complaint in federal court under Labor Mgmt. Disclosure act alleging that the union and its president violated his rights protected by the act by preventing his freedom of speech in meetings. Defendants denied allegations and filed counterclaim Rule 13 alleging libel and slander for plaintiffs comments at a press conference months later. Plaintiff now files a motion to dismiss the counterclaim Rule 12(b)(7) for lack of subject matter jurisdiction, since Teamsters v. Wigglesworth (defendants counter-claim) would not have independent federal jurisdiction.


Issue: Can defendants counterclaim be filed in same jurisdiction? To do so in federal court, it must be a permissive counterclaim and arise out of the same transaction or occurrence that is subject matter of plaintiff’s claim? No. Dismissed.

Holding: There is no connection between events giving rise to counterclaim asserted by defendant and transaction which plaintiffs claim is based on. Different evidence would be used in court (Subject of plaintiffs claim is alleged wrongful conduct of defendant at union meetings, defendants counterclaim is predicated on events which do not give rise to plaintiffs claim – grounded on words allegedly spoken by plaintiff months after union meeting in plaintiffs complaint with no indication that remarks had any relationship to events which transpired at past union meetings), so permissive counterclaim, and thus dismissed b/c no independent jurisdiction by federal courts. .

Rule: Rule 13(a) – Compulsory Counterclaims –a pleading is a counterclaim if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim”

Rule 13(b) – Permissive Counterclaims – a pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

  • Compulsory counterclaims are ones that are ancillary to initial claim and can be tried in the same court (even if jurisdictional requirements would not otherwise be met) – do not require absolute identicalness of factual background of two claims, but logical relationship between them. – “arise from same transaction” – which is flexible and can comprehend a series of cocurrences, depending not so much on immediateness of connection as upon factual relatoinship.


  • Permissive counterclaims are unconnected with transaction out of which primary claim arose and independent jurisdictional grounds are required.

  • Test for distinguishing – Bose Standard – if same evidence would substantially dispose issues raised by opposing claims, than counterclaims are compulsory, if not they are permissive


Note: Prof says this is a tough case. Realistically, court is probably wrong and there probably is the same evidence – plaintiff is going to show that they beat him up, it is their standard practice, this is part of a bigger societal problem and pattern of practice of the mob. Mob is be proving that Wigglesworth said bad things about them and so libeled them, only way Wigglesworth will be able to defend against this is to say its not defamation b/c things I said were true – they’re part of the mob, pattern of practice, etc. So technical exercise of case by court seems wrong, however they probably thought that mob was only doing this to harass Wigglesworth and confuse the jury – so they wanted to dismiss.

Note: Challenges as to subject matter jurisdiction can be heard at any time – most protected defense and can be raised by judge in the middle of a trial
Note: If this had been deemed a compulsory counterclaim, but teamsters didn’t raise the issue during this trial, then they couldn’t sue in subsequent lawsuit b/c Wigglesworth could claim res judicata under affirmative defense rule 8(c). Affirmative defenses don’t go to the merits – even if you’re right on the merits, there’s another reason why you shouldn’t prevail. So even if you Teamsters could have recovered on the facts, they didn’t raise them in the previous case, so they can’t raise them now.
  • B/c of this rule, as a lawyer, you advise your client to file a counterclaim just in case…so as a lawyer you need to ask not just what are your defenses, but what might be your conceivable claims down the road that against Wigglesworth that might be seen as transactionally related – b/c if you fail to bring them now, you may be barred from bringing them later b/c of res judicata


  • Transactional idea is difficult to determine ahead of time, depends upon what trial looks like, and its hard to determine what trial will look like in early stages. But, if we get it wrong it can have huge consequences for our client.

  • This creates uncertainty at threshold level, which is a risk, systematic cost of both of these – we incentivize parties to raise claims they truly have no intention of litigating down the road b/c they are afraid of being foreclosed from doing so

  • So in order to address threshold problem, we have to look at the back-end and reason our way back to the beginning.


D. Voluntary Dismissal


  • Common law plaintiff had right to voluntary dismissal without prejudice at any time before judgment

  • Today however, we know that a liberal voluntary dismissal rule can cause needless expenditures of judicial resources and impose burdens on defendant in defending against a suit that is ultimately withdrawn. (part of reason plaintiff may do this is that he is then free to file particular suit in another court in modified form)

    • Some states still afford plaintiff a broad right to dismiss

    • But Rule 41(a)(1) reflects a policy that voluntary dismissal should be limited to the early stages of litigation

    • Rule 41(a)(2) calls for exercise of judicial discretion in all other situations, providing that action shall not be dismissed without prejudice

    • Once plaintiff has filed a notice of dismissal, it may not withdraw or amend the notice.

E. Amendments to Pleadings

  • Amendments to pleadings are necessary as case is investigated and prepared for trial – as depending on complexity of case and difficulty of access to information, pleadings are sometimes made when very little is known about the event.


  • Rule 15 reflects this liberal approach to pleading

  • Liberal approach however has its own costs. Parties may rely on pleadings of their opponents believing that they are facing only claims alleged and therefore may forgo investigation into matters that are not pleaded. So there are some limitations on liberal pleading rule.

1. Permission to Amend

David v. Crompton & Knowles – p. 207


See above.



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