Civil
Procedure Class Notes
We
will finish Fuentes then jump to the
start of the book to the survey material!
We
will recall that this case operates at two levels: it’s a consumer protection
case and it also gives us some basic due process standards. Fuentes bought her stove and stereo “on time”. There was a repair dispute, she stopped
making her payments, and Firestone tried to replevin her stuff. Firestone filled out a form and posted a
bond. They got a writ of replevin, took
it to the sheriff, and the sheriff took back Fuentes’s stuff.
We
get from this case a statement of what process is due to Ms. Fuentes: notice
and a hearing. But the Constitution
doesn’t say exactly what type of notice or hearing is necessary. Not every deprivation will be subject to the
same level of due process.
One
requirement is that the notice and hearing must be provided in a reasonable
time and in a reasonable manner.
But
there are exceptions. Even though the Court
says that you must have notice for a hearing, sometimes there are situations
where there is a need back on exigency where there’s such a strong need that we’ll
make exceptions.
1. There must be
an important governmental or general public interest.
2. There must be
a special need for prompt action, and
3. It must be initiated
by the government itself.
Think
about this with respect to the temporary restraining order rule we looked at last
week. Sometimes you can get injunctive
relief without a hearing. Are temporary
restraining orders constitutional? Temporary
restraining orders require immediate and irreparable injury, thus a special
need for prompt action. If you can meet
that standard, you’ve met one prong of the constitutional test for deprivation
without a hearing.
What
about the other parts of the test? If a judge
grants a temporary restraining order, that makes that temporary restraining
order “government-initiated”.
The
important need is satisfied by the “immediate and irreparable” test.
You
can look at Fuentes two ways: “Fuentes small” and “Fuentes grande”.
“Fuentes small” says that pre-judgment seizure
of a debtor’s property without notice and the opportunity for a hearing is unconstitutional. As a result of this, states must change their
statutes to provide for hearings before people are deprived of their property.
If
Firestone has to comport to this new policy, they’ll have to hire more
lawyers! The cost of these potential
future hearings increase! States enact
review processes allowing for administrative or judicial hearings and the
expected cost of these hearings just get rolled into the cost of credit. People will just have to pay higher interest
rates! Also notice that very few people take
advantage of the procedure.
“Fuentes grande”
says that notice and a hearing are the bedrock of due process.
It’s
another balancing test! It’s a balance
between what’s efficient (the replevin process) and what’s fair (having some
way to judge whether the procedure could be in error). The Court sides with fairness in this
case.
Goodbye
to provisional remedies!
We
have been looking in this unit so far as “decisions to litigate”. One factor is “what you will get?” The other is “how will you get paid?”
Once
you decide to litigate, you choose a forum.
This involves personal jurisdiction,
subject matter jurisdiction, venue,
Erie, and choice of law. Okay, we’ve got the right court and the right
law, so now we’re going to file a complaint, which involves Rules 8 and 11.
Bridges v. Diesel Service,
Inc.
This
is a Rule 11
case.
Rule
11(b) says:
By presenting to the court (whether by signing,
filing, submitting, or later advocating) a pleading, written motion, or other
paper, an attorney or unrepresented party is certifying that to the best of the
person's knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances,--
(1) it is not being
presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal
contentions therein are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions
have evidentiary support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual
contentions are warranted on the evidence or, if specifically so identified,
are reasonably based on a lack of information or belief.
What
this rule says is that you have an obligation, as an attorney, to sign every
piece of paper that’s ultimately filed in the court, like pleadings and
motions. How come?
By
signing the stuff, you are certifying that what you say in that document has
been formed after a reasonable inquiry, that it’s not being used for improper
purposes (harassment or delay), and that your claims are warranted by existing law
or a good-faith effort to change the law.
When
you sign papers, you are promising that you’ve done your research and you have
a good-faith basis to make the motion you’re making.
