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CIVIL PROCEDURE CLASS 11

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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 11


1
CIVIL PROCEDURE CLASS 11
  • Professor Fischer
  • Columbus School of Law
  • The Catholic University of America
  • Sept. 20, 2002

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?
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