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Civil Procedure Fall 2014
Acknowledgements: I undertook this project in the summer of 2013 with the hope of helping students avoid the high costs of textbooks, generating content that could be used and improved upon by others, and tailoring my materials to my own needs. I hope you will enjoy and disseminate it widely. This project is a team one and many people deserve credit. First, the H20 team for helping to create this product and teach me to use it: Dustin Lewis, Emily Ellis, Matthew McKay‎ and Shailin Thomas. Second, my team of RAs/TAs who helped me edit materials, generate new content, etc. They are: Jerry Cedrone, Jeremy Feigenbaum, Laura Myron, Ashwin Phatak, and Veronic Sauer. For Fall 2014, Noah Marks helped me to update the content to reflect the 2013 term and generally improve the materials. Finally, I thank my colleague Bill Rubenstein for letting me adapt some of the content he uses in his course.
- I. Glenn Cohen
  • 1 Introduction

    • 1.1 Substantive

    • 1.2 Theoretical

    • 1.3 Simple (?) Introductory Case

      • 1.3.1 FRCP 10(a)

      • 1.3.2 Doe v. United Services Life Insurance Company


        123 F.R.D. 437 (S.D.N.Y. 1988)

        John DOE, Plaintiff,

        No. 88 Civ. 5630 (RWS).
        United States District Court, S.D. New York.
        Dec. 13, 1988.

        [437] Plaintiff brought suit against life insurer for alleged discrimination and moved

        Scherzer & Palella, New York City, for plaintiff (Mark Scherzer, Thomas B. Stoddard, of counsel).

        Townley & Updike, New York City, for defendant (Richard R. Lutz, David O. Simon, of counsel).

        OPINION SWEET, District Judge.

        Plaintiff "John Doe" ("Doe") has moved for an order granting him leave to prose


        [438] cute this action under a pseudonym, sealing all court records in which his actual name, address, or employer appear and withholding this information from defendant United Services Life Insurance Company ("United Services") and any of United Services's witnesses unless they agree to a confidentiality order. United Services seeks to dismiss the complaint for failure to identify the plaintiff as Rule 10(a) of the Federal Rules of Civil Procedure requires. For the reasons set forth below, Doe's motion is granted to the extent set forth below and United Services's motion is denied.


        The Facts


        Doe currently works as a law clerk to a federal judge. During Doe's last year of law school, Doe and his father agreed to obtain a life insurance policy on Doe's life to secure his father's obligations as guarantor of Doe's student loans. In November of 1987, Doe and his father allegedly applied to United Services to purchase a $100,000 life insurance policy on Doe's life, naming Doe's father as beneficiary.


        As part of the application process, a United Services representative interviewed Doe and the company required that Doe undergo a physical examination. Doe alleges that United Services takes extra precautions in processing homosexuals' life insurance applications and that the company required the interview and blood test because-as a single male living in Greenwich Village with another male at the time of his application-Doe fit a homosexual profile.


        Because Doe allegedly admitted at the interview that he previously had been arrested for public intoxication and because his blood test revealed abnormally high levels of liver enzymes often associated with alcohol abuse, United Services added a $105 surcharge to Doe's premium, raising it from $155 to $260.


        Upon learning of his abnormal blood test results, Doe offered to retake the blood test, but United Services declined. After undergoing an independent blood test that yielded no abnormal results, Doe brought this lawsuit. Doe alleges he is heterosexual.


        Prior Proceedings


        Doe originally filed the complaint in this action in the Supreme Court of the State of New York, alleging violations of New York insurance law and discrimination based on sex, marital status, and sexual orientation. United Services removed the action and made the instant motion prior to answer.


        Pursuant to a state court ex parte order authorizing service of the pleadings under the name "John Doe," Doe served United Services with the complaint and an order to show cause returnable August 12, 1988, seeking leave to prosecute the action under a pseudonym and other protection of his identity. That motion was pending at the time United Services removed the case to federal court. Because motions pending in state court at the time of removal survive removal, this court made Doe's motion returnable. September 16, 1988, upon the moving papers originally filed in state court.


        After Doe initiated the lawsuit, United Services invited Doe·to submit to another blood test and offered to issue him a standard rate policy if his liver enzyme tests were within normal range. Doe declined, presumably to defeat a mootness claim and to assert his rights as alleged in the complaint.