The
stuff in the papers must also have evidentiary support, and your contentions
must be warranted by the evidence.
When
you sign stuff, you certify that you’ve “stopped, looked, and listened”. You assert that there’s proof for the
stuff you’re going to say in your pleading.
“Stop! Think! Investigate!
Research!”
What
are the facts of Bridges? The plaintiff filed an
Why
did the attorney screw up here? Was the attorney
just dumb? Maybe the attorney didn’t
know in the first place that he must exhaust administrative remedies
first. This guy is a junior lawyer. Everything a junior lawyer touches is
something new, and you might screw up.
Having
a “pure heart” and “empty head” is no defense.
What’s
the procedural posture in this case?
This is a sanction motion.
The lawsuit was filed. The defendant
files a 12(b)(6) motion (failure to state a
claim). The motion was granted. Then the defendant filed a motion for
sanctions. “You’ve wasted my time and I
want to be paid for it!” Rule 11 provides
for possible (not mandatory) sanctions for not “stopping, looking, and
listening”. We can go after the attorney,
the firm, or the party.
What
if you were Bridges and you got sanctioned?
What would you do?
Typically,
sanctions are imposed on attorneys.
Individual parties can also be sanctioned by the court. It’s possible that you as an attorney can
take your clients down with you for Rule 11 violations,
especially if the court decides that the party was complicit in violation of Rule 11. Say, for example, your client lies to you and
you file motions on that basis. You
should have caught that and thus you have violated Rule 11, but the
court may sanction the party too for their part.
In
this case, there is a Rule 11 violation,
but no sanctions are imposed. This court
is decides to admonish the lawyer not to do it in the future.
The
best way to avoid sanctions is to not sign stuff! Get someone else to sign it! In complex litigation, they sanction the firm
instead. Some things you will not be
able to avoid signing. A better way to
follow Rule 11
is to not screw up. Do your
research!
Here’s
a Rule 8 case! There’s an auto accident. We’re in
Where
do we sue? It was originally filed in
state court, and then the defendants remove the case to federal court based on diversity
jurisdiction. Now what do the defendants
do? The defendants try to get the suit
dismissed because the complaint wasn’t detailed enough under
So
what does the complaint look like? What
did the defendants say was wrong with it?
You don’t really know what each of the individual defendants allegedly
did wrong. We don’t know what the link
is to the owner or operating company.
Even more significantly, we’re not told what type of negligence was
involved. Why doesn’t it say that?
Under
the federal rules, the pleading is governed by Rule 8. You have to provide “a short and plain
statement of the claim showing that the pleader is entitled to relief”. This is notice pleading. All you have to do is put the other party on
notice of the accident such that they can form a response to the
complaint. Is it likely that the defendants
were involved with the plaintiff in a different accident in a different place
on that day? No! Everybody knows what accident we’re talking
about. The plaintiffs don’t have to
explain their legal theory.
In
contrast, what did
Look
at FRCP Form 9! This complaint is clearly okay.
There
are exceptions: Rule
9(b) says that in cases of fraud of mistake, claims will be stated with “particularity”. That’s heightened pleading! It’s the bane of Fairman’s
existence!
Notice
that if the defendants hadn’t removed, the complaint would have been
insufficient under
We
have a state rule in conflict with a federal rule. Doesn’t that make this an Erie question? Sure!
What’s the Erie answer? Is there a federal rule on point? Yes! Rule 8! What does the most recent Supreme Court
authority tell us to do with a federal rule on point? Use it, unless it’s unconstitutional. If there’s a federal rule on point, we will
use it.
What
is the relationship between Rule 8 and Rule 11? Rule 8 tells us that
your complaint need only have “bare allegations”, while Rule 11 requires
you to have investigated and have evidentiary support for your factual
allegations. From the plaintiff’s
standpoint, when I sign a complaint, I’m supposed to have done all the
investigation necessary to support my complaint. But I don’t need to put that research into
my complaint! There might thus be a
tendency on the part of the plaintiff to cut corners and ultimately violate Rule 11. The rules are in tension with each other!
