Title: CIVIL PROCEDURE CLASS 8
1CIVIL PROCEDURE CLASS 8
- Professor Fischer
- Columbus School of Law
- The Catholic University of America
- Sept. 18, 2001
2WRAP-UP OF LAST CLASS
- Service and filing requirements for Answers (Rule
5) - Pleading requirements for Answers 8(b)-(e)
- Only types of responses in Answer Admissions,
denials, deemed denials, 12(b) defenses,
affirmative defenses (8(c) )
3WHAT WILL WE DO TODAY?
- We will continue to examine admissions, denials
and deemed denials - We will discuss amendments and FRCP 15. Time
permitting, well discuss relation back. - We will discuss Practice Exercise 9.
- We will end this class early (at 745) to enable
any students who wish to do so to attend the 800
p.m. University candlelight vigil for the victims
of last Tuesdays tragic events.
43 PLEADING OPTIONS IN ANSWER
5ADMISSIONS
- 8(b) - Can make specific admissions
- 8(d) - Anything not denied is deemed admitted -
SO BE CAREFUL! - Exception - where an answer would subject a party
to criminal charges, the 5th Amendment of the
U.S. Constitution protects him
6DENIALS
- 8(b)- D need only deny allegations in the
complaint that she actually disputes. Its
typical to deny entire paragraphs but that is not
always appropriate - see UNUSUAL Zielinski case
(E.D. Pa. 1956) (see at http//classes.washburnla
w.edu/lass/coursemat/2000fall/cases/Zielinski_v_Ph
iladelphia.htm) - Specific Denial - deny particular portion of a
claim (see Rule 9 for some matters that must be
specifically denied) - General Denial - deny each and every averment of
Complaint
7DEEMED DENIALS
- Effect of pleading that D is without knowledge
and information sufficient to form a belief as to
the truth of an averment. - How much inquiry must a D make prior to pleading
a deemed denial? See Greenbaum v. U.S. (E.D. Pa.
1953) Controlled Environment Systems v. Sun
Process (N.D. Ill. 1997)
8Greenbaum v. U.S.
- What was substantive dispute?
- What was the procedural issue?
- How did the E.D. Pa. Resolve this procedural
issue? - Didnt court disregard anti-waiver provision of
12(h)(3)?
9Controlled Environment Systems v. Sun Process
Co., Inc.
- What was the problem with the plaintiffs
pleading in para. 10 of the answer to
counterclaim?
10DEEMED DENIALS
- 1. One can lack knowledge but still have enough
information to form a belief under 8(b) - 2. Denials containing the phrase on information
and belief is generally accepted but is not
recognized as a denial by 8(b)
11AFFIRMATIVE DEFENSES
- Some defenses must be affirmatively pleaded
under 8c - 1. ENUMERATED E.g. contributory negligence,
fraud, res judicata - 2. UNENUMERATED Also any other matter
constituting an avoidance or affirmative defense - CONCEPT Is D relying on some new facts that
would come as a surprise at trial?
12UNENUMERATED AFFIRMATIVE DEFENSES
- How does the D know if something is an
affirmative defense or not?
13UNENUMERATED AFFIRMATIVE DEFENSES
- How does the D know if something is an
affirmative defense or not? - Research - there may be relevant court opinions
- D may be able to construe statutes to discern
whether language gives rise to affirmative
defenses
14CONSEQUENCE OF FAILING TO PLEAD AN AFFIRMATIVE
DEFENSE
- What happens if D fails to plead an affirmative
defense?
15CONSEQUENCE OF FAILING TO PLEAD AN AFFIRMATIVE
DEFENSE
- The defense will be waived, unless the court
allows amendment - In determining waiver, courts will examine
- 1. whether P had knowledge of the facts
- 2. Prejudice to P resulting from failure to
plead - If wrongly plead as counterclaim, court will
relabel as affirmative defense
16BURDEN OF PROOF FOR AFFIRMATIVE DEFENSES
- Who bears the burden to prove an affirmative
defense?
17BURDEN OF PROOF FOR AFFIRMATIVE DEFENSES
- Party raising the affirmative defense must prove
it at trial - NOTE THAT AFFIRMATIVE DEFENSES GERNERALLY SHIFT
THE BURDEN OF PROOF ON THAT DEFENSE
18RESPONDING TO AFFIRMATIVE DEFENSES
- How should plaintiff respond to an affirmative
defense?
19RESPONDING TO AFFIRMATIVE DEFENSES
- All affirmative defenses are AUTOMATICALLY DENIED
under 8(d). No response is required.
20AMENDMENT
- Why would a party wish to amend his pleading?
- What federal rule rule governs amendment?
21AMENDMENT
- Why would a party wish to amend his pleading?
Events have changed since original pleading
filed, new factual information as a result of
discovery gives rise to new claims/defenses - What federal rule rule governs amendment? FRCP 15
- Bear in mind that local rules may contain
additional limitations or requirements for
amendment of pleadings
22DO YOU NEED THE COURTS PERMISSION TO AMEND?
23DO YOU NEED THE COURTS PERMISSION TO AMEND?
- Sometimes some amendments may be made without
leave (permission) of the court, others require
leave of the court. - 1. A pleading can be amended ONCE as a matter of
course at any time BEFORE A RESPONSIVE PLEADING
IS SERVED see Rule 7(a) for information on
responsive pleadings - 2. A pleading can be amended without leave WITH
WRITTEN CONSENT OF THE ADVERSE PARTY.
24AMENDMENTS WITHOUT LEAVE OF COURT - 15(a)
- Doris Defendant serves her answer on Paul
Plaintiff on October 2 and files it on October 3.
Can she amend without leave on October 19?
25AMENDMENTS WITH LEAVE
- All other amendments (other than those described
on the last slide) require leave of the court or
WRITTEN consent of adverse party (15(a)) - BUT REMEMBER Rule 15(a) -- leave shall be
freely given where justice so requires.
26AMENDMENT HYPO
- Jane serves a complaint on Roger in federal court
alleging negligence. After Roger serves his
answer, Jane wants to amend her complaint to add
a claim for breach of contract. Roger refuses to
consent to the amendment. Jane files a motion
with the court seeking leave to amend. What is
Janes burden on the motion? What is Rogers
burden?
27LEAVE TO AMEND IS FREQUENTLY GRANTED
- Leave will generally be granted UNLESS
- 1. The amendment would unfairly PREJUDICE the
other party. - 2. The party seeking amendment is guilty of
unjustified DELAY. (Note that chances of
successfully amending go down the closer you get
to trial). - 3. The party is seeking amendment in BAD FAITH.
- 4. The amendment would be FUTILE.
28ANOTHER AMENDMENT HYPO
- Sylvester sues Tweetie for personal injuries.
After Tweetie serves his answer, Sylvester wishes
to amend his complaint to add a claim for libel.
Sylvester faxes Tweetie a copy of the draft
amendment, then calls Tweetie up and asks Tweetie
if he will consent to the amendment. Tweetie
says, sure. Advise Sylvester as to whether he
needs to do anything more to ensure the amendment
is valid.
29STILL ANOTHER HYPO
- Polly sues Dave and Doug for intentional
infliction of emotional distress. Dave serves
his answer 10 days after the complaint is served
on him. Doug files a Rule 12(b)(2) motion to
dismiss 5 days after the complaint is served on
him. Polly wants to amend her complaint to add a
claim for breach of contract against Doug. Can
she amend without leave of the court?
30COSTS OF AMENDMENT
- FRCP is silent on this BUT it is well accepted
that a court can require the amending party to
pay the other partys costs arising from the
amendment.
31AMENDMENT AT TRIAL
- Sometimes a party, at trial, introduces evidence
that relates to causes of action that are not
pleaded. What should the other party do, if this
occurs? - What federal rule governs amendment in this
situation?
32WHAT IS THE RELATIONSHIP OF RULES 15(a) and 15(b)?
- 15(b) is more appropriate if suit has reached
trial or post-trial stage - BUT motions to amend can be made at any time
under 15(a) - In practice, courts are willing to grant
amendments under either provision UNLESS there is
PREJUDICE, DELAY, BAD FAITH, or FUTILITY.
33AMENDMENTS AND THE STATUTE OF LIMITATIONS
RELATION BACK
- Whats a statute of limitations? Whats the
purpose of this? - How do you figure out what the statute of
limitations is for a state cause of action? How
about a federal one? - RELATION BACK --ISSUE When will an amended
pleading be treated as having been filed at the
same time, for the purposes of the statute of
limitations, as the original pleading?
34When will an amended claim relate back?