        Proceeding Under a Pseudonym


        [1] According to Doe, the public's interest in eliminating unfair practices in the sale of insurance, Doe's privacy interest in not being publicly identified as a homosexual, and Doe's concern for his status as a law clerk for a federal judge favor permitting him to proceed pseudonymously. United Services denies that this case will require Doe to reveal confidential information about his sexual preference or practices and characterizes the action as involving a challenge to the company's decision to charge Doe a higher premium "due to a health risk unrelated to sexual activities," not one regarding homosexuality or susceptibility to AIDS. United Services also argues that permitting Doe to proceed pseudonymously will injure it by involving it in a highly publicized case while denying it the ability to defend itself from publicity or [439] to set the record straight by a full response.


        "Generally, lawsuits are public events and the public has a legitimate interest in knowing the pertinent facts." Free Market Compensation v. Commodity Exch., 98 F.R.D. 311, 312 (S.D.N.Y.1983). Accordingly, parties to a lawsuit usually should proceed under their real names. See Fed. R.Civ.P. 10(a) ("In the complaint the title of the action shall include the names of all the parties ...."); Fed.R.Civ.P. 17 ("Every action shall be prosecuted in the name of the real party in interest."); see also Coe v. United States Dist. Court for the Dist. of Colo., 676 F.2d 411, 415 (10th Cir.1982); Southern Methodist Univ. Ass'n v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979).


        Under special circumstances, however, courts have allowed parties to use fictitious names, particularly where necessary to "protect[ ] privacy in a very private mat­ ter." Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974); see, e.g:, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (abortion); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (birth control); Doe v. Mundy, 514 F.2d 1179 (7th Cir.1975) (abortion); Doe v. Alexander, 510 F.Supp. 900 (D.Minn.1981) (transexuality); Doe v. Harris, 495 F.Supp. 1161 (S.D.N.Y.1980) (mental illness); Doe v. McConn, 489 F.Supp. 76 (S.D.Tex.1980) (transexuality); Doe v. Shapiro, 302 F.Supp. 761 (D.Conn.1969) (welfare rights of illegitimate children), appeal dismissed, 396 U.S. 488, 90 S.Ct. 641, 24 L.Ed.2d 677, reh'g denied, 397 U.S. 970, 90 S.Ct. 991, 25 L.Ed.2d 264 (1970).


        Cases where a party risks public identification as a homosexual also raise privacy concerns that have supported an exception to the general rule of disclosure. See, e.g., Doe v. Weinberger, 820 F.2d 1275 (D.C.Cir. 1987), cert. granted, — U.S. —, 108 S.Ct. 1073, 99 L.Ed.2d 233 (1988); Doe v.
        United States Air ·Force, 812 F.2d 738 (D.C.Cir.1987); Doe · v. Department of Transp., 412 F.2d 674 (8th Cir.1969); Doe v. Commonwealth’s Attorney for City of Richmond, 403 F.Supp. 1199 (E.D.Va. 1975), aff'd, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 reh'g denied, 425 U.S. 985, 96 S.Ct. 2192, 48 L.Ed.2d 810 (1976); Doe v. Chaffee, 355 F.Supp. 112 (N.D.Ca1.1973). Concern to avoid public identification as a homosexual is heightened in light of the widespread public fear engendered by the Acquired Immunodeficiency Syndrome ("AIDS") crisis. Cf. Doe v. Rostker, 89 F.R.D. 158, 161 (proceeding anonymously is appropriate where issues in case present a risk of "some social stigma").


        [2] Doe may well be publicly identified as homosexual, despite the fact that Doe contends–and United Services concedes that he is heterosexual. Doe's complaint alleges that United Services discriminated against him because it suspected that he was homosexual, and by bringing this action Doe seeks to vindicate the rights of homosexuals. Moreover, Doe is represented in this case by attorneys cooperating with Lambda Legal Defense and Education Fund, Inc., an organization widely recognized for its efforts in defending the rights of lesbians and gay men.[1]


        Significantly, this is not a case in which permitting Doe to proceed pseudonymously will disadvantage United Services. United Services already knows Doe's true identity, it will have full discovery rights as the case progresses, and it will only be barred from using or disclosing the fruits of its discovery for purposes other than the defense of this action.




