Pleading & Reponse Terms

Question 1

Complaint

Answer 1

Written statement that contains the claim for cause of action, allegations = facts or assertions, evidence provided later. Required statements (Rule 8a):

• jurisdiction, claims, relief sought (“prayer” or “ad damnum clause”)

Question 2

Pleadings

Answer 2

Documents that start the legal claims and defenses at the parties want to consent in a lawsuit
- Federal Rule 8 governs pleading
- furnish a basis for ID Ing and separating legal and factual contentions to discern legal issue
- establishes what parties want to prove it trial
- Biggest enemy = motion to dismiss (motions contain arguments, not allegations—unlike pleadings)
- pleading burdens: party that must prove must plead (and vice versa); Rule 8c: affirmative defenses; rationale: access to information

Question 3

Allegations

Answer 3

Statement purporting a fact

Question 4

Arguments

Answer 4

Need premises and an operation of reasoning to draw a conclusion

Question 5

Proof

Answer 5

A thing (photos, videos, docs you can submit to the court on one side) to demonstrate that an allegation is true

Question 6

Demurrer

Answer 6

Challenges, the legal sufficiency of P’s claim saying there’s no valid defenses

Question 7

Dilatory & Preemptory Plea

Answer 7

D: challenges the court to hear it, including jurisdiction
P: Plea in bar, on the merits

Question 8

Code Pleading

Answer 8

Citing the Code of Civil Procedure, Field Code, a prototype for codes in other states and a precursor of federal rules requiring operative facts specific facts of life that are not generic

Court provided conclusions of law, generic statements after a legal rule was applied which requires 1) certain facts; and 2) application legal rule -> conclusