Tuesday, October 25, 2011

Outline of Modern Pleading for Civil Procedure


  1. [Rule 8(a)] created the liberal notice pleading standard, requires only "a short and plain statement of the claim showing that P is entitled to relief."
    • Evolution of requirements to survive [Rule 12(b)(6)] motions (test of legal sufficiency of the complaint, not evidentiary sufficiency):
      • Complaint should not be dismissed unless P can prove "no set of facts" in support of the claim that would entitle him to relief.
      • Complaint that fails to cite a statute or to cite the correct one, in no way affects the merits of a claim.
      • Complaint that follows [Rule 8(a)(2)] can still be dismissed if it fails to state a legal claim.
      • Complaint must have "enough facts to state a claim to relief that is plausible on its merits," must cross the line from "conceivable to plausible". (Twombly)
      • Complaint cannot merely be comprised of only "conclusory statements that do not have to be assumed as true." (Iqbal)
    • Heightened pleading standards
      • [Rule 9(b)] requires that "circumstances constituting fraud or mistake must be stated with particularity."
      • If a heightened pleading standard isn't required by [Rule 9(b)] or expressly by statute, there probably isn't one.


  1. Liberal Pleading Standard and Complaints:
    1. From [Rule 8(a)], Complaint must contain "a short and plain statement" of the court's jurisdiction, of the P's claim, and a demand for relief.
      1. Each allegation must be simple, direct, and concise. No technical form required.
      2. Pleadings must state a claim on which relief may be granted.
      3. Conley v. Gibson: all the Rules require is "a short and plain statement of the claim showing that the pleader is entitled to relief."
        1. Twombly refined this somewhat and requires a somewhat more out of pleadings. "We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the Ps have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed."
          1. Two working principles underlie Twombly.
            -First, the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.
            -Second, determining whether a complaint states a plausible claim is context-specific, requires the reviewing court to draw on its experience and common sense.
          2. This was a large victory for the Ds; this pleading standard created a wave of "Twombly motions."
        1. Iqbal held that [Rule 8] through Twombly requires more than just conclusory statements. Since these statements do not have to be assumed as true, there was nothing stated in the complaint which entitled Iqbal to recovery.
    1. [Rule 9(b)] tries to protect a defending party's reputation from harm by setting a heightened pleading standard for certain complaints in the areas of mistake and fraud.
      1. Some courts have also required heightened pleading standards for cases of libel, slander, and defamation.
      2. Leatherman, SCOTUS ruled that the court could not invoke a heightened pleading standard for 42 USC 1983 civil rights cases (use summary judgment and control of discovery to ferret out unmeritorious cases, not pleadings).
      3. If a heightened pleading standard is not required by [Rule 9(b)] or by statute, you most probably don't need one.
    1. [Rule 11(b)] requires that the attorney has performed an inquiry reasonable under the circumstances to ensure that the factual contentions of the complaint have proper evidentiary support.

  2. Defendant's Answers:
    1. [Rule 8(b)], D must admit or deny each allegation in complaint.
      1. Denial may also be based on the D's lack of knowledge or information sufficient to form a belief about the truth of an allegation.
      2. Failure to deny an allegation is treated as an admission.
    1. Answer must also contain any affirmative defenses [Rule 8(c)] or counterclaims [Rule 13(a)].

  3. [Rule 12(b)] Motions to Dismiss
    1. D must file these motions before filing his answer.
      1. Lack of subject matter jurisdiction
      2. Lack of personal jurisdiction
      3. Improper venue
      4. Insufficient process
      5. Insufficient service of process
      6. Failure to state a claim upon which relief can be granted
        1. Failure to State a Claim [Rule 12(b)(6)] (see Twombly, Iqbal)
          1. The purpose of a motion to dismiss for failure to state a claim is to test legal validity of the P's allegations, not their factual truth.
            1. Court does not ask whether P is likely to prove their factual allegations.
            2. Instead, Court assesses the legal validity of the claims asserted.
          1. In ruling on a failure to state a claim motion, court must assume that the facts alleged in the complaint are true.
            1. Ask: If all the facts are true, do they set forth a claim for which the court could grant P some type of remedy?
        1. From Northrop, In ruling on a [Rule 12(b)(6)] motion, the failure in a complaint to cite a statute or to cite the correct one, in no way affects the merits of a claim."
        2. From Kirksey, a complaint that followed [8(a)(2)] was still dismissed because it failed to state a valid legal claim.
        3. Northrop and Kirksey can be reconciled since the burden of identifying a legal theory shifts form the P once the D makes a [12(b)(6)] motion and plausibly demonstrates that there is no legal theory available to provide relief under the facts asserted.
      1. Failure to join a party under [Rule 19]
Historical Functions of Pleading
[1. Providing Notice of the Party’s claim or defense.] Only one relevant in modern pleading.
2. Identifying baseless claims.
3. Setting each party’s view of the facts.
4. Narrowing the issues.
-(Notice Pleading) The purpose of modern pleading is to give notice of claims and defenses adequate for the opposing party to make discovery requests and prepare for trial.
Three types: Complaint, answer, and (sometimes) reply.
-As long as the pleader asserts some theory that would entitle the claimant to relief, the pleading is sufficient.
Rule 11
“The need to deter baseless claims could be achieved by requiring a short and plain statement of the claim showing the plaintiff is entitled to relief, together with a certification that the pleadings are not frivolous”
Rule 56 (motion for summary judgment).
“provisions designed expressly to screen claims on the merits.”

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