Civ Pro 2 Notes 8/19/04


The story of pleading


Fairman’s scholarship is chiefly in the area of pleading and pleading practice.  What’s the relationship between common law pleading practice and the modern Federal Rules?  What does the King of England have anything to do with it?  Let’s go back to Medieval Times!  There were two types of courts: the royal courts or king’s courts and the courts of equity.  With the royal courts of justice, you had to get the king’s attention somehow.  What develops initially as an oral tradition evolves into the system of writs: paper documents that spelled out different causes of action, such as the trespass writ.  This was what Wright called “the elaborate dance of pleading”.


When you were served with a common law writ, do you demurrer or do you plea?  The demurrer challenged the sufficiency of the writ: “So what?  I assume that everything you’ve said is true, but it doesn’t matter.”  The pleas agreed that the writ was sufficient but raised other objections.  Dilatory pleas dealt with either jurisdiction or venue: “Not here, not now.”  The bars either said: “Not true” or “yes, but”…these were traverse or confession.  There was a formulaic way to get into court and a formulaic way to respond.  Today, a 12(b)(6) motion is quite similar to the common law demurrer.  For jurisdiction and venue, we have 12(b)(1) and 12(b)(5).  For traverse and confession, we have denials and affirmative defenses.  So this is why it’s worth being familiar with common law pleading practice: its elements are still present in the Federal Rules today.


Here’s something that Yeazell doesn’t mention: there was a whole parallel court system to the royal courts, namely, the equity courts or courts of chancery.  The courts of equity didn’t follow the same rules of pleading as the common law courts and you could appeal upon the chancery courts for relief because it was right and fair.  They issued injunctions.  There was no power at law for the equity courts to order this.  They could order specific performance as a remedy.  They also had no jury trials.  You wouldn’t need a jury to decide issues of equity.  The equity courts develop their own way of doing things.


So we have a complicated, crappy system!  By the mid-nineteenth century, we get a reform effort in the form of the Field Codes, or Code Pleading.  It starts in New York and spreads throughout the country.  Instead of having to use writs and pleas, we’ll start litigation by presenting a statement of facts stating a cause of action, written in a way that an ordinary person can understand.  But here was the problem: it was overlaying a reform on top of a body of lawyers who were used to using the old system.  They found a way to make a game out of the intended reform.  What is a fact?  What is a cause of action?  Huge bodies of action developed over what a fact is.  Neither evidence nor conclusions were considered facts, and you could get booted out for pleading either.  You also had to plead all the elements of a cause of action, which led to other levels of complexity.  The reform effort goes off the rails!  Why did it happen?  Both Field and common law pleadings tried to make pleadings do lots of stuff in the legal process.  Pleadings are good for giving you notice of an upcoming lawsuit.  They can also state the facts, narrow issues, and resolve meritless claims.


This sets the stage for the next level of reform.  Charles Clark was a federal appellate judge and professor at Yale.  This was the “New Deal” for the federal courts!  Clark and his draft committee had a vision of what he wanted the rules to do.  He believed that both code pleading and common law pleading inappropriately kept people from getting their day in court.  A system of rules was developed around that premise.  It all starts with Rule 1: there will be no more split between law and equity courts.  Federal courts will be able to give relief at law and in equity.  Rule 2: there will only be one form of action.  Then we go to the famous Rule 8, upon which Fairman’s career is based!  This is our “short and plain statement” rule!  It sets the bar relatively low.  The facts are gone, the writs are gone, the cause of action is gone.  You just need the short and plain statement.  It’s notice pleading!


Look at Form 9 under the Federal Rules…a guy gets hit by a car on a certain date.  The car was driven negligently.  The plaintiff has his leg broken and had some expenses.  The plaintiff demands payment!  That’s notice.  We don’t know why the defendant was negligent.  Maybe the defendant sped!  Maybe he drove recklessly!  Maybe he ran a stop light!  We assume that there was only one accident on June 1st.  The guy won’t have to puzzle over why he was sued.  The Rules tell us that these forms are sufficient.  Wright says: “Rule 8 is the keystone!”  All the other old burdens of pleading will be provided by other rules and other steps in the process.  Facts will be discovered in discovery, and that’s also where we’ll narrow the issues.  We can resolve meritless claims with motions to dismiss and summary judgment.  Pleading is made simple: we perform other procedural tasks with other techniques.


This isn’t to say that there aren’t elements of code pleading still around.  There are states that still have state pleading rules based on code pleading.  The California Code of Procedure requires a statement of facts, just like the Field Code did.  On the other hand, even though the rule is there, that’s not really what they want.  The influence of the Federal Rules has been so great that the recitation of the facts required in the past is not necessary.  You can use a standard “check-the-box” form.  This is a far cry from what Field intended!  How does all of this work?


Haddle v. Garrison


We’re taken through this litigation to try to explain the way pleading has developed in the modern era.  It’s a whistle-blower case.  Haddle testifies against his former employers at Healthmaster who were involved in Medicare fraud.  Haddle gets fired!  That doesn’t seem right!  So he sues in the Federal District Court in the Southern District of Georgia.  We need personal jurisdiction and subject matter jurisdiction.  Personal jurisdiction is easy because it’s a Georgia court with personal jurisdiction over Haddle because he’s suing there.  We have defendants from multiple places.  We have some from Georgia.  Garrison is a South Carolina resident.  How does the court have personal jurisdiction over him?  Minimum contacts!  Shoe!  What about subject matter jurisdiction?  Why are we in federal rather than state court?  We don’t have complete diversity.  It’s based on the federal civil rights statute – a federal claim!  It’s a suit under 42 U.S.C. § 1985(2).  This anchors the case in federal court, and the state law claims are hooked in with supplemental jurisdiction.


What do the Healthmaster defendants do?  They file a 12(b)(6) motion to dismiss!  They claim that he suffered no constitutionally-protected injury.  They say “so what”!  The guy was hired, he cooperated with an investigation, then he was fired.  The pleading basically says: “Yeah, we did it.  So what?”  At the time, Georgia was an at-will employment state, meaning that you had no property interest in your job.  Without a property interest at stake, there was nothing wrong with firing him.  The district court buys the argument and grants the 12(b)(6) motion.  It’s a winner because the Eleventh Circuit says so in Morast v. Lance.  Haddle appeals to the Eleventh Circuit itself, which per curiams him!  In the Supreme Court, the Eleventh Circuit gets overruled: he does have a claim!  The claim gets reinstated and goes all the way back down to the trial court!


So this is how modern pleading has developed.  The notice element is there, but there’s a whole lot more to the story in the Haddle complaint than the drafters of the Rules might have anticipated.  We also see the overlay of the review of law where the courts agree, but then disagree as to whether the legal issue was right.  Haddle wins, kind of.  He doesn’t win much money.  But the attorneys win big time!  They get over $250,000 in legal fees from a Magistrate Judge.  We will continue to think about this: the Rules create costs and benefits.  Part of the negative impression of lawyers in the public mind, according to Fairman, is due to stories like this where the lawyers get a lot more money than the client.  Is this inequitable?  The jury can certainly limit damages.  The Magistrate Judge didn’t grant all the fees that were asked for.  They were basically cut in half.


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