Prince’s Briefcase: Holbein v. Heritage Mutual Insurance Co. (Glannon Civil Procedure)


Professor Joseph Glannon Civil Procedure: Rule 20a Joinder of Parties

Here is a case from my Civil Procedure course which explains the rule on how to join parties in lawsuit. In this case, you can join all persons in a lawsuit but only if it arises from the same nucleus of events.

Case Name, Citation Number, Author
Holbein v. Heritage Mutual Insurance Co., 106 F.R.D. 73 (E.D. Wis. 1985), United States District Court for the Eastern District of Wisconsin.

prince's briefcase (princesdailyjournal)Procedural History
Four plaintiffs sue Defendant for misrepresentation. Defendant moves to sever the action into four discrete lawsuits.

Facts
–Four plaintiffs sue defendant for false or reckless representation
–Defendant moves to sever the lawsuit into four discrete cases, pursuant to Rule 20(a) and Rule 21
–Defendant argues that none of the plaintiffs’ claims arises “out of the same transaction, occurrence; or series of transactions or occurrences” presented in Rule 20a
–Each of the plaintiffs are insurance executives, each were interviewed, and all of them withheld important information that gave rise to the alleged complaint.

Issue
Whether the court should sever the action into four discrete causes pursuant to Rule 20a, 21?

Holding
No

Reasoning
1) The present complaint arise out of the same series of transactions or occurrences and implicates questions of law or fact common to each of the named plaintiffs.
2.) Burden of consolidating outweighs the practical benefits of accruing all players

Rule
Rule 20a: All persons may and can join the same suit if their claims arises out of the same transactions and if any questions off law will arise in that action

Disposition
Deny Defendant’s motion for severance

Notes
Rule 21: Trial judge has discretion to sever the joinder claims.

Prince’s Takeaway
You can join all persons to the same suit if (1) their claims arises out of the same transaction (or series of them) and (2) if any common question of law will arise in that action. Rule 20(a)(1)

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Prince’s Briefcase: King v. Blanton (Glannon Civil Procedure)


Prof Joseph Glannon Civil Procedure: Rule 13 CounterClaims

Here is a case from my Civil Procedure course which explains the rule for issuing counterclaims. In this case, failing to file a counter-claim in time results in a waiver–even though the claim arises from the same events.

Case Name, Citation Number, Author
King v. Blanton, 735 S.E.2d 451 (final disposition reported); No. COA12-534, slip op. (N.C. Ct. App. Nov. 20, 2012)

prince's briefcase (princesdailyjournal)Procedural History
Blanton filed suit against King for injuries in a car accident. Blanton entered agreement with King over cash settlement. One month later King filed a counterclaim in response to Blanton’s original complaint. Blanton files motion to dismiss. Trial court grants it and gives summary judgment to Blanton. King appeals.

Facts
–Car accident occurred on April 23, 2010
–Blanton filed a complaint on July 14, 2010
–Blanton entered agreement to dismiss the case May 3, 2011
–King filed a counterclaim on June 30, 2011

Issue
1) Whether the trial court erred in granting summary judgment in favor of Blanton?
2) Should a counterclaim in a second action be barred under Fed Rule 13a?

Holding
1) No
2) Yes

Rule
Failure to file a compulsory counterclaim constituted a waiver and estops her from bringing a new action for negligence based upon the same events that were the heart of the original complaint.

Reasoning
–Waiver/estoppel approach in Kemp v. Spivey. Rule 13a creates an estoppel or waiver to prevent multiplicity of actions and to achieve resolution in a single lawsuit
–King had more than 9 months to file a counterclaim
–King was unaware of her right to file a counterclaim.

Disposition
Affirmed

Notes
–Rule 13(a)(1): a counterclaim is a claim for relief by a defending party against an opposing party. A “pleading shall state as a counter claim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter jurisdiction of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”
–Rule 13(b): defendant can assert unrelated counterclaims against plaintiff
–A counterclaim is a claim for relief by a DEFENDING party against the party who is claiming relief from her
–A counterclaim is compulsory when it must be asserted in the same action.
–Cross-claims: Rule 13(g): A cross-claim is a claim against a co-party—a co-defendant or a co-plaintiff. Cross claims maybe asserted if they arise from the same transactions or occurrence as the main claim in the action. Cross claims are permissive

Prince’s Takeaway
Do not file a counterclaim much later than expected.