        For· the reasons set forth above, Doe's motion is granted upon the conditions set forth in connection with the denial of United Services's motion.


        It is so ordered.


        [1] One of the reasons Doe offers for prosecuting this case under a pseudonym involves the effect this case might have on his status as a law clerk to a federal judge. This court's decision to permit Doe to proceed pseudonymously reflects a concern for his public identification as a homosexual, not a concern for his employment status. Courts should not permit parties to proceed pseudonymously just to protect the parties' professional or economic life. See Coe v. United States Dist. Court for the Dist. of Colo., 676 F.2d 411 (10th Cir.1982); Southern Methodist Univ. Assn v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979).

  • 2 The Basics of Pleading and Rule 11

    • 2.1 The "old" Days: Pre-FRCP

      • 2.1.1 Pleading” from Yeazell, Civil Procedure, 7th Edition (also read notes 2 and 3 following)

      • 2.1.2 Cheat Sheet on Basics of Civil Litigation

        To help you understand civil litigation, let's go over a few basics.


        Claim: Under the Federal Rules of Civil Procedure, a “claim” is the group of circumstances for which a court will grant relief (sometimes it is also called a "cause of action").

        Element: Each claim is divided into parts, called “elements.”

        Prima Facie Case: When the judge asks what a lawyer’s prima facie case is, she may either be asking for the elements of the claim or a short description of the evidence the lawyer has for each of those elements.


        Winning in Civil Litigation:

        In order to win in civil litigation, a plaintiff has three obligations.  The plaintiff must first state a claim for which they are entitled to relief (and in some cases, state facts underlying the claim).  This is sometimes referred to as the "burden of pleading". Second, the plaintiff must meet a "burden of production" by submitting evidence to permit a reasonable person to find each element of the claim.  Third, the plaintiff must ultimately meet a "burden of persuasion" by persuading the fact finder that each element is true.  The burdens are like successive hurdles in the Olympics with the course of civil litigation being like the race. Once you jump over one you then face the second and then the third.

        Sample Claims:

        When a claim/cause of action is created by state law, that is where you will find a list of its elements (either by statute or less often by the work of common law judges). When federal law creates the cause of action, that is where you will find the elements. Many of your first year classes are about learning what these elements are and how they work. To give you an example, here are a few common civil causes of action you may already have encountered.

        Assault: (1) intent to cause harmful or offensive contact; and (2) imminent apprehension of such contact.

        Defamation: (1) false and defamatory statement; (2) publication not privileged; (3) fault (in some cases negligence and in some cases malice); (4) injury; and (5) recipient understood communication refers to plaintiff.

        Negligence: (1) duty; (2) breach; (3) cause-in-fact; (4) proximate cause; and (5) injury.

        Trespass: (1) unauthorized entry by defendant; (2) property possessed by plaintiff; and (3) injury (damage).

    • 2.2 Pleading Basics in the FRCP system

    • 2.3 Responding to the Complaint by Answer (possibly followed by Reply)

      • 2.3.1 FRCP 7

      • 2.3.2 FRCP 12(a)

      • 2.3.3 FRCP 8(b) and (c)

      • 2.3.4 Cheat Sheet on Responding to a Complaint

        Basics about Answers

                    When faced with a complaint, defense lawyers have a variety of tools they can use to respond.  An answer to a complaint can contain four different types of responses.  First, it can contain admissions and denials to the particular points made in the plaintiff’s complaint (see the Catalona answer as an example).  Second, it can contain defenses under FRCP 12(b) (e.g., lack of subject matter or personal jurisdiction, improper venue, or failure to state a claim).  Third, the answer can contain affirmative defenses under FRCP 8(c).  Finally, the answer can contain counterclaims and cross-claims under FRCP 13 that were not mentioned in the complaint (we will discuss both in a later portion of the course).  Defense counsel can also choose to add an additional defendant to a counterclaim, or can choose to otherwise add parties. One of the major purposes of the Answer in the FRCP system is to help narrow the issues that will be litigated and allow the court and the other party to understand which controversies are "live" ones.


