Civil Procedure Class Notes 11/17/03


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 ADA suit, but what they should have done is try to get an administrative remedy from the EEOC.  If you have a complaint, you take it to the EEOC first.  They can either take your complaint and investigate it themselves, or else they can give you a “right to sue” letter.


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!


Bell v. Novick Transfer Co.


Here’s a Rule 8 case!  There’s an auto accident.  We’re in Maryland.  Who is Bell?  He’s an “infant” plaintiff.  He’s not really an infant; he’s a minor.  He’s under 18.  He’s a teenager.  Bell sues a bunch of people.  He sues the company that owns the truck that hit him and the driver.  This is according to Fairman’s advice: “sue everybody!”  Somebody is going to be liable here.


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 Maryland law.  What’s the procedural posture?  The court only has the pleadings before it.  What type of motion are you going to file?  It will be a 12(b)(6).  What the defendants say is that you, the plaintiffs, have failed to state a claim under Maryland state law.  The court’s ruling on the 12(b) motion right now.


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 Maryland state pleading require?  They had “code pleading”, which some states still use.  Under Maryland law, you had to write a detailed pleading.


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 Maryland state procedure.  It is by removing the case that the defendants screwed up, because then they’re subject to the FRCP, which only require notice pleading!


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 Texas that improperly trained its officers.  The victims sued the city for have an unconstitutional policy.  They used under the federal civil right statute.  These are called Monell actions after the case that created them.  These are civil rights suits against cities.


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.


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