#11532 - The Pleadings - Civil Procedure

THE PLEADINGS

Commencing a Civil Action and Responding to it

Pleadings, unlike motions that ask for a specific thing, don’t ask a judge to do anything in particular. Pleadings just kick off a process. Pleadings include complaint, answer, cross-claim and counterclaim.

1. The Complaint—Tightening Standards for Pleading a Federal Question: Twiqbal

Rule 8: Complaint requires a short and plain statement of the grounds for the court’s jurisdiction, a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for the relief sought. Failure to state a claim is grounds for 12(b)(6) dismissal.

E&E says: Complaint need not prove any facts or allege them in detail, just needs to allege the elements of a proper claim.

Conley v Gibson (standard raised substantially in subsequent cases)

FRCP does not require detailed claim, all they require is a short and plain statement of claim. Sets very low threshold for pleadings. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Notice pleading—idea is that you just give the defendant enough facts that he knows what the claim is and the basic facts on which it rests, and he’ll learn more through discovery. The purpose of pleadings is just to facilitate a proper decision on the merits.

Bell Atlantic v Twombly: Raises the standard from plausibility to probability.

Twombly alleges that the baby bells’ parallel conduct in staying out of each other’s territory violates the Sherman Act. But it is not illegal to act noncompetitively, its just illegal to collude. So court would have to figure out whether this is illegal collusion. Antitrust discovery is lengthy and costly. The facts must “nudge the claims across the line from conceivable to plausible.” Court also distinguishes between legal conclusions and allegations about facts. A few stray statements that speak directly of an agreement are merely legal conclusions. Well-pleaded complaint must state facts that make claim plausible.

Ashcroft v Iqbal—further tightens standard

Question here was whether the plaintiff plead a factual matter that, if taken as true, states a claim that defendants deprived him of his constitutional rights.

Plausibility is not probability. But it is more than possibility.

Conclusory allegations are not entitled to be assumed true, and do not constitute sufficient facts to cross the Twombly line from conceivable to plausible.

Plaintiff sufficiently alleged that he was designated a suspect b/c of his race, but not that Ashcroft intentionally discriminated because of his race.

Twombly is not limited to antitrust., but is it limited to cases with expensive discovery?

Souter dissent: Facts are there, majority just chooses not do address them. Facts must be taken as true, with the sole exception for allegations that are “sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto.”

Policy Concerns:

If we make it harder for private citizens to bring these claims, who will do the policing?

Efficiency concerns. Stevens dissent in Twombly wants defendants to at least have to answer complaints, thinks Sherman Act included a private remedy for a reason, and this holding thwarts efforts at private enforcement.

2. Responding to the Complaint

Rule 8: A response must include

• Admit or Deny

  • If denying in part, must specify which part. Can also deny generally

  • If a responsive pleading is required and defendant fails to answer, that is akin to an admission

• Must state its defenses to each claim asserted, including

  • Assumption of risk, fraud, failure of consideration, res judicata, statute of limitations, et al, and as in Burnham, statutory med mal caps

Rule 12:

1. Must respond within 21 days of receiving summons and complaint, or within 60 days of waiving service

2. The following defenses can be made by motion: lack of subject-matter or personal jurisdiction; improper venue; insufficient process; insufficient service of process; failure to state a claim upon which relief can be granted; and failure to join a party

3. The following defenses are waived if not included in the pleading or motion

Fuentes v Tucker

Tucker admitted liability in his answer. Fuentes argued evidence that he was intoxicated to the jury, Tucker wants that evidence excluded. Court says you cannot introduce evidence that is material only to a moot point. If someone admits liability, the liability ceases to be an issue of fact, so it doesn’t need to be tried. Court makes exception here because there’s no evidence that the evidence unjustly influenced the jury, so doesn’t want to go back and try the case all over. Rule 61 Harmless error does not result in a new trial.

Zielinski v Philadelphia Piers

Plaintiff injured in a forklift accident, sued the wrong company b/c didn’t know that his former employer had sold the company.

A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted—defendant failed to specify which parts of the complaint he was denying. Should have denied the part that alleged he owned the forklift. Instead of replying with general denial, reasonable person should have denied specific allegations and corrected plaintiff’s error.

Now since the statute of limitations has passed, plaintiff can’t sue anyone, but he would have been able to had defendant answered properly.

Court will not let the burden of defendant’s error fall on the plaintiff. Ruling for plaintiff largely falls on justice/injustice grounds. Chase questions it b/c poor complaint is partly the plaintiff’s lawyer’s fault. Philadelphia Piers also sent a letter to insurance company that implied they knew Zielinski was suing the wrong company.

Ingraham v US: key take-away is that you must plead all defense up front in order to avoid surprise to other party

Med mal case against US on behalf of Air Force docs. US did not plead statutory limit of ex delicto damages of $500,000 as defense, tried to invoke it after $1 million damages award. Court doesn’t allow. Seems to be a good faith omission, since there was some confusion as to whether the Texas statute applied to the federal govt.

A statutory limit on damages is an affirmative defense, which must be pleaded timely and is assumed to be waived if not pleaded.

Maybe court allows it b/c they think Ingraham might have argued for more direct economic damages if he knew damages were limited.

Compulsory Counterclaims
If you don’t raise them in the timely answer, you waive right to raise them in the future.

Rule 13: Counterclaim is compulsory if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require adding another party.

§1367: A compulsory counterclaim is still OK under supplemental jurisdiction, even if it lacks diversity or amount in controversy requirements for subject matter jurisdiction. District courts have supplemental jurisdiction over all other claims that are so related to claims in the action within original jurisdiction that they form part of the same case or controversy

Permissive Counterclaims any claim that is not compulsory; can raise any claim against the other party.

Cross-Claims by one D Against Another (Rule 13(g))

• A pleading may state as a cross-claim any claim by one party against a co-party if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The cross-claim may include a claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

3. Amending the Pleadings

Rule 15: Any pleading can be amended within 21 days, or otherwise with permission of the court. Any response to an amendment must be within 14 days or within the original 21 days

An amendment relates back when it asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.

Amendment changing party name relates back when the party to be added knew or should have known that it would’ve been in the original complaint but for a mistake by the plaintiff as to the proper party’s identity

Barcume v City of Flint

Original complaint by female police officers for employment discrimination did not include any sexual harassment allegations. She then later wanted to amend it to include harassment. Where a plaintiff had “ample opportunity” to include a claim in its original pleading, and give defendant notice, but fails to, cannot include the claim in an amended complaint.

The city, in defending against employ. discrimination, was not looking for any harassment defense. Would now have to go back and do expensive discovery all over again. Court does not allow the amendment.

Rule 15(c) on relating back. Statute of limitations does not apply if the claim in the amended pleading arises out of conduct include in the original...