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Prince’s Briefcase: Form of Contracts or “Contracts of Adhesion” (Trujillo Contracts)


Professor Elizabeth Trujillo Contracts: Contracts of Adhesion

Here are two condensed case briefs from my Contracts class, which explains the concept of Contracts of Adhesion. The best way to understand these types of contracts are Baseball Tickets. Once you buy the tickets, and enter the Baseball Stadium, you comply to all the terms located on the back of the stub.

prince's briefcase (princesdailyjournal)Carnival Cruise Lines v. Shuttle (Ticket Problem: Forum Selection Clause, which means place to litigate the lawsuit–Washington vs. Florida?)
Facts
Appellees bought cruise tickets from their home state of Washington and wanted to sue the cruise line in their home state for personal injury. However there was a forum selection clause on their purchased tickets saying that all legal disputes must be litigated in Florida.

Prince’s Takeaway:
All terms in Standardized Agreements (Form Contracts) are binding. Standardized contracts is an exception towards bargain for exchange.

Notes
–Restatements §211 Standardized Agreements: where a party to an agreement signs or assents to writing and has reason to believe in that writing, then party adopts the writing as integrated.
–Stevens dissent: there was no bargain for exchange.

Caspi v. Microsoft Network LLC (Internet Forum Selection: pop-up screen click button)
Prince’s Takeaway
Plaintiffs must have known that they were entering into a contract when they clicked the “I agree” button. They were put on enough notice to be bound of all the terms of the forum selection clause. It has to be a reasonable notice. The forum selection cause was presented in uppercase for emphasis.

Notes
Restatements §211 (3): The Buyer must have adequate notice to build an intent to enter into a contract.

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Prince’s Briefcase: Krupski v. Costa Crocerie S.p.A. (Glannon Civil Procedure)


Professor Joseph Glannon Civil Procedure: Relation Back Against New Parties Under Rule 15c1c)–After The Statute of Limitations Period

Here is a case from my Civil Procedure Class which explains how to change parties and relate them back to an original suit. In this case the plaintiff was allowed to switch cruise lines names in their tort injury lawsuit, even though the Statute of Limitations or the deadline to switch parties has passed.

Case Name, Citation Number, Author
Krupski v. Costa Crocerie S.p.A, 130 S.Ct. 2485 (2010), United States Supreme Court

prince's briefcase (princesdailyjournal)Procedural History
Plaintiff filed a personal injury action against “Costa Cruise Lines N.V. LLC.” It was properly served. Costa Cruise answered, asserting that it did not have the requisite status of “carrier”–they were not the proper Defendant. Costa Cruise filed a motion for summary judgment, based on this defense. Before the court ruled, Plaintiff dismissed the claim against Costa Cruise without prejudice and moved for leave to add “Costa Crocerie S.p.A” (Defendant). Court granted it. Defendant then moved to dismiss, asserting that Passage Contract between Plaintiff and Defendant had a 1 year Statute of Limitations (time allotted to sue) and that the Plaintiff’s complaint did not satisfy the Relation Back requirements (Rule 15c1c). The District Court found the first condition satisfied except for the 3rd time delay to amend the constructive notice. Eleventh Circuit affirmed with District Court decision that relation back was inappropriate.

Facts
–Plaintiff suffered serious personal injury while sailing aboard “Costa Magica.”
–Plaintiff filed suit against Costa Cruise on time and it was proper.
–Costa Cruise answered timely that it wasn’t the proper defendant; it was Costa Crocerie.
–Plaintiff moved to dismiss claim against Costa Cruise with no prejudice and moved for leave to add Costa Crociere as its defendant.
–Court granted it, then Defendant moved to dismiss asserting that they and Krupski had a Passage Contract which contained a 1 year statute of limitations and Krupski’s amendment did not satisfy relation back requirements (Rule 15c1c)
–District court found that the 1st requirements were met because the claims against Crociere are the same as the original claim. However, Plaintiff delayed to amend Crociere in the 2nd complaint.

