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CIVIL PROCEDURE CLASS 8

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Controlled Environment Systems v. Sun Process Co., Inc. ... FRCP 15 - Bear in mind that local rules may contain additional limitations or ... – PowerPoint PPT presentation

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Title: CIVIL PROCEDURE CLASS 8


1
CIVIL PROCEDURE CLASS 8
  • Professor Fischer
  • Columbus School of Law
  • The Catholic University of America
  • Sept. 18, 2001

2
WRAP-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) )

3
WHAT 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.

4
3 PLEADING OPTIONS IN ANSWER
  • Admit
  • Deny
  • Deemed Deny

5
ADMISSIONS
  • 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

6
DENIALS
  • 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

7
DEEMED 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)

8
Greenbaum 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)?

9
Controlled Environment Systems v. Sun Process
Co., Inc.
  • What was the problem with the plaintiffs
    pleading in para. 10 of the answer to
    counterclaim?

10
DEEMED 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)

11
AFFIRMATIVE 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?

12
UNENUMERATED AFFIRMATIVE DEFENSES
  • How does the D know if something is an
    affirmative defense or not?

13
UNENUMERATED 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

14
CONSEQUENCE OF FAILING TO PLEAD AN AFFIRMATIVE
DEFENSE
  • What happens if D fails to plead an affirmative
    defense?

15
CONSEQUENCE 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

16
BURDEN OF PROOF FOR AFFIRMATIVE DEFENSES
  • Who bears the burden to prove an affirmative
    defense?

17
BURDEN 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

18
RESPONDING TO AFFIRMATIVE DEFENSES
  • How should plaintiff respond to an affirmative
    defense?

19
RESPONDING TO AFFIRMATIVE DEFENSES
  • All affirmative defenses are AUTOMATICALLY DENIED
    under 8(d). No response is required.

20
AMENDMENT
  • Why would a party wish to amend his pleading?
  • What federal rule rule governs amendment?

21
AMENDMENT
  • 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

22
DO YOU NEED THE COURTS PERMISSION TO AMEND?
23
DO 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.

24
AMENDMENTS 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?

25
AMENDMENTS 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.

26
AMENDMENT 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?

27
LEAVE 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.

28
ANOTHER 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.

29
STILL 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?

30
COSTS 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.

31
AMENDMENT 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?

32
WHAT 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.

33
AMENDMENTS 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?

34
When will an amended claim relate back?
  • What is the applicable provision of the FRCP?

35
FRCP 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!

36
FRCP 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.

37
IMPORTANT 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).

38
CASE 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?

39
CASE 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?

40
A 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?

41
HYPO 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?

42
ANOTHER 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?

43
SUPPLEMENTAL 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?

44
TIME LIMITS FOR RESPONDING TO AMENDED PLEADINGS
  • How long does a party have to respond to an
    amended pleading?
  • What is the governing FRCP?

45
PRACTICE EXERCISE NO. 9CB 259
  • (a) What effect will the admissions in paragraphs
    4 and 5 of Randall Dees answer have on the trial?

46
PRACTICE EXERCISE 9
  • (b) Assuming that the defendant has reasonable
    knowledge, is the answer to paragraph six in
    compliance with the applicable Massachusetts
    rules?

47
PRACTICE 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?

48
PRACTICE 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?

49
PRACTICE 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?
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