Questions and Answers of Civil Procedure

1. The real-party-in-interest rule is justified by the need to foreclose duplicative lawsuits, to assert all defenses in one action, and to avoid prejudice, in particular by ensuring that the
7. May a federal court exercise supplemental jurisdiction under 28 U.S.C. § 1367 over parties joined under Federal Rule 13(h) to a compulsory counterclaim?
6. When does Federal Rule 13(h) authorize joinder of a party? Can the rule be used to assert a crossclaim against a person who is not already a party to the original action? Can a person who already
3. In LIEBHAUSER v. MILWAUKEE ELEC. RY. & LIGHT CO., 180 Wis. 468, 193 N.W.522 (1923), a passenger on a railway street car sued for personal injuries allegedly sustained when the car collided with an
2. Generally, a crossclaim is permissive so that the failure to raise it does not bar suit in a subsequent action. Why should this be so? Doesn’t this lead to a multiplicity of suits? Should the
1. Is the reasoning of the majority or dissenting opinion more persuasive? Should the fact that different subcontracts were involved, which arguably meant that different transactions were before the
8. If defendant’s answer contains a counterclaim, must plaintiff assert a compulsory counterclaim to defendant’s counterclaim? Does it matter whether defendant’s counterclaim is compulsory or
7. If five days after defendant serves her answer she becomes the assignee of a claim against plaintiff and if the assigned claim arose out of the same transaction or occurrence as plaintiff’s
6. By definition a counterclaim is not compulsory if it requires adding a party over whom“the court cannot acquire jurisdiction.” Rule 13(a)(1)(B). What if the party is a required party under
5. In SOUTHERN CONSTRUCTION CO. v. PICKARD, 371 U.S. 57, 83 S.Ct. 108, 9 L.Ed.2d 31 (1962), the Southern Construction Company was the prime contractor on contracts with the United States for the
4. Several exceptions to the compulsory counterclaim rule are set out in the text of Rule 13(a) itself. In UNION PAVING CO. v. DOWNER CORP.,672276 F.2d 468, 470 (9th Cir.1960), the court discussed
3. Under what circumstances should defendant be permitted to assert a compulsory counterclaim after the applicable statute of limitations has run? Formerly Federal Rule 13(f) allowed a pleader to
2. Should a defendant who defaults and fails to file an answer be barred from later filing a transactionally related claim as a separate action? For a critical view, see Peterson, The Misguided Law
1. Rule 13(a) is silent on the effect of failing to plead a compulsory counterclaim. It seems clear that an unasserted compulsory counterclaim cannot be raised in a subsequent suit in a federal
5. Can the value of a compulsory counterclaim be considered in determining whether the action meets the amount-in-controversy requirement for diversity jurisdiction? See p. 282, supra. In Spectacor
4. Rules for compulsory counterclaims differ among the states. The Minnesota rule, for example, is virtually identical to Federal Rule 13(a)(1)(A), except that the reference to“occurrence” is
3. Before the enactment of 28 U.S.C. § 1367, a compulsory counterclaim fell within the ancillary jurisdiction of the federal court and so did not require an independent basis of subject-matter
2. The classic definition of transaction for purposes of a counterclaim is found in MOORE v. NEW YORK COTTON EXCHANGE, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926).Plaintiff sought to compel
1. Federal Rule 13(a) goes beyond the English and code practice by requiring a party to assert certain claims. Is this step desirable? See Kennedy,Counterclaims Under Federal Rule 13, 11 Hous. L.
2. In an action arising on contract, any other cause of action arising on contract, and existing at the commencement of the action.
1. A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action; and
3. Principles of res judicata, which prohibit the splitting of a cause of action into two or more lawsuits, may create incentives for the joinder of related claims even in the absence of a rule of
2. Federal Rule 18 describes the claims that a party is allowed to assert in a single action against an opposing party, but it does not compel joinder. Compare this approach with Michigan’s joinder
1. Federal Rule 18 removes all obstacles to the joinder of claims and permits the joinder of both legal and equitable actions; the only restriction on the claims that may be joined is imposed by
8. Recall the values that inform a sound and efficient system of civil procedure, pp. 4 5, supra. What are the social costs of blocking legitimate lawsuits from access to the public courts or
6. Courts have statutory authority under 28 U.S.C. § 1927 to impose excess costs on an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously.” It is an open
5. Congress has established special sanction regimes for particular kinds of claims.Sanctions under the Private Securities Litigation Reform Act, see p. 602, supra, closely resemble those available
4. How does Twombly affect Federal Rule 11? The consensus is that under the 1993 version of Rule 11, sanctions are not warranted simply because a complaint does not survive a Rule 12(b)(6) motion.