Issue(s)
1) Should the Defendant (Crociere) have known that a suit would be filed against it–during the limitations period and under Rule 15c1c?
2) Is four months too long to amend a complaint?

Holding
1) Yes because the District court held that the Defendant had CONSTRUCTIVE NOTICE of the Plaintiff’s complaint. It was due to a mistake concerning the proper party’s identity
2) No because there was a mistake in party identification and Crociere had constructive notice.

Rule
Rule 15c1c: The proper defendant in a mistaken identity claim should have known that a suit would be filed against him. Despite if it was not timely.

Reasoning
–Costa Crociere should have known, with Rule 4(m) period (Go to Notes), that it would be named as a defendant in the first complaint only because of Krupski’s misunderstanding of which “Costa” ships to sue.
–Despite the fact that Costa Crocerie was listed in her ticket it does not foreclose the possibility that she nonetheless misunderstood crucial facts regarding the two companies identities.
–Krupski’s failure to add Costa Crociere during the Rule 4m period is not sufficient to make any reasonable belief that she had made a deliberate and misinformed decision to not sue Costa Crocerie in the first instance.
–“Crociere” means “Cruise” in Italian therefore the Defendant should have expected a mistake
–The Defendant contributed towards the confusion

Disposition
Reverse Court of Appeals judgment and Remanded

Notes
–Rule 15c1c: The amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.
–Rule 4(m) TIME LIMIT FOR SERVICE. If a defendant is not served within 120 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule(f) or 4(j)(1).

–Bonerb v. Richard J. Caron Foundation, 159 F.R.D. 16, 1994 U.S. Dist. 18407, (adding malpractice claim after negligence much later)
Prince’s Takeaway: Rule 15(c) You can amend a claim if it arises from the original complaint, but the court must give you leave.
“same parties asserting claims or defenses relate back as long as the claims or defenses arose out the same transaction as the original pleading.

Prince’s Takeaway
You can change the parties as long—(1) the claim or defense relates back to original suit in original pleading (2) give notice in reasonable time frame for persona to argue the merits without prejudice and its foreseeable. Statute of limitations does not always preclude a lawsuit from commencing.

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Prince’s Briefcase: Answering the Complaint (Glannon Civil Procedure)


Professor Joseph Glannon Civil Procedure: Answering the Complaint

Here are three condensed case summaries from my Civil Procedure class which explains the rules of answering a complaint.

prince's briefcase (princesdailyjournal)ANSWERING THE COMPLAINT
1.) Schulansky v. Ronan (Rule 8(b)(6))
Prince’s Takeaway: If you ignore allegation against you, you fail to deny the allegations. Rule 8b6. Counter claims must be raised in the original litigation.
If a plaintiff makes a declaration, the defendant can do three types of defenses: (1) demurrer (pose question of law) (2) traverse (you deny the factual allegations to “the country”) (3) confess and avoid (affirmative defense) you admitted the facts but added new matter for relief (confess and avoid)

Reis Robotics USA, Inc. v. Concept Industries, Inc., No. 06 CV 1430., 462 F.Supp.2d 897 (2006) (Rule 8c: Affirmative defenses.)
Prince’s Takeaway: All Affirmative defenses must have factual support
Affirmative defense is an excuse from liability, even if the plaintiff prove its allegations.

3.) Ingraham v. United States, 22 Ill.808 F.2d 1075 (5th Cir. 1987), (medical malpractice law suit)
Prince’s Takeaway: If defendant omits an affirmative defense in its answer, he waives its defenses.
No unexpected or surprise defense

Notes
Rule 8(b)(6): Effect of Failing to Deny. An allegation–other than one relating to the amount of damages–is admitted if a responsive pleading is required and the allegation is not denied. if a responsive pleading is not required, an allegation is considered denied or avoided.
Rule 8(c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.

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Prince’s Briefcase: Big Town Nursing Home, Inc v. Newman (Hicks Torts)


Professor Hicks Torts: False Imprisonment

Here is a case from my Torts class which explains the definition of False Imprisonment. In this case, restraining a senior citizen at a nursing home is false imprisonment.

