#11016 - Pleadings - Civil Procedure

Pleading Functions

1. Notice *

2. State relevant facts *

3. Narrow issues

4. Guide for discovery

5. Expose Insubstantial Claims

6. Separate Factual & Legal Issues

Rule 7: Types of pleadings allowed

Rule 8: A pleading that states a claim for relief must contain:

1. a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

2. a short and plain statement of the claim showing that the pleader is entitled to relief; and

   1. e.g. include “negligently” to indicate a claim of negligence

3. a demand for the relief sought, which may include relief in the alternative or different types of relief

Plausibility standard (Iqbal) to survive motion to dismiss for failure to state a claim under Rule 12(b)(6):

1. Isolate legal allegations and conclusory statements

   1. Bare assertions that are nothing more than formulaic recitation of the elements of a claim are conclusory and not entitled to assumption of truth.

2. The remainder of allegations must contain sufficient facts to state a claim that is plausible.

Policy: Iqbal, Towmbly

1. Iqbal is good

   1. Control the cost of discovery

   2. Function as a gateway to proceedings under generous discovery provision of FRCP

   3. Fewer cases will pass the motion to dismiss and therefore fewer judicial resources will be wasted.

2. Flaw of Iqbal:

   1. It is the role of discovery, not complaint, to sort out the facts. It is sometimes difficult to find evidence before discovery

   2. The Iqbal rule has the potential of denying plaintiffs with meritorious claims in court by raising insurmountable hurdles at the pleading stage.

   3. Making a judgment under the Iqbal rule comes close to deciding facts that should be decided by jury

   4. Rule 11(b)(3) appears to allow the P to sue without knowing the facts necessary to establish a claim, so long as she has reason to believe that she will likely have evidentiary support after investigation or discovery.

   5. Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. A court must take the allegations as true, unless they are sufficiently fantastic as to defy reality, no matter how skeptical the court may be. Therefore should follow Rule 11 standards.

Pleading alternatively or inconsistently

1. Under Rule 8(d)(3) P may assert as many alternative versions of the claim as he has evidence to support, may include both legal and equitable claims in the same complaint, and may assert different versions of a claim regardless of consistency.

2. It must be within the ethical limits of Rule 11.

Rule 11

1. Ethical limits on legal allegations: the representations are formed after an inquiry reasonably under the circumstances

   1. Law prong: Rule 11(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law

      1. Can argue for reversal or modification of existing law or establishment of new law.

   2. Fact prong: Rule 11(b)(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

      1. Factual allegation: must have evidentiary support

      2. Specifically identified factual allegation: will likely have evidentiary support

         1. However, if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention.

2. Sanctions

   1. Motion for sanctions by the opposite party:

      1. Must be filed independently – cannot combine with other motion

      2. Other side has 21 days to withdraw problematic complaint (safe harbor).

         1. Rationales for safe harbor provision: encourage novel claims/ new challenges; encourage lawyers to talk; protect judicial resources

         2. Rationales against safe harbor provision: encourage inadequate investigation/ unfounded claims

   2. On the court’s initiative

      1. In this case, no attorney fee can be awarded

   3. Factors in determining necessity of sanction, a court has significant discretion

      1. Objective standard: eliminate any empty-head pure-heart justification for patently frivolous arguments.

         1. New law: need more clarification, not sure if it is constitutional

         2. Old law: old interpretation no longer applies/ policy consideration no only valid in current day.

      2. Whether the improper conduct was willful, or negligent

      3. Whether it was part of a pattern of activity, or an isolated event

      4. Whether the person has engaged in similar conduct in other litigation

      5. Whether it was intended to injure

      6. What effect it had on the litigation process in time or expenses

      7. Whether the responsible person is trained in the law

      8. What amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case/ similar activity by other litigants

   4. This rule does not apply to discovery Rule 11d

      1. E.g. In discovery, motions requesting documents/ to compel are frivolous, but no rule 11 violation, see 11d, but rule 26f violation.

Default: Rule 55

1. A defendant who fails to respond to the complaint can have a default judgment entered against her.

Pre-answer motions: see, p429 question 1 and 2

1. Rule 12(b) list+ Rule 12(e) motion for a more definite statement

2. D never has to make a pre-answer motion: D may raise any of these seven objections in Rule 12(b) in the answer instead.

3. No repeated pre-answer motion: 12(g)(2): Except as provided in Rule 12(h)(2) or (3), 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.

   1. It does NOT say that an omitted objection is waived; it simply says that the D can’t make another pre-answer motion based on it.

   2. D can make a second pre-answer motion to raise an objection unavailable when she made the first.

      1. E.g. First motion for a more definite statement. Second motion to dismiss under 12(b)(3). This is allowed if the indefinite statement makes the motion to dismiss unavailable when the first motion was made.

4. 12(b)(6) motion to dismiss for failure to state a claim: court can only look at pleading and answer in deciding this motion, cannot look at evidentiary support or anything else.

Waiver: 12(b)(2) to (5) (that is, personal jurisdiction, venue, sufficiency of process, and sufficiency...