3. Is it appropriate to award sanctions under Federal Rule 11(b)(3) if, after discovery, a factual contention is found to lack evidentiary support? If a paper has been signed, isn’t it appropriate
2. What constitutes a “reasonable inquiry” that contentions are legally sufficient under Rule 11(b)(2)? In GOLDEN EAGLE DISTRIBUTING CORP. v. BURROUGHS CORP., 801 F.2d 1531 (9th Cir. 1986),
1. Does Rule 11(b)(1) permit sanctions for papers that are legally and factually well grounded, but submitted for an improper purpose? In Sussman v. Bank of Israel, 56 F.3d 450(2d Cir. 1995), the
3. As you read the material in this Chapter, consider whether Rule 11 serves the same function as verification under Rule 23.1. See Comment, Verification of Complaint in Stockholders’ Derivative
2. In those state courts in which fact pleadings generally do not have to be verified, there are certain exceptions. Some of the typical ones found in state practice are: petitions for divorce;
1. Given the complexity of contemporary finance, is it realistic to condition the ability to bring suit under Federal Rule 23.1 on the investor’s personal knowledge of the transactions that give
2. Are supplemental pleadings governed by the same relation back analysis as amended pleadings? One view is reflected in DAVIS v. PIPER AIRCRAFT CORP., 615 F.2d 606, 609 n.3 (4th Cir.1980). In that
1. Federal Rule 13(e) permits defendants to use a supplemental pleading to assert counterclaims that arise after filing an answer. What policy reasons would justify treating plaintiffs differently
3. Before Rule 15(c) was amended the circuit courts disagreed whether to characterize relation back as “substantive” or “procedural.” In SCHIAVONE v. FORTUNE, 477 U.S. 21, 106 S.Ct. 2379, 91
2. Assume all of the facts set out in Note 1, except that plaintiff, not knowing the identity of the arresting officers, named in his original complaint the police department and two police officers
1. Test your knowledge of the relation back doctrine with the following problem:Assume that during the course of an arrest in Peoria Heights two police officers handcuff the detainee and he suffers
3. Before Rule 15(c) was amended the circuit courts disagreed whether to characterize relation back as “substantive” or “procedural.” In SCHIAVONE v. FORTUNE, 477 U.S. 21, 106 S.Ct. 2379, 91
2. Assume all of the facts set out in Note 1, except that plaintiff, not knowing the identity of the arresting officers, named in his original complaint the police department and two police officers
1. Test your knowledge of the relation back doctrine with the following problem:Assume that during the course of an arrest in Peoria Heights two police officers handcuff the detainee and he suffers
4. State judicial systems also provide for amendments during and after trial. In MOORE v. MOORE, 391 A.2d 762 (D.C. Ct. App. 1978), a custody suit brought by the father, the court granted the
3. Federal Rule 15(b) permits amendment of the pleadings both during and after trial.How does the procedure described in Rule 15(b)(1) differ from that in Rule 15(b)(2)? What are the consequences of
2. Federal Rule 15(a) permits amendment without consent of the court. What is the justification for this rule? Until 2009, the rule allowed a party to amend as a matter of course only before being
1. Parties may amend their complaints at various points in a litigation. In Beeck, defendant initially moved to amend before the trial took place. Should the court have granted the motion then?
3. Allegations to which a reply is not required are considered avoided or denied and plaintiff may controvert them at trial. See Federal Rule 8(b)(6); N.Y.C.P.L.R. 3018(a).Conversely, matters
2. A plaintiff must reply to an answer that contains counterclaims; otherwise, a reply is within the discretion of the court. See Federal Rule 7(a).627Why, given liberal discovery rules, should it
1. Is Federal Rule 7(a), when read in conjunction with Rule 8(b)(6), consistent with Federal Rule 8(b)(1)–(5), and the requirement that a defendant answer plaintiff’s allegations specifically?
