Christmas presents for civil procedure fans

A couple of recent appellate decisions may be the type that only civil procedure nerds could love.  But they offer important lessons about how to handle the beginning and the ending of litigation.

Yesterday the Ninth Circuit, in PAE Government Services, Inc. v. MPRI, Inc., addressed whether a plaintiff can be penalized for alleging facts in an amended complaint that contradict the original complaint.  The district court judge found the amended allegations to be "sham pleadings," striking them and dismissing the complaint.  The Ninth Circuit panel reversed, stating "there is nothing in the Federal Rules of Civil Procedure to prevent a party from filing successive pleading that make inconsistent or even contradictory allegations."  While a bad faith filing could result in Rule 11 sanctions, no such sanctions are allowed unless the party is given an opportunity to respond.  Because the district court did not invoke Rule 11's procedural safeguards, it had no grounds to strike the pleading.

And last week the Oregon Court of Appeals took a hard look at one of the last steps in litigation - designating the record on appeal following a trial.  In Ferguson v. Nelson, plaintiffs contended that the trial court erred when it declined to give various proposed jury instructions.  Reversal based on failure to give a jury instruction "is warranted only if the requested instruction both accurately states the law in question and is supported by the evidence when viewed in the light most favorable to the party requesting the instruction," the Court of Appeals stated.  Plaintiffs had failed to designate most of the trial testimony when asking the court to prepare the record on appeal, making it impossible for the Court of Appeals to determine whether the evidence supported the requested instructions.  On that basis, the court refused to consider whether the instructions were erroneous, and it affirmed the judgment for defendant.