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, we’ll discuss relation back. We will discuss Practice Exercise 9. We will end this class early (at 7:45) to enable any students who wish to do so to attend the 8:00 p.m. University candlelight vigil for the victims of last Tuesday’s 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. It’s typical to deny entire paragraphs but that is not always appropriate - see UNUSUAL Zielinski case (E.D. Pa. 1956) (see at: http://classes.washburnlaw.edu/lass/coursemat/ 2000fall/cases/Zielinski_v_Philadelphia.htm) http://classes.washburnlaw.edu/lass/coursemat/ 2000fall/cases/Zielinski_v_Philadelphia.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? Didn’t court disregard anti-waiver provision of 12(h)(3)?

9. Controlled Environment Systems v. Sun Process Co., Inc. What was the problem with the plaintiff’s 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 COURT’S PERMISSION TO AMEND?

23. 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 Jane’s burden on the motion? What is Roger’s 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?