4. Plaintiff may challenge the propriety of an affirmative defense by motion under Rule 12(f). Before Twombly and Iqbal, an affirmative defense generally was treated as sufficient if it provided
3. Can the court, sua sponte, consider a defense that defendant has failed affirmatively to plead? In DAY v. McDONOUGH, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), the Supreme Court held
2. In light of the policies identified in Ingraham, would defendant in a breach of contract action be required to set forth the clause of the contract that provides a defense to the claim?See PYCA
1. Can Taylor be reconciled with the holding in Ingraham that a limitation of damages is an affirmative defense under Federal Rule 8(c)? Which court makes the better argument?Should it matter that
3. Conjunctive Denials A conjunctive denial, sometimes called a copulative denial, is a type of “negative pregnant,” and involves a statement in which all propositions considered together are not
2. “Negative Pregnant” Denials A “negative pregnant” is a statement phrased in the negative that carries an affirmative implication. Suppose plaintiff alleged that defendant owes her $89,000
1. Denials for Lack of Information Under Federal Rule 8(b)(5) a party may deny an allegation on the ground that it “lacks knowledge or information sufficient to form a belief about the truth” of
3. Are denials subject to the Twombly and Iqbalstandard of plausible pleading? Professor Miller has concluded that the answer is “[s]omewhat uncertain,” focusing on the absence from Rule 8(b) of
2. To what extent should defendant be permitted to respond that “he neither admits nor denies” plaintiff’s allegations? Should it make any difference whether or not a general denial is allowed?
1. In BIGGS v. PUBLIC SERVICE COORDINATED TRANSPORT, 280 F.2d 311, 313–14(3d Cir. 1960), a diversity of citizenship case, defendant generally denied plaintiff’s jurisdictional allegations,
3. Would it be an abuse of discretion to dismiss a complaint with prejudice without the court first granting plaintiff leave to amend? See Gelbach, Note—Locking the Doors to Discovery? Assessing
2. How do Twombly and Iqbal affect the standard for assessing mixed questions of fact and law under Federal Rule 12(b)(6)? HARTFORD ACCIDENT & INDEMNITY CO. v.MERRILL LYNCH, PIERCE, FENNER &SMITH,
1. Would Twombly and Iqbal affect the result in American Nurses? Is it significant that federal civil rights cases have been dismissed at a higher rate than other cases under the standard of
2. In ANHEUSER–BUSCH, INC. v. JOHN LABATT LTD., 89 F.3d 1339, 1349 (8th Cir.1996), certiorari denied 519 U.S. 1109, 117 S.Ct. 944, 136 L.Ed. 2d 833 (1997), plaintiff failed to mention punitive
1. Most states follow the federal rule that relief is not limited by the ad damnum clause.Why should a defendant who defaults be protected by a cap on damages, but a defendant who participates be
2. The normal consequence of failing to plead special damages is being barred from proving them at trial. However, with regard to a few types of cases the existence of special damages is an integral
1. Federal Rule 9(g) requires the pleading of special damages with particularity, but does not define special damages. A typical definition looks to whether the damages would be“unusual” for the
4. In PFEIL v. STATE STREET BANK AND TRUST CO., 671 F.3d 585 (6th Cir. 2012), participants in a pension plan alleged that defendant breached its fiduciary duty as pension administrator under the
3. In 2006, securities litigation filings were forty-three percent lower than the ten-year historic average of one hundred and ninety-three since enactment of the PSLRA.See Bloomenthal & Wolff, Are
2. In MATRIXX INITIATIVES, INC. v. SIRACUSANO, 563 U.S. ___, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011), the Court held that the Tellabsstandard can be satisfied even without“an allegation of
1. In DURA PHARMACEUTICALS, INC. v. BROUDO, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), cited in Twombly, p. 571, supra, the Court held that a complaint under the Private Securities Law
2. DENNY v. BARBER, 576 F.2d 465 (2d Cir.1978), was a case remarkably similar to Denny v. Carey. Both were brought by the same plaintiff, represented by the same counsel, and the same public
1. Defendants in the principal case argued that applying a heightened pleading standard under Rule 9(b) would protect professional reputations and deter the filing of meritless cases aimed at a quick
4. What is the effect of a motion for a more definite statement on the timing of a responsive pleading? See Rule 12(a)(4)(B).
3. Assume plaintiff in Garcia had not included any facts in the complaint indicating either a conditional or absolute privilege. How could defendant have raised these issues? See Federal Rule 8(c).
