Civil Procedure -- Professor Janus -- Fall 1993

Practice Exam -- Sample Answers

Sample Answer Comments

Question 1. Label each answer with the applicable question number.

The defendant has moved to dismiss, or, in the alternative, for a more specific statement. My answer will discuss whether the court should grant either motion in turn. A short introductory paragraph is helpful. Note that the second sentence gives the reader some indication as to how the answer will be organized. This is important, particularly if the answer is at all complex.

I will first discuss the motion to dismiss for failure to state a claim. This motion is made pursuant to Rule 12(b)(6). A motion under 12(b)(6) could be granted for several reasons. Some of the reasons concern whether the legal claim asserted by the complaint is a cognizable legal claim. Here, the claim is for breach of contract which, I will assume, is recognized in the jurisdiction. Thus, there would be no basis for dismissing the complaint on that basis. Organizational cue starts this portion of the answer. This shows that you understand how to analyze (i.e., structure) this problem.
Identify the applicable rule. Begin the analysis of this portion. Note that the analysis begins by indicating that there are "several" threads which could be followed. This is a civil procedure exam, not a contracts exam. Therefore, do not discuss contracts issues. If necessary, state a reasonable assumption about what the substantive law is.

Another reason for dismissing a complaint under Rule 12(b)(6) is that it does not adequately set out the elements of the claim being asserted. Here, we must refer to Rule 8(a) which sets out the standard to be used for judging whether a complaint has enough detail. Rule 8(a) says that a complaint must contain a "short and plain statement . . . showing that the pleader is entitled to relief." In general, courts interpret this command very liberally, looking to see whether the complaint adequately carries out its function of giving notice to the defendant. Under the Rannels approach, the court takes a flexible approach to pleading, bending over backwards to find the needed elements in the complaint. Note the organizational cue "Another reason ..."
Applicable rule is referred to specifically, along with the reason why the rule is relevant here: to see if the complaint has enough detail. The relevant portion of the rule is alluded to . Here, I have included a brief quote. Do not quote extensively. You must show, however, that you know which are the key operative parts of the rule for purposes of your analysis. An allusion to the policy underlying the rule may help apply the rule to these facts. A specific case (Rannels) is cited for the purpose of referring to the way in which the rule is interpreted and applied.

Applying these standards to the facts given, we look at the complaint Katz has served. This complaint does not have a lot of details. However, it identifies which transaction is involved (the contract) and what the nature of the plaintiff's claim is (breach). It does not give specifics about the nature of the breach. A court taking a liberal approach would probably find this complaint sufficient, because it seems to give the defendant enough to proceed to the discovery stage.
Some courts take a stricter approach to pleading. A court taking a stricter approach might strike this complaint down. Its allegations are conclusory ("breach") and do not specify the factual basis for the conclusions. The strict approach, however, is generally not applied in common areas of litigation like contract claims, and has now been rejected in other areas, such as civil rights litigation, where it has sometimes been applied in the past. (Leatherman) Therefore, I would not expect the court to apply such a strict approach here.
If there are alternate possibilities for your analysis, they should be applied. You must use your judgment about how far afield you should go in discussing other possible analyses. Your answer must show that you are aware of the relevant and likely strands of analysis. This answer briefly discusses the alternate "strict" method of pleading analysis. It shows how that analysis would be applied here, and then states why it probably would not be used by the court.

I turn now to the second part of the motion, the request for a more definite statement. This request is based on rule 12(e). Organizational cue. Applicable rule.

Rule 12(e) allows a court to order a party to be more specific in its complaint if the pleading is so "vague or ambiguous" as to make it too difficult for the defendant to frame an answer. This rule is rarely used, because, in general, courts rely on discovery to flesh out a pleading. Pointing out the relevant parts of the applicable rule. Briefly describing the policy underlying the rule, as applicable to these facts.

The analysis of this part of the motion would involve the same considerations as did the earlier analysis of the motion to dismiss. As indicated there, though this answer is somewhat sketchy and conclusory, it probably satisfies the liberal requirements of Rule 8(a). Since it identifies which contract is involved and what legal theory the plaintiff is proceeding on, the defendant probably could frame an answer. Therefore, the motion would probably be denied. Where the analysis is similar to what you have written before, cross-reference rather than repeat.

Question 2.

There are two major groups of civil procedure issues involved in the request to amend the answer. First, i will discuss whether the amendment should be allowed. Second, I will discuss whether the defenses in the amended answer are properly asserted or whether they have been waived. The answer begins by discussing the organization of the analysis.

Allowance of the amendment: Organizational cue.

First, I will discuss whether the amendment should be allowed. This is governed by rule 15(a). Since the amendment is being proposed more than 20 days after the answer was served, the defendant cannot make the amendment "as a matter of course," but must get permission from the court (or the other side). ID applicable rule. ID which part of the rule is applicable (exclude "as a matter of course")

Rule 15(a) provides the standard the court must use in determining whether to approve of an amendment to a pleading. Court approval must be "freely given" where "justice so requires." Under this liberal standard, the party opposing the amendment (here, the plaintiff) must show good reasons for not allowing it. In particular, the plaintiff must show "undue prejudice" if the amendment is allowed. Further identification of the portion of the rule which is applicable, and discussion of how that portion of the rule is interpreted.

The facts are sketchy as to whether the plaintiff would be prejudiced by an amendment. We must look to see if the plaintiff's ability to present its claim on the merits will be impaired by the amendment. The key fact relevant to this is that discovery is completed. Discovery might be very relevant, especially as to paragraph 4 of the proposed answer, dealing with excuse for "business necessity." If plaintiff can show that its ability to meet this defense is impaired without discovery, this would be the kind of prejudice which might defeat the motion to amend (at least as to that portion of the proposed answer). The court would compare the prejudice to plaintiff with the harm which defendant would suffer if not allowed to present its case on the merits. The resulting decision would be an exercise of the court's discretion. Here, the answer applies the standards set out in the rule to the particular facts of this case. Note that if the facts are insufficient to draw a firm conclusion, you must discuss what types of facts you would need to do your analysis.

Appropriateness of presentation of defenses Organizational cues.

I will now discuss whether the three defenses are appropriately made in this amendment answer. I will address each one separately. This is a relatively complex answer. Give good organizational signals so the reader understands your organization.

Improper venue. The defense of improper venue is governed by rule 12(b)(3). Such a defense is appropriately pleaded in an answer (see 12(b)), but is subject to waiver if not properly presented. Waiver of this defense is governed by rule 12(h)(1). Clause (B) is applicable, because this defense was not made by motion, and it was not in the original answer. Since the amendment in which the defense is included is not one made "as a matter of course" (see above). Therefore, the defense is waived. Show that you understand how the applicable rule works and is applied to the particular facts given.

Lack of subject matter jurisdiction. This defense is also governed by rule 12(b), which provides that it may be asserted in a pleading. It is not included in 12(h)(1) which describes waiver. Further, 12(h)(3) says that this defense can be raised at any time. Therefore, this defense is properly asserted.

Excuse of business necessity. This is not one of the special defenses which can be raised by motion under rule 12(b). Therefore, we do not have to worry about waiver under 12(h). It appears to be an affirmative defense, which, under rules 12(b) and 8(c) is appropriately raised in the answer. Therefore, this is an appropriate amendment to the answer.

Sample Answer	*Comments*
Question 1.	Label each answer with the applicable question number.
The defendant has moved to dismiss, or, in the alternative, for a more specific statement. My answer will discuss whether the court should grant either motion in turn.	A short introductory paragraph is helpful. Note that the second sentence gives the reader some indication as to how the answer will be organized. This is important, particularly if the answer is at all complex.
I will first discuss the motion to dismiss for failure to state a claim. This motion is made pursuant to Rule 12(b)(6). A motion under 12(b)(6) could be granted for several reasons. Some of the reasons concern whether the legal claim asserted by the complaint is a cognizable legal claim. Here, the claim is for breach of contract which, I will assume, is recognized in the jurisdiction. Thus, there would be no basis for dismissing the complaint on that basis.	Organizational cue starts this portion of the answer. This shows that you understand how to analyze (i.e., structure) this problem. Identify the applicable rule. Begin the analysis of this portion. Note that the analysis begins by indicating that there are "several" threads which could be followed. This is a civil procedure exam, not a contracts exam. Therefore, do not discuss contracts issues. If necessary, state a reasonable assumption about what the substantive law is.
Another reason for dismissing a complaint under Rule 12(b)(6) is that it does not adequately set out the elements of the claim being asserted. Here, we must refer to Rule 8(a) which sets out the standard to be used for judging whether a complaint has enough detail. Rule 8(a) says that a complaint must contain a "short and plain statement . . . showing that the pleader is entitled to relief." In general, courts interpret this command very liberally, looking to see whether the complaint adequately carries out its function of giving notice to the defendant. Under the Rannels approach, the court takes a flexible approach to pleading, bending over backwards to find the needed elements in the complaint.	Note the organizational cue "Another reason ..." Applicable rule is referred to specifically, along with the reason why the rule is relevant here: to see if the complaint has enough detail. The relevant portion of the rule is alluded to . Here, I have included a brief quote. Do not quote extensively. You must show, however, that you know which are the key operative parts of the rule for purposes of your analysis. An allusion to the policy underlying the rule may help apply the rule to these facts. A specific case (Rannels) is cited for the purpose of referring to the way in which the rule is interpreted and applied.
Applying these standards to the facts given, we look at the complaint Katz has served. This complaint does not have a lot of details. However, it identifies which transaction is involved (the contract) and what the nature of the plaintiff's claim is (breach). It does not give specifics about the nature of the breach. A court taking a liberal approach would probably find this complaint sufficient, because it seems to give the defendant enough to proceed to the discovery stage. Some courts take a stricter approach to pleading. A court taking a stricter approach might strike this complaint down. Its allegations are conclusory ("breach") and do not specify the factual basis for the conclusions. The strict approach, however, is generally not applied in common areas of litigation like contract claims, and has now been rejected in other areas, such as civil rights litigation, where it has sometimes been applied in the past. (Leatherman) Therefore, I would not expect the court to apply such a strict approach here.	If there are alternate possibilities for your analysis, they should be applied. You must use your judgment about how far afield you should go in discussing other possible analyses. Your answer must show that you are aware of the relevant and likely strands of analysis. This answer briefly discusses the alternate "strict" method of pleading analysis. It shows how that analysis would be applied here, and then states why it probably would not be used by the court.