So
we’re talking about the standard in pleading…notice pleading! But what about heightened
pleading? Fairman going to
try to tell us that notice pleading is a myth! Notice pleading is the rule, but
Fairman is going to give us a more sophisticated way of looking at pleading in
the federal courts.
Chucky
Wright suggested to Fairman in 1992 that he check out Leatherman
and heightened pleading. He knows
more about heightened pleading than anyone in the whole world!
What
level of particularity is required in a pleading under Rule 8? After the rules were adopted, there was
resistance by the federal courts to adopting the federal rules. The federal courts used to use the procedural
rules of the state in which they sat. So
Rule 8 was
subject to judicial screwing around.
Conley
v. Gibson
asserted that Rule 8
only required notice pleading. This is
the case out of which notice pleading is born!
To
understand the importance of this decision, you must look at Rule 8 in relation
to the other Rules. Wright called Rule 8 “the keystone”. It’s easy to sue people: you give them
notice. Everything else in procedure is
designed to “winnow down the issues” to just those things that will be tried on
the merits. You join up people, you “discover”
which claims have merits, and then you go to trial or settle or get summary judgment.
There
is an exception, though, in Rule 9(b) where
there are particularity requirements for fraud.
This rule basically got in by tradition!
Fairman thinks it should be abolished!
Leatherman calls this conflict in this question. These cases involve police officers abusing
civil rights through drug investigations.
There was a drug “task force” in north
The
city moved to dismiss based on the heightened pleading standard imposed by the Fifth
Circuit for civil rights cases. The Fifth
Circuit decided that civil rights cases are “fraud-like”. They are easy to allege, difficult to defend,
expensive, and difficult to get out of.
The Circuit decided that civil rights cases should be treated
differently. The Supreme Court finds
that the rules do not include heightened pleading for civil rights cases, and
so they strike down the Fifth Circuit decision.
Post-Leatherman, fraud cases require heightened pleading,
while civil rights cases only require notice pleading. But what about other kinds
of cases?
It
turns out that under the Private Securities Litigation Reform Act, you had to
allege specifically what statements were misleading and you had to state all
the facts. Also, if there was a scienter requirement, you must state that with
particularity and state facts. Congress
is free to make rules governing procedure in the federal courts. The REA delegates the power to the Supreme
Court to make rules, but Congress made the REA.
This is not a power question, but rather a question of policy.
This
rule about securities fraud made by Congress actually goes against Rule 9(b)
which says you don’t have to give a detailed account of the defendant’s mental
state.
The
PSLRA makes it effectively impossible to show a defendant’s state of mind. The idea is to prevent a lawsuit every time
the price of a stock drops.
What
did Fairman find out? Civil rights
requires notice pleading, but fraud as well as the PSLRA and the Y2K Act
required heightened pleading.
The
Y2K Act basically stole the language from the PSLRA. There were two lawsuits over Y2K under
PSLRA.
However,
amazingly, various circuits continued to apply heightened pleading to civil
rights cases. The thing is that there
was a little footnote in Leatherman: they left
the door open to requiring heightened pleading against individual government
actors. In this little “crack”, many
circuits, led by the Fifth, interpreted this to mean that notice pleading is
only required for suits against cities.
Now
there are three groups of circuits. The Seventh
Circuit, the Ninth Circuit and the Tenth Circuit require no heightened
pleading. Then there’s the other stuff
and…so on.
Swierkiewicz, out of the Second
Circuit, required heightened pleading.
The Supreme Court overruled this, and Justice Thomas said that Rule 8
applies to all civil actions except for those with fraud or
mistake. You would hope that this case
will get rid of heightened pleading except for fraud.
If
only that were the case, says Fairman!