Case Name, Author, Citation Number
Big Town Nursing Home, Inc. v. Newman, 461 S.W.2d 195, 1970 Tex. App.

prince's briefcase (princesdailyjournal)Facts
–Plaintiff, 67 year old retired printer
–Defendant, Nursing Home
–Defendant put Plaintiff in Wing 3 with insane person, alcoholics, and drug addicts knowing he was not in such category. They put plaintiff in a restraint chair for mare than 5 hours.
–Plaintiff pleaded to leave, and escaped several times, but the defendant brought him home when he did.
–Plaintiff was not allowed to use a telephone.
–Admission papers provided that the patient “will not be forced to remain in the nursing home against his will.”
–Once the Plaintiff escaped, he lost 30 pounds.

Issue
Did the Defendant intentionally falsely imprisoned the Plaintiff?

Rule
False imprisonment is the direct restraint of one person of the physical liberty of another without adequate legal justification.

Explanation
–The Nursing Home intentionally placed the plaintiff in a facility with insane persons
–The Nursing Home breached their admission papers which provided that the patient “will not be forced to remain in the Nursing Home against his will”

Notes
–Court of appeals gave judgment to the Plaintiff
–False imprisonment is an intentional tort
–Plaintiff was aware of an escape, which he attempted many times, therefore no false imprisonment.
–For false imprisonment to occur the victim has to be aware of no escape–not just his belief that the Nursing Home had no adequate legal justification to imprison him. If he sees an escape and escapes, he was not falsely imprisoned.

Prince’s Takeaway
False imprisonment is very hard to understand. Even though the plaintiff was voluntarily restrained by the nursing home, he was not falsely imprisoned: he escaped. Therefore his “will” was not compromised. Plaintiff still had his “physical liberty.” The plaintiff should be awarded for punitive damages for his condition but not on theory of False Imprisonment. Imprisonment means no way out.

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Prince’s Briefcase: Mullane v. Central Hanover Bank & Trust Co. (Glannon Civil Procedure)


Professor Joseph Glannon Civil Procedure: Service of Process–Constitutional Standard of Adequate Notice.

Here is a case from my Civil Procedure course which explains the constitutional standard of serving process (lawsuit papers) to an individual or multiple individuals. In this case publishing the names of out-of-state parties in a newspaper, to serve as adequate notice to be summoned in court, is not constitutional.

Case Name, Citation Number, Author
Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, United States Supreme Court

prince's briefcase (princesdailyjournal)Procedural History
Mullane objected to the statutory provision for notice by publication, arguing that it was unconstitutional for lack of due process under the 14th Amendment. The surrogate court overruled Mullane’s objection and the ruling was affirmed on appeal to the NY Supreme Court Appellate Division and the New York Court of Appeals. The US Supreme court granted certiorari.

Facts
–Central Hanover Bank, was the plaintiff, & trustee of a common trust fund formed by pooling the assets of number of smaller trusts.
–Central Hanover Bank petitioned to the NY Surrogate’s court for a judicial settlement of the trust.
–The only notice provided to beneficiaries was via publication in a newspaper
–Mullane, who was the Defendant, was the appointed attorney and special guardian for a number of beneficiaries who either were unknown or did not appear.

Issue
Is notice given to out of state parties by publication in a newspaper, when the parties addresses were known constitutional in light of the Due Process Clause of the 14th Amendment?

Holding
No because notice given to out-of-state parties by publication in a newspaper, when the parties’ addresses were known, is unconstitutional in light of the Due Process Clause of the 14th Amendment.

Rule
Service by mail is sufficient under due process clause. But it all depends under the circumstances.

Reasoning
–Notice must be reasonably calculated to inform known parties affected by the proceedings. However, constructive notice by publication was acceptable with regard to missing or unknown parties or for those whose whereabouts could not be ascertained by due diligence or for whom future interest were too conjectural to be known with certainty.
–“reasonably calculated, under circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”

Disposition
Judgment Reversed

Notes
14th Amendment: No state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Prince’s Takeaway
Summoning parties to court by means of publishing an ad in the newspaper violates the Due Process Clause–especially if the addresses are already made known. Each party must receive a summons through mail, hand delivery, or drop-off. Service by mail is not always a preferred method of delivery. But if there are circumstances that prevent you from delivery summons in person, then service by mail is approved by Supreme Court and is constitutional under Due Process Clause.