2. Suppose the court had denied defendant’s Rule 12(e) motion. How else might defendant have learned the details of the alleged defamatory publication? What are the advantages of the Rule 12(e)
1. In current practice, Rule 12(e) motions generally are disfavored and granted only when the pleading is so unintelligible as to make the opposing party unable to respond. To what extent could
3. Plaintiffs in Erickson and Swanson, like Dioguardi, p. 559, supra, appeared pro se. The number of pro se federal litigants is estimated to be from about twenty-five to thirty-seven per cent of
2. The majority in Swanson, Note 1, above, relied on Swierkiewicz, p. 565, supra, cited with approval in Twombly. Although not overruled, is Swiekiewiczinconsistent with the requirement of plausible
1. Can Erickson be reconciled with Twombly and Iqbal? The Seventh Circuit, reversing the District Court’s dismissal of a Fair Housing Act claim, has explained:* * * Critically, * * * none of the
10. Can a court reject a pleading for including too much information? In some cases, the problem is not that of the complaint’s length but rather the inclusion of facts that constitute a defense to
9. Twombly and Iqbal provide a window into a profound disagreement among the Justices on the effectiveness of judicial case management, a topic that we will study in Chapter 11. The Twombly majority
8. Congress has held hearings on whether the plausible pleading standard imposes barriers to judicial access that are inconsistent with democratic values. See Has the Supreme Court Limited
7. State courts are not required to follow either the Federal Rules or federal judicial standards governing the sufficiency of a complaint. However, as Justice Stevens pointed out in his dissent,
6. By referring to the test for whether a complaint survives a motion to dismiss as a“context-specific task,” has Iqbal remained faithful to the principle of transsubstantivity, or does the
5. For an allegation to be plausible must it be the best explanation, the most likely explanation, a reasonable explanation, a probable explanation, a possible explanation, or the only explanation of
4. Consider again the requirement that allegations be “plausible.” In light of the religious and ethnic background of those who took responsibility for destroying the World Trade Center, why was
3. Even before Twombly and Iqbal, some courts imposed heightened pleading standards in civil rights and complex cases. See p. 569, supra. Does the new standard raise the bar by requiring the pleading
2. Does Iqbal retreat from the traditional rule of presuming the truth of plaintiff’s allegations? Consider the fact that plaintiff alleged in his complaint that defendants “knew of, condoned,
1. Does Iqbal clarify when a complaint is sufficient? Does it change the test announced in Twombly? Does the requirement that a pleading contain “sufficient facts” differ from the requirement
2. Prior to Swierkiewicz, the Court in LEATHERMAN v. TARRANT COUNTY NARCOTICS INTELLIGENCE & COORDINATION UNIT, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), unanimously held that Rule 8 did
1. Would a complaint alleging a violation of Title VII, the statute at issue in Swierkiewicz, be sufficient if it stated, “I was denied employment because of my gender”? See Sparrow v.United Air
4. Consider which, if any, of the following pleadings would be sufficient to state a claim under Federal Rule 8(a)(2). Does Form 11 provide a benchmark for judging any of these?Which are too vague?
3. What are the implications of requiring plaintiff to plead a detailed statement of facts, rather than simply notice of his claim? According to the Seventh Circuit Court of Appeals,“[T]he number
2. Examples of the simplicity of pleading under Rule 8(a) are found in the Appendix of Forms, which are set out in the Supplement following the Federal Rules of Civil Procedure;in particular see
1. The Conley litigation was brought by a group of African-American workers alleging that their union had discriminated against them in violation of the duty of fair representation under the federal
2. Pleading standards differ in other countries. Generally, courts abroad require a plaintiff to allege facts supporting her claim with reasonable particularity.See Sherman, Transnational
1. “Quite commonly an allegation has been held bad as a statement of law only. The stating of evidence, while subject to criticism, is not so often held to render the pleading bad, since the court
3. Plaintiff was given leave to amend the complaint after the Gillispie decision. Suppose that plaintiff’s amended complaint also is deficient. Will she be given leave to amend again?How should the
2. To what extent might the court in Gillispie have been motivated by the notion that a detailed account of the facts might well show that plaintiff did not have a valid claim for relief? Is it
1. Is the court in Gillispie legitimately concerned with the inability of defendants to ascertain the claims against them in order that they might answer and prepare their defenses? Can it be said

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