- What is the applicable provision of the FRCP?
35FRCP 15(c)
- An amended claim will relate back to the
original pleading where - 1. The claim or defense in amended pleading
arose out of the same CONDUCT, TRANSACTION, OR
OCCURRENCE as set out in the original pleading
15(c ) (2) - 2. The APPLICABLE LAW ON THE STATUTE OF
LIMITATIONS allows relation back. 15(c ) (1) - 3. If you are amending to add NEW PARTIES or
CHANGING NAME OF PARTY, (1) above applies AND it
is not unfair to relate back because the special
conditions in 15 (c ) (3) apply. - DONT FORGET THAT GENERAL RULES FOR AMENDMENTS in
15(a) or (b) STILL APPLY!
36FRCP 15(c ) (3) Amendment Changing Parties in
Complaint Will Relate Back If
- Within the 120 day service deadline period under
4(m), the party to be added - 1. Has notice of the action and will not be
prejudiced in her defense AND - 2. Knew or should have known that the action
would have been brought against her if there had
not been a mistake - AND 3. 15( c) (2) applies.
37IMPORTANT PREREQUISITE FOR RELATION BACK
- Before there can be relation back, the party
seeking amendment must convince court that
amended pleading is permitted under FRCP 15(a) or
(b).
38CASE LAW ON RELATION BACK - Worthington v. Wilson
- State or federal court?
- Whats the procedural history?
- What is the procedural issue that this court must
decide? - How does the court rule on this issue?
- What is the courts reasoning?
39CASE LAW ON RELATION BACK Christopher v. Duffy
- What court are we in?
- What is the substantive legal dispute in this
case? - What is the procedural issue that the court must
decide? - How does the court rule on this issue?
- What is the courts reasoning?
- What is the courts holding?
40A Comparison of federal and state law on relation
back - MA
- In Christopher v. Duffy, the applicable
procedural rule was Mass. R. Civ. P. 15. - How does this differ, if at all, from FRCP 15 (c
)? - What difference would it have made to
Christopher v. Duffy if FRCP 15 ( c) applied? - Which is a better rule, in your opinion? Why or
why not?
41HYPO ON RELATION BACK
- Jim, a pedestrian, brings a claim in negligence
against Barry, the driver of a car that struck
him. Jim moves to amend to add a claim that
Barry negligently failed to stop and render
appropriate aid at the scene of the accident. If
granted, will this amendment relate back under
Rule 15 (c )? Why or why not?
42ANOTHER HYPO
- Erik is angry about a statement made by Prof.
Fischer in a class hypothetical on 9/27/00. He
commences a libel action on 9/12/00 naming
Marianne Fischer as D in his complaint. Erik
serves the complaint by personal service on Prof.
Fischer at the law school on 9/15/00. Assume the
statute of limitations is 1 year. Erik learns
that Professor Fischers first name is not
Marianne but Susanna. On 9/18/00 Erik moves
to amend his his complaint to change the
defendants name to Susanna. Will the
amendment relate back?
43SUPPLEMENTAL PLEADINGS
- When and why would a court permit service of a
supplemental pleading? - What rule governs supplemental pleadings?
- MUST a party serve a supplemental pleading?
44TIME LIMITS FOR RESPONDING TO AMENDED PLEADINGS
- How long does a party have to respond to an
amended pleading? - What is the governing FRCP?
45PRACTICE EXERCISE NO. 9CB 259
- (a) What effect will the admissions in paragraphs
4 and 5 of Randall Dees answer have on the trial?
46PRACTICE EXERCISE 9
- (b) Assuming that the defendant has reasonable
knowledge, is the answer to paragraph six in
compliance with the applicable Massachusetts
rules?
47PRACTICE EXERCISE 9
- C. What does the denial to the allegations in
paragraph eleven put in issue? Assuming that
further stages of the case (such as discovery,
summary judgment, pretrial conference) do not
bring closure to the issue and that it remains as
defined by the pleadings, how will the judge
instruct the jury on the question of conscious
suffering, including instructions on the burden
of proof?
48PRACTICE EXERCISE NO. 9
- (d) Examine each of Randall Dees defenses, and
explain what type of defense it is. Is it a
defense at all or a mislabeled denial?
49PRACTICE EXERCISE NO 9
- (f) If you were a legislator or judge faced with
the question, would you make the second defense
an affirmative defense? Why or why not?