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Prince’s Briefcase: Ide S et ux v. W de S (Hicks Torts)


Professor Hicks Torts: Assault

Here is a case from my Torts course which explains the concept of Assault. In this case, Damaging personal property, while somebody is at home, is sufficient to count as an assault towards that individual.

Case Name, Author, Citation Number
I de S et ux. v. W de S, Y.B.Lib.Ass. folio 99, placitum 60

prince's briefcase (princesdailyjournal)Facts
–I de S: husband; M de S: wife.
–complaint about W de S making an assault with force and arms upon M de S and beat her allegedly
–W beat upon the door with a hatchet so he can buy some wine
–M told him to stop. W saw her and then struck the door with the hatchet but did not hit the woman.
–Upon inquest, there was no trespass since no harm was done.

Issue
Did W commit an assault against M de S?

Rule
–Beating up a door with a hatchet, while somebody is inside a house is an assault.
–For an assault, a man shall recover damages

Explanation
Although W did no harm, he made an assault on the woman M.

Notes
–Professor Hicks Definition of Assault: An (1) Intentional (2) act (gesture), to (3) cause apprehension (fear), in the present imminent, with a (4) reasonable belief that you will do it. THE VICTIM OF THE ASSAULT HAS TO BE AWARE OF YOUR ACTIONS. IF NOT, THEN NO ASSAULT.
–You can get assault charge, even though you didn’t commit no physical harm to the person
–Damaging personal property is sufficient to count as an assault
–No actual damages need be proved

Prince’s Takeaway
Damaging personal property while somebody is inside the home is an assault

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Prince’s Briefcase: Wallace v. Rosen (Hicks Torts)


Professor Hicks Torts: Battery

Here is a case from my Torts class which explains the concept of a battery. In this case, minding your surroundings in a fire drill is crucial in a tort liability case.

Case Name, Citation Number, Author
Wallace v. Rosen, 765 N.E.2d 192 (Ind. Ct. App. 2002)

prince's briefcase (princesdailyjournal)Facts
–Rosen, defendant High School Teacher
–Wallace, plaintiff, mother
–There was a Fire Drill, and the plaintiff and the defendant had a confrontation
–Rosen told Wallace to “move it” but couldn’t hear because her back was faced towards Rosen
–Rosen Touched Wallace on the back, and Wallace fell down the stairs
–Wallace says she pushed her but Rose denies–but admits to touching her on the back
–court favors Defendant, plaintiff appeals because of failure to instruct jury instruction on civil battery.

Issue
Did the court erred on not giving jury instruction on civil battery?

Rule
Jury instruction on Battery: (1) A battery is the knowing or intentional touching of one person by another in a rude, insolent, or angry manner.
(2) Any touching, however slight, may constitute on assault and battery
(3) Also a battery may be recklessly committed where one acts in reckless disregard of the consequences, and the fact the person does not intend that the act shall result in an injury is immaterial

Explanation
–Tort Liability is an intent to bring about a result
–For battery to be an appropriate instruction, the evidence had to support an inference not only that Rosen intentionally touched Wallace, but that she did so in a rude, insolent or angry manner, that she intended to invade Wallace’s interests in a way that the law forbids
–Prof Prosser and Keeton: “In a crowded world, a certain amount of personal contact is inevitable and must be accepted”
–Time and place and the circumstance under which the act is done, will necessary affect its unpermitted character
–Touching Wallace on the back was not rude because of the fire drill

Notes
–No error in court trial judgment
–significant facts: fire drill, teacher’s obligation to the safety of the children

Prince’s Takeaway
Touching on a crowded bus is not a battery because it is expected to happen. Doing disco moves on a crowded bus is a battery because it is unexpected on a crowded bus. Circumstances matter in a tort liability case.

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Prince’s Briefcase: New York Central Iron Works Co. v. United States Radiator (Trujillo Contracts)


Prof. Elizabeth Trujillo Contracts: Illusory Promises

Here is a case from my Contracts course which explains the concept of Illusory promises or in this scenario “Open or Requirements Contracts”. In this case, open contracts with no indefinite quantity of output are enforceable.

