FRCP 07: Types of Pleadings; Forms of Motions in General

FRCP 08: General Rules of Pleadings; Affirmative Defenses; Alternative or Inconsistencies Pleadings

FRCP 09: Pleading Special Matters (incl. Fraud/Mistake)

FRCP 10: Form of Pleadings

FRCP 11: Signing Pleadings; Representations to the Courts + Sanctions

FRCP 23.1: Shareholder of Corp. Derivative Action

Pleading includes: Jurisdiction Statement; short & plain statement of the claim showing relief.

1. Purposes: notice to , assert aggrievance, show case exists.

2. (8)(a)(1): jurisdiction; (2): short/plain claim; (3) demand for relief

Should include some facts, not just legal conclusions (Gillispie v. Goodyear, N.C. 1963, CB119 – lady claim “trespass”, etc. Note: N.C. was code pleading; probably wouldn’t stand up in FRCP either)

1. Look at Form 11 (Example of approved pleading)

Lack of detail not enough to dismiss the case, but needs some facts. has to be notified, but π doesn’t have to reveal his cards. (US v. Board of Harbor Commissioners, D.Delaware 1977, CB128 – spilling oil b/w June and November).

1. can file 12(e) for more definite statement if pleading unintelligible; rejected in Board of Harbor Commissioners – If FRCP 8 satisfied, 12(e) is improper.

Excessively long pleadings not ok. (Mendez v. Draham D.N.J. 2002, CB 130 – 1020 paragraphs, granted motion to strike – 12(f)).

π should do “reasonable inquiry” – not necessarily need to include everything (See below, Zuk/Rule11). [Tension b/w FRCP 8 & 11]

Employment discrimination, previous requirement to allege prima facie case of discrimination. BUT 8(a)(2) as usual, Conley applies, not have to plead PF case. (Swierkiewicz v. Sorema, U.S. 2002, CB174) [Reaffirms Conley; Pre-Twombly]

Can dismiss pleadings that are inconceivable/implausible. (Richards v. Duke University, D.C.D.C. 2007, CB194 – GULC crazy lady, w/ Bill Gates’ love child).

1950s: Relaxed pleadings. Dismissed only if “plaintiff can prove no set of facts” that would entitle him to relief. (Conley v. Gibson, U.S. 1957 CB126/192 – RR union giving unequal treatment, Civil rights case. Very π friendly.)

1. E.g., see Swierkiewicz (2002)

2007: Heightened pleading requirement. Enough facts to make complaint plausible, not merely possible/conceivable. No probability requirement, but some reasonable expectation that discovery would find necessary evidence. Retires Conley. (Bell Atlantic v. Twombly, U.S. 2007, CB 179, Souter. 7-2)

1. Stevens Dissent: Pleading was clear about what was alleged. FRCP to keep litigants IN, not out. The fact that discovery is expensive can be mitigated other ways. Let judge control discovery, e.g.

2. Confusion after Twombly about whether it applies only to anti-trust or all civil action…

2009: Heightened pleading requirement in Twombly was extended to all federal cases. (Ashcroft v. Iqbal, U.S. 2009, Supp, Kennedy. 5-4).

The Rule:

1. Fraud or Mistake: Must state with particularity the circumstances.

2. However, malice/intent/knowledge/other conditions of the mind can be alleged generally.

2^nd Circuit Rule: can’t expect π to plead ’s actual knowledge. But, π required to supply factual basis “strong inference” for their conclusory allegations. Reasons: 1) Fair notice to on the grounds. 2) Protect reputation from harm. 3) diminish possibility of π with a largely groundless claim can get a settlement. (Ross v. A.H. Robins, 2^nd Cir 1979, CB158)

1. π friendly

2. Codified into Congress’ Private Securities Litigation Reform Act (PSLRA, 1995)

3. Scienter: intention to deceive/manipulate/defraud.

Tellabs v. Makor Issues & Rights (U.S. 2007, CB159)

1. Question: Defining “strong inference” of scienter

2. Ginsburg, majority: not just reasonable inference from assumed-true facts. Inference must be cogent and as least as compelling as any opposing inference of non-fraudulent intent. (Judge can propose alternative inferences; not necessarily from parties)

3. Scalia, concur in judgment: should be “more compelling” not “as least as compelling.” [Stricter than Ginsburg.]

4. Alito, concur in judgment: at least as strict as Scalia

5. Stevens, dissent: Should be easier on π. Judge can apply “probable cause” std about equivalent to “strong inference.”

Can plead alternative/inconsistent facts, even if mutually exclusive, if π unable to determine truth. (McCormick v. Kopmann, Ill.App. 1959, CB133 – widow suing both bar and truck driver for husband’s death).

1. Cannot recover under BOTH mutually exclusive pleadings.

2. s in better position to know truth than π.

“I never borrowed the lawn mower, it was broken when I borrowed it, and I returned it in perfect condition.” – Law and Facts revealed in discovery.

1. Some limits, need some reason for pleading inconsistently. Otherwise, Rule 11?

In General: Governs sanctions for anything except Discovery (Rule 37). Can be monetary, expenses, and/or nonmonetary.

1937: Intended to prevent frivolous actions. “Good faith std.” Hard to give sanctions.

1983: Make it easier to give sanctions. “Reasonable under circumstances.”

1993: Make it harder to give sanctions. In responding to a Motion for Sanctions, Safe Harbor for 21 days, 11(c)(2).

1. No safe harbor in sua sponte sanctions

2. Purpose is to deter, not compensate.

Attorney who presents a motion, certifies that after a reasonable inquiry:

(1) no intention to harass, delay, or increase costs; (2) claims are warranted by law, or a good reason to extend, modify, or reverse established law, or establish new law; (3) facts have evidence; (4) denials have evidence...