In
the Fifth Circuit, a judge had 13 civil rights cases against a city and the
court dismissed them all on heightened pleading grounds. There is some hostility between the plaintiff’s
lawyer and the judge. The ACLU doesn’t
care. They asked Fairman to write a
brief explaining why this is wrong.
Fairman is going to file the amicus brief today!
The
facts were that teenage females were arrested for traffic violations and raped
by a jailer who was 19 and not correctly trained.
These
cases impose a pleading “Catch-22”. The plaintiffs
file their initial complaint. The judge
claims that they filed too many facts in violation of Rule 8, but then the court
turned around and dismissed the complaints for lack of specificity, then they
barred the plaintiffs from amending their complaints or responding to the defendants’
12(b)(6) motion.
If
a single judge can do this, says Fairman, it jeopardizes the whole procedural
system!
These
procedural things have real implications!
People’s civil rights have been violated, and they will have no redress
unless this procedural issue is addressed.
Hopefully, all this heightened pleading stuff will come out okay.
Courts
impose factual particularity in a whole host of cases like RICO, antitrust,
CERCLA, conspiracy, defamation, copyright and even negligence claims. Even heightened pleading is undefined! It has various meanings to different courts.
In
antitrust, there are a lot of different applications of heightened
pleading. The opposite of notice
pleading is hyperpleading, which is the very
worst! But also, you can have the prolix
complaint. A 350 page complaint with 20
boxes of appendicies is too damn much.
There
is extreme variation in pleading.
The
McDonald’s fat kids cases were dismissed on heightened
pleading grounds. It was a consumer
protection case.
The
issue seems to be whether you should use heightened pleading for anything that’s
“fraud-like” or only when there’s something that’s exactly fraud, nothing more
and nothing less.
The
major motivation for heightened pleading is probably the deterrence of
frivolous lawsuits. Fairman says that
this is an overreach of judicial power.
What
really doesn’t make sense about Rule 9(b) is its application to states of
mind. How can you apply heightened
pleading to the state of mind of defendants in other areas when you can’t apply
it that way in fraud cases? That’s Fairman’s chief complaint.
So
we’ve filed the complaint, and now we’re ready for preanswer
motions under Rule 12 or the answer under Rule 8. There may also be a combination of both. We’re gone through Rule 12(b) before:
1. Subject matter
jurisdiction
2. Personal jurisdiction
3. Venue
4. Process
5. Service of
process
6. Failure to
state a claim
7. Failure to
join a party under Rule 19
If
you don’t raise 2-5 at your first opportunity, they’re dead and you can’t bring
them up again. You can raise 6 and 7 all
the way through trial, and you can raise 1 even at the level of the Supreme
Court even if no one has brought it up before.
If
you don’t file a Rule 12 motion, then your obligation is to file an
answer. You don’t have to answer until a
Rule 12 motion is ruled on.
Answers
contain denials, affirmative defenses, and counterclaims. What are the requirements of those? Denials are described by Rule 8(b). You need to admit or deny, or if you don’t
have enough information to admit or deny, you say so and that operates as a
denial. When you intend to only deny
part of the allegations, you have to say that.
What
does that mean for me as a defense lawyer?
You must, paragraph by paragraph and line by line, admit, deny or say
you don’t know. That’s time
consuming!!! You have to sign the
document pursuant to Rule
11.
This
is why you file a Rule 12(b) motion! It
gives you more time to work on your answer.
Filing an answer involves a lot of time with your client.
What
if you fail to deny correctly? If you
fail to deny something, it’s admitted.
If you don’t say anything about a certain allegation, it’s like you’re
saying it’s true. Answers can be
complicated, time-consuming, high-stakes!
What
else goes into your answer? Any
affirmative defenses you may have. You
would also include statute of limitations stuff: “Yes, I messed up, but you
waited too long to file, sorry.”
The
last part of the answer is any claims you may have (counterclaims).
Finally,
we join up all the parties who have a potential role in the litigation.