Procedural History
Defendant sought review from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department (New York), which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
Courtesy of www.lawschoolcasebriefs.net

Facts
In the underlying action, plaintiff sought to recover damages for the breach of a written executory contract between the parties for the sale and delivery of goods. The contract was an open one as to the quantity of goods that defendant was to deliver. When plaintiff ordered significantly more goods than usual, defendant refused to provide the additional goods. Defendant construed the contract as calling for only the usual amount of goods and not materially exceeding the quantity delivered in any one year before under a similar contract. Defendant claimed that there was a mutual mistake in framing the contract, and defendant asked that the contract be reformed in this respect. The trial court found for the plaintiff, and defendant appealed.
Courtesy of www.lawschoolcasebriefs.net

Issue
1) Can the contract be reformed to limit the quantity?
2) Is the requirements contract enforceable even though there is no specific quantity of output?

Holding
1) No
2) Yes

Rule
Both parties are bound to carry a contract in a reasonable way. The obligation of good faith and fair dealing towards each other is implied in every contract of this character.

Reasoning
–The contract was open; the amount of goods was intended to be indefinite. (UCC 2-306 Go to Notes)
–Room for re-negotiation

Notes
UCC §2-306 Output, Requirements (contracts) and Exclusive Dealings: (1) When there is no specified quantity by output of seller, the output must be done in good faith and reasonably. Don’t make contract illusory.
Defendant should have pleaded speculation by the plaintiff

Prince’s Takeaway
Requirements contracts allow a party to purchase from another, the quantity of a particular good as it requires, therefore the quantity term was intentionally left out since the purchaser cannot guess how much he would need.

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Prince’s Briefcase: Reis Robotics v. Concept Industries (Glannon Civil Procedure)


Prof. Glannon Civil Procedure: Responding to a Complaint (or Not!)

Here is a case from my Civil Procedure class which explains the rules of responding to a complaint–to strike and/or dismiss affirmative defenses and counterclaims. In this case, a plaintiff can strike and/or dismiss affirmative defenses by the defendant in its answer.

Case Name, Author, Citation
REIS ROBOTICS USA, INC. v. CONCEPT INDUSTRIES No. 06 CV 1430., 462 F.Supp.2d 897 (2006)

prince's briefcase (princesdailyjournal)Procedural History
Plaintiff (Reis Robotics) filed a complaint against Defendant (Concept Industries) for breach of contract. The defendant answered the complaint, asserted 6 affirmative defenses, and brought 1 counterclaims against the Plaintiff. The Plaintiff then moves to strike and dismiss Concept’s affirmative defenses; strike portions of concept’s answer; and dismiss Concept’s counterclaims.

Facts
Same as Procedural History

Issue
Are Reis Robotics’ motion to (1) strike and dismiss concept’s affirmative defenses; (2) strike portions of Concepts answer; (3) dismiss concepts counterclaim sufficient

Holding
1) Yes, go to Reasoning for explanation
2) Yes, go to Reasoning ” ”
3) Yes, go to Reasoning ” ”

Rule
Rule 12(f) A motion to strike are generally disfavored but are nonetheless useful.

Reasoning
For the reasons set forth above, Reis’s motion to strike affirmative defenses (R. 13), motion to strike portions of Concept’s answer (R. 17), and motion to dismiss Concept’s counterclaim (R. 21) are granted to the extent that:

1. Concept’s first, second, third, fourth, and fifth affirmative defenses are stricken without prejudice;

2. Concept’s sixth affirmative defense is stricken with prejudice;

3. Paragraphs 5, 6, 7, 15, 16, and 20 of Concept’s answer are stricken without prejudice;

4. Concept’s negligent misrepresentation counterclaim is dismissed with prejudice;

5. Concept’s overpayment counterclaim is dismissed without prejudice.

Reis’s motions are denied in all other respects. Concept shall file and serve an amended pleading that conforms to this order within 30 days of the date of this order.

From (http://www.leagle.com/decision/20061359462FSupp2d897_11280)

Disposition
Reis Robotics motions were granted in part and denied in part.

Notes
Rule 12(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.

Prince’s Takeaway
Affirmative defenses are pleadings, so they must be determined by their sufficiency.