        Admissions and Denials

                    Under FRCP 8(b), a party is required to admit or deny each averment in the complaint, except when the party “lacks knowledge or information sufficient to form a belief about the truth of an allegation.”  The answer may deny specific allegations, whole paragraphs, or the entire complaint. FRCP 11, which we will study shortly, is what keeps defendants honest in their answer. Defendants are often reluctant to admit anything in a complaint—particularly legal conclusions (e.g., Def was negligent)—because doing so causes those conclusions to be binding for the rest of the trial unless the answer is amended.

                     Defense counsel should be especially cautious in admitting and denying an entire sentence in a complaint when they only mean to deny portions of it.  In Zielinski v. Philadelphia Piers, Inc., 139 F. Supp. 408 (D.C. Pa. 1956), the plaintiff alleged that a vehicle “owned, operated, and controlled” by the defendant was negligently caused to come into contact with the plaintiff and to injure him.  The defendant denied the entire paragraph of averments, when he easily could have admitted that the accident happened, that the defendant owned the vehicle, and that there was some injury to the plaintiffs.  Did the defendant lie when he denied that he “owned, operated, and controlled” the vehicle when he did own the vehicle?  It is a close question; perhaps you could argue that he denied the conjunction of the three verbs.  In this case the plaintiff sued the wrong defendant and by the time the plaintiff realized the statute of limitations had already run. To punish the defendant for what it viewed as a surreptitious use of the denial mechanism, the court ruled that the defendant should be treated as though it had admitted operation and control of the vehicle in question. That is pretty harsh medicine, and few courts would go so far to punish a defendant who technically plead the truth. Nonetheless, the case is illustrative of how important choosing when to admit and when to deny can be in the answer. There is also a lesson to be learned for the plaintiff who drafted that complaint, never put an "and" into a single line of the complaint where the denial could be read as denying merely the conjunction. It would have been better to plead in the complaint separate statements about ownership, operation, and control.

                    Although defense counsel may state that they “lack knowledge or information sufficient to form a belief about the truth of an allegation,” pleading that way should not be done lightly.  Some jurisdictions specifically prohibit "evasive denials."  See, e.g., Conn. Gen. Stat. Ann. § 10-47 ("where any matter of fact is alleged with diverse circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much as is true and material should be stated or admitted, and the rest only denied.").  Also consider Greenbaum v. United States, 360 F. Supp. 784 (E.D. Pa. 1973), in which the Government was the defendant:

        An answer of lack of knowledge or information will usually be deemed a denial.  A party, however, may be held to the duty to exert reasonable effort to obtain knowledge of a fact. . . . In the present case defendant failed to examine available, highly relevant Government documents which would have given a basis for the belief that plaintiff was not a business invitee and that the Court did not have jurisdiction under the FTCA.  A fact which is denied for lack of knowledge or information may be deemed admitted if the matter is one to which the party does have knowledge or information. . . . The government will be held to an admission that plaintiff was a business invitee at the time of the accident. . . .


        Affirmative Defenses

                    Defendants may also make affirmative defenses, in which the defendant makes the claim that even if the plaintiff wins on its claims in the complaint, the defendant still wins the case for another reason.  Defendants  have the burdens of pleading, production, and persuasion as to all elements of affirmative defenses.  For the most part, if a defendant fails to raise an affirmative defense in the answer, the defendant has waived it unless an amendment of the answer is allowed.  This is particularly so for the list of nineteen affirmative defenses listed in FRCP 8(c).  For other affirmative defenses some courts have been less strict, allowing some affirmative defenses that were not plead in the answer absent a showing of prejudice to the plaintiff.  See, e.g., Proctor v. Fluor Enterprises, Inc., 494 F.3d 1337, 1351 (11th Cir. 2007) (“The general rule of waiver is more easily applied when a party fails to set forth one of the nineteen defenses specifically listed in Rule 8(c); waiver becomes less clear when a party fails to assert affirmatively some ‘other matter’ that pre-existing federal case law has not clearly construed as ‘constituting an avoidance or affirmative defense’ under Rule 8(c).”). Still, when you are practicing you never want to put yourself in the position of having to rely on a court to let you slip in an affirmative defense. If it forbids you from doing so at a later date, your client may sue you for legal malpractice!



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