I turn now to the second part of the motion, the request for a more definite statement. This request is based on rule 12(e).	Organizational cue. Applicable rule.
Rule 12(e) allows a court to order a party to be more specific in its complaint if the pleading is so "vague or ambiguous" as to make it too difficult for the defendant to frame an answer. This rule is rarely used, because, in general, courts rely on discovery to flesh out a pleading.	Pointing out the relevant parts of the applicable rule. Briefly describing the policy underlying the rule, as applicable to these facts.
The analysis of this part of the motion would involve the same considerations as did the earlier analysis of the motion to dismiss. As indicated there, though this answer is somewhat sketchy and conclusory, it probably satisfies the liberal requirements of Rule 8(a). Since it identifies which contract is involved and what legal theory the plaintiff is proceeding on, the defendant probably could frame an answer. Therefore, the motion would probably be denied.	Where the analysis is similar to what you have written before, cross-reference rather than repeat.
Question 2.
There are two major groups of civil procedure issues involved in the request to amend the answer. First, i will discuss whether the amendment should be allowed. Second, I will discuss whether the defenses in the amended answer are properly asserted or whether they have been waived.	The answer begins by discussing the organization of the analysis.
Allowance of the amendment:	Organizational cue.
First, I will discuss whether the amendment should be allowed. This is governed by rule 15(a). Since the amendment is being proposed more than 20 days after the answer was served, the defendant cannot make the amendment "as a matter of course," but must get permission from the court (or the other side).	ID applicable rule. ID which part of the rule is applicable (exclude "as a matter of course")
Rule 15(a) provides the standard the court must use in determining whether to approve of an amendment to a pleading. Court approval must be "freely given" where "justice so requires." Under this liberal standard, the party opposing the amendment (here, the plaintiff) must show good reasons for not allowing it. In particular, the plaintiff must show "undue prejudice" if the amendment is allowed.	Further identification of the portion of the rule which is applicable, and discussion of how that portion of the rule is interpreted.
The facts are sketchy as to whether the plaintiff would be prejudiced by an amendment. We must look to see if the plaintiff's ability to present its claim on the merits will be impaired by the amendment. The key fact relevant to this is that discovery is completed. Discovery might be very relevant, especially as to paragraph 4 of the proposed answer, dealing with excuse for "business necessity." If plaintiff can show that its ability to meet this defense is impaired without discovery, this would be the kind of prejudice which might defeat the motion to amend (at least as to that portion of the proposed answer). The court would compare the prejudice to plaintiff with the harm which defendant would suffer if not allowed to present its case on the merits. The resulting decision would be an exercise of the court's discretion.	Here, the answer applies the standards set out in the rule to the particular facts of this case. Note that if the facts are insufficient to draw a firm conclusion, you must discuss what types of facts you would need to do your analysis.
Appropriateness of presentation of defenses	Organizational cues.
I will now discuss whether the three defenses are appropriately made in this amendment answer. I will address each one separately.	This is a relatively complex answer. Give good organizational signals so the reader understands your organization.
Improper venue. The defense of improper venue is governed by rule 12(b)(3). Such a defense is appropriately pleaded in an answer (see 12(b)), but is subject to waiver if not properly presented. Waiver of this defense is governed by rule 12(h)(1). Clause (B) is applicable, because this defense was not made by motion, and it was not in the original answer. Since the amendment in which the defense is included is not one made "as a matter of course" (see above). Therefore, the defense is waived.	Show that you understand how the applicable rule works and is applied to the particular facts given.
Lack of subject matter jurisdiction. This defense is also governed by rule 12(b), which provides that it may be asserted in a pleading. It is not included in 12(h)(1) which describes waiver. Further, 12(h)(3) says that this defense can be raised at any time. Therefore, this defense is properly asserted.
Excuse of business necessity. This is not one of the special defenses which can be raised by motion under rule 12(b). Therefore, we do not have to worry about waiver under 12(h). It appears to be an affirmative defense, which, under rules 12(b) and 8(c) is appropriately raised in the answer. Therefore, this is an appropriate amendment to the answer.