civ. law Flashcards
Pleadings: Complaint
Pleadings: Answer
Pleadings: Counterclaim
The counterclaim must state that it is a counterclaim
3 defenses
asserting defenses
Plead affirmative defenses
2 types of denials
general: 8-b-3; intend to deny all allegations
specific: 8-b-4; must be used unless you generally deny
Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007).
The consumer class’s Complaint alleging that the telephone service providers illegally conspired to
restrain trade did not state enough factual matter to establish an unlawful agreement; complaint
must be dismissed.
“Must provide more than labels and conclusions;
a formulaic recitation of a cause of action’s
elements will not do. Factual allegations must be
enough to raise a right to relief above the
speculative level.”
A complaint cannot survive a motion to dismiss unless it contains “enough facts to state a claim to
relief that is plausible on its face.”
*A claim that is merely “conceivable” is insufficient.
*Rule 8 does not require that “a claimant set out in detail the facts upon which he bases his claim,” but
nevertheless requires some specificity: “[it] still requires a showing , rather than a blanket assertion, of
entitlement to relief.”
*A formulaic recitation of the elements of a cause of action will not do.”
* A legal conclusion couched as a factual obligation ” is not entitled to a presumption of truth against a
motion to dismiss.
Ashcroft v. Iqbal
Two prong approach:
1. Identify the allegations in the complaint
that are not entitled to an assumption of
truth.
2. Consider the factual allegations to
determine if they plausibly suggest an
entitlement to relief.
Twiqbal
“The Twombly/Iqbal compulsion*”
“Symptoms of the Twombly/Iqbal compulsion include ‘view[ing ] every factual allegation as a mere legal conclusion and disparagingly label[ ing ] all attempts to set out the elements of a cause of action as ‘bare recitals.’ ”
CONCLUSORY ALLEGATIONS ARE INSUFFICIENT
“An allegation is conclusory where it states an inference without stating underlying facts or is devoid of any factual enhancement.” Brooks v. Mentor Worldwide LLC , 985 F.3d 1272, 1281 (10th Cir.
Similarly, “[a] complaint that merely cites to the statute without pleading factual allegations fails to
state a claim.” Cortés Ramos v. Martin Morales , 956 F.3d 36, 44 (1st Cir.
Discovery
Zublake v. UBS
Preservation obligation/duty to preserve
Rule 26
Is litigation reasonably anticipated?
Was a litigation hold put in place?
requires diligent preservation of relevant evidence
can be enforced with sanctions or adverse instruction
Spoliation: when someone destroys evidence; party must have duty to preserve the evidence in the first place
Burden of proof for spoliation is on the movant who claims the opposing side destroyed evidence
continues to remind and follow up on litigation hold to key players
Structure of Discovery
General characteristics
initiated by parties; judge intervened only in case of dispute, w/ broad discretion
generally confined to information that is a) relevant to claim of defense and b) not privilege and c) proportional to the case
Stages of discovery:
mandatory disclosure
each party can then request further discovery
Discovery scope:
parties may obtain discovery regarding
1. any nonprivileged matter;
2. relevant to any party’s claim of defense
3. proportional to the needs of the case
it may or may not be admissible in trial; discovery has a broader scope than what is admissible
As a general rule, discovery is not filed with the court.
Rule 5(d) says disclosures under rule 26 and other discovery (depositions, Roggs, and NPDs or tangible things or to permit entry to land, or admissions) must not be filed until they are used in the proceeding or the court orders filing
Normally e-filed and if so there doesn’t need to be a certificate of service
Scheduling order
must limit the time to join other parties, amend the pleadings, complete discovery, and file motions” and “may” set other dates. Scheduling orders are supposed to drive the parties along the path to settlement or trial.
Claw back agreement
Protective order
26 (c)
privileges
doctor-patient
spousal
attorney-client
26-b-1: exception to discovery is information that is privileged
protects information from certain sources
Can an order be modified and on what grounds?
Yes: 16-b-4 - a schedule may be modified only for good cause and with the judge’s consent
