Pleading 1 Flashcards
What is the first step in a litigation
filing and service of process
What must a complaint include
Jdx, why entitled to relief, and what relief demanded
What standard is complaint held to
plausibility (Twombly/Iqbal)
After a complaint, opposition can respond with …
Answer (affirmative defenses and counterclaims)
You get one amendment to a complaint/answer ….
as a right within 21 days, after that up to judicial discretion
Amendments should be granted when..
freely, when justice so requires
What is 12b6 motion
motion to dismiss for lack of claim on which relief can be granted
For a motion to dismiss, the movant has the ..
burden to show legal insufficiency or implausibility
Motion to dismiss standard for reviewing facts
assume facts stated in the complaint are true
Rule 7 is about
type of pleadings allowed
What types of pleadings allowed under rule 7
complaint, answer to complaint, answer to counterclaim, answer to crossclaim, third party complaint, answer to third party complaint, reply to answer if deemed necessary by the court
Rule 8 is about..
general rules of pleading
Rule about types of pleadings allowed
Rule 7
Rule about general rules for pleading
Rule 8
8(a)
complaint must contain short and plain statement of Jdx, short and plain statement of claim showing entitlement to relief, and demand for relief sought
8(d)
each allegation must be simple, concise and direct. A party may state claims in the alternative and as many claims/defenses it has regardless of consistency
Note on Rule 8
wording not changed but later interpretations make more rigorous pleading standard
Conley is about ..
notice pleading, no set of facts rule for 8
Conley rule
Complaint not dismissed for failure to state a claim unless beyond doubt P can prove no set of facts in support that would entitle them to relief
Conley holding
Adequately set forth claim on which relief could be granted,. If Union not protect jobs like they did white workers was breach of duty
Conley reason 1
FRCP doesn’t require detail in the facts
Conley reason 2
Just need to allege cognizable harm, not allege smt impossible and pleading itself doesn’t defeat the claim
Conley reason 3
Discovery makes simple pleading possible, not meant to be counsel game of skill
Conley was ___ by Twombly/Iqbal
overturned
Leatherman rule
Heightened specificity under Rule 9(b) does not apply to municipalites under 1983 even if expensive litigation
Swierkiewicz about..
don’t need facts for every prima facie element
Swierkiewicz rule
elements evidentiary standard not pleading standard. By insisting plead specific facts, imposing heightened standard beyond what was necessary to establish the claim
Swierkiewicz reason
Rule 8(a)(2) doesn’t contemplate merits at pleading, what SJ and Discovery are for
Matsushita holding
P allegations of conspiracy may not at SJ stage rest solely on inferences that may be drawn from parallel conduct of Ds. Must present evidence excluding possibility that alleged conspirators acted independently.
Twombly is about..
stricter “plausibility” pleading
Twombly rule
Factual allegations in a complaint must be enough to raise right to belief above speculative level to avoid 12(b)(6) dismssal. Overrule Conley “no set of facts”
Twombly holding
Complaint alleging parallel action not enough to show a conspiracy
Twombly reason 1
require facts to add up to plausible claim and conclusory statements don’t count as facts. Reasonable discovery will reveal evidence of illegal agreement
Twombly reason 2
Need evidence pointing to meeting of the minds
Twombly reason 3
Even if all allegations true, lead only to a suspicion
Twombly reason 4
only sufficient pleading can open discovery, prevent fishing
Twombly reason 5
Footnote 14, different from Swierkiewicz not heightened standard
Twombly dissent
FRCP meant to get people in Cts. Proof not function of pleadings. Not implausible to infer agreement and costs mitigated by case management
For Twombly, plausibility is ..
not probability but more than possibility, beyond conceivability
Rule 11c
If rule 11b violated, ct may sanction on any attorney/party responsible
Rule 2
procedure in fed courts same for law and equity
Rule 12b1
dismiss for lack of subject matter jdx
12b2
dismiss for lack of personal jdx
12b3
dismiss for improper venue
12b4
dismiss for insufficient process
12b5
dismiss for insufficient service of process
12b6
dismiss for failure to state a claim upon which relief can be granted
12b7
failure to join a party under R19
Rule 9b
In alleging fraud or mistake, party must state with particularity circumstances constituting F/M. Malice, intent, knowledge and other conditions of a person’s ,ind may be alleged generall
Iqbal is about
pleadings must have sufficient facts, not just legal conclusions
Iqbal rule
To survive a motion to dismiss, complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
Iqbal reason 1
disparate impact is legal, intent to adopt policies for purpose of discrim is not but Iqbal doesn’t show this
Iqbal reason 2
Ct does not have to accept legal conclusions as truth
Iqbal reason 3
Phased view of litigation, not partial discovery
Iqbal reason 4
Rule 9b not meant to loosen pleading standard for alleging discrim intent generally, just relative comparison to heightened standard for fraud/mistake
Iqbal dissent
Facts mischaracterized as legal conclusions.
Significance of Iqbal
Twombly applies to all (not just anti-trust) and especially hard to prove D subjective
What is a Bivens case
sue federal officer with federal authority violating Constitution
The dismissal rate has ____
not changed since Iqbal
DuRocher holding
P set forth basic identifying info, expect discovery to expand party knowledge about model/type worn. If not SJ
