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?