Civil Procedure II Outline - Part 1

(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

• Analysis of 12 E - Motion only available when the pleading “is so vague or ambiguous that the party cannot reasonably prepare a response” -Incorporating prior allegations by reference + even failing to separate counts cleanly doesn’t make a complaint subject to Rule 12(e) motion

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

1. on its own; or

2. on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

   Analysis- Rule 12(f) motions = target redundant, immaterial, impertinent, or scandalous matter

(g) Joining Motions.

1. Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
2. Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
   • Analysis of 12(g) - “Omnibus motion rule” = effectively requires a party to consolidate all of Rule 12 defenses + objections then available to it in a single omnibus pre-answer motion, instead of presenting them serially.
     • Prevents parties from raising it again by another pre-answer motion and raising Rule 12(b)(2)-(5) defenses again by any means
     • Doesn’t require a party to file a pre-answer motion, matter of IF they do
       • Exception Omnibus motion rule only applies to Rule 12 defenses that are “available” to party when it filed the pre-answer motion
         • When P amends original complaint and the amendment adds new claims, it can raise new issues not present in original pleading
   • Rule 12(g)(2) = forbids party from making another motion under Rule 12 based on a defense or objection that was available to it when filing pre-answer motion

(h) Waiving and Preserving Certain Defenses.

1. When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:
   1. omitting it from a motion in the circumstances described in Rule 12(g)(2); or
   2. failing to either:
      1. make it by motion under this rule; or

      2. include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

         Analysis Rule 12(h)(1)(A) = omitting any of Rule 12(b)(2)-(5) defenses of lack of PJ, improper V, insufficient process, or insufficient service of process from the pre-trial answer motion waives that defense

2. When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
   1. in any pleading allowed or ordered under Rule 7(a);
   2. by a motion under Rule 12(c); or
   3. at trial.
3. Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether made in a pleading or by motion—and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

Analysis of Rule 55 A

• Rule 55(a) = clerk shall enter default only if there has been a default AND that failure is shown by affidavit or otherwise
• P must bring the fact of default to clerk’s attention, usually through filing an affidavit

(b) Entering a Default Judgment.

1. By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
2. By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to:
   1. conduct an accounting;
   2. determine the amount of damages;
   3. establish the truth of any allegation by evidence; or
   4. investigate any other matter.

Analysis of 55(B)

• Rule 55(b) = not mandatory; courts have discretion to enter a DJ or not
• D entitled to min of 7 days’ written notice about entering DJ where D can argue about entering a judgment + set aside entry of default

(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b)

Analysis of 55(C)

• Default is disfavored; easy to set it aside “for good cause” (Rule 55(c))
• Once DJ entered = standard tightened; final judgment on which P and others may have relied
• Setting it aside may be prejudicial to such parties--especially if some time has passed since entry

(d) Judgment Against the United States. A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.

• Analysis of Whole Rule
• Authorized by Rule 55: Occurs if non-defaulting party + court carefully follow prescribed procedures
  • Why they can happen:
    • D’s are judgment proof and elect to it
      • Judgment proof = have not assets from which judgement can be collected
    • Ds gamble that default judgment winner will not track down their assets in order to enforce the judgment

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions.The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

1. mistake, inadvertence, surprise, or excusable neglect;
2. newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
3. fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
4. the judgment is void;
5. the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
6. any other reason that justifies relief.

Analysis of 60B

• Defaulting party has to move for relief under Rule 60(b)

(c) Timing and Effect of the Motion.

1. Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.
2. Effect on Finality. The motion does not affect the judgment's finality or suspend its operation.

Analysis of 60C

• Excusable neglect or mistake
• Courts have to consider if default was wilful, whether setting it aside would Prejudice P + Whether F has any meritorious defenses

(d) Other Powers to Grant Relief. This rule does not limit a court's power to:

1. entertain an independent action to relieve a party from a judgment, order, or proceeding;
2. grant relief under 28 U.S.C. §1655 to a defendant who was not personally notified of the action; or
3. set aside a judgment for fraud on the court.

(e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.