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Prince’s Briefcase: Hunter v. Serv-Tech, Inc. (Glannon Civil Procedure)


Civil Procedure Glannon: Motions to Dismiss under Fed R. Civ. Pro 12

Here is a case from my Civil Procedure Course, which explains the importance of filing all Affirmative Defenses (or motions to dismiss) in the first responsive pleading–if not in your pre-trial answer. In this case, failing to do so will drag you back into court.

Case Name, Citation Number, Author
Hunter v. Serve-Tech, Inc., 6 Cal.4th 1174

prince's briefcase (princesdailyjournal)Procedural History
Hunter sued offshore (Serv-tech) on 11/19/2007. Offshore filed a motion to dismiss for insufficiency of service of process on 6/19/2008. Hunter then filed an amended complaint, then Offshore raised lack of Personal Jurisdiction as its third Affirmative Defense.

After Offshore conceded that Hunter had perfected service, Offshore again moved to dismiss for lack of Personal Jurisdiction on grounds that it lacked minimal contacts with Eastern District of Louisiana. Hunter opposed the motion arguing:
(1) Offshore waived Personal Jurisdiction pursuant to Rules 12(g)(2) and 12(h)(1), by filing it’s original pre-answer motion to dismiss without including it’s Personal Jurisdiction Defense in the motion.
(2) Offshore responded that the “reservation” language cited above in the original motion to dismiss was sufficient to put Hunter and other parties on notice that it challenged Personal Jurisdiction and that it had accordingly not waived the defense.

Facts
–11/19/2007: Hunter sued Offshore (Serv-Tech) and others.
–6/19/2008: Offshore filed a motion to dismiss for insufficiency of service of process. Defendants does not submit to the jurisdiction of this court. Defendants expressly reserve all rights to challenge the Subject Matter Jurisdiction and/or Personal Jurisdiction of this court over Defendants and/or raise other defenses to this claim.
–7/10/2008: Hunter filed an amended complaint
–9/11/2008: Offshore answered, raising lack of Personal Jurisdiction as its 3rd Affirmation

Issue
Did the Defendant raise Lack of Personal Jurisdiction in their first responsive pleading? At-all? And not just reserving.

Holding
No because offshore failed to raise lack of Personal Jurisdiction defense in their first responsive pleading, therefore he lost privileges to raise all Affirmative Defenses (including Personal Jurisdiction) in the subsequent pleadings

Rule
Rule 12(h)(1): requires that Personal Jurisdiction, venue, and service of process must be raised in the party’s first responsive pleading. *Defendants wishing to raise any of these 4 defenses must do so in their first responsive pleading, either a motion to dismiss or an answer. If not, the omitted defense is waived.

Rule 12(g)(2): a party that makes a motion to dismiss under Rule 12(b) prior to answering must consolidate all its Rule 12 defenses into one motion.
*If it omits any defenses delineated in Rule 12(b)(2)–(5) Go to Notes in a pre-answer motion to dismiss, that defense is waived.

Reasoning
–All Defenses under Rule 12(b)(2)-(5) must be made by motion once prior to filing
–Offfshore’s “reservation” language is not sufficient to preclude waiver pursuant to Rules 12(g)(2) and Rule 12(h)(1)
–Rule 12(g)(2) is specific about what a litigant must do to avoid waiving his 12(b)(2)-(5) defenses if he chooses to move for dismissal prior to answering: “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. Rule 12 (g)(2)
–“Reserve” is not good enough

Disposition
Offshore contractor’s motion to dismiss for lack of Personal Jurisdiction is Denied

Notes
Rule 12(b)(2)-(5) Defenses
(2) Lack of Personal Jurisdiction (Does the court have the power to drag a person in court?)
(3) improper venue (wrong court to sue a defendant in)
(4) insufficient process (wrong summons of which to serve a defendant)
(5) insufficient service of process (wrong method to serve a defendant with summons)
THE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Mitchell v. Archibald & Kendall (Example of 12(b)(6): failure to state claim—parking lot safety)
Takeaway: If the complaint does not allege a legal wrong, there is no need for the court to adjudicate the underlying facts at all. Plaintiff failed to adequately state breach of duty of care

Prince’s Takeaways
Under Rule 12(h)(1) raise all Affirmative Defenses in your first responsive pleading, no matter what. When in doubt list them all, the first time around–and do not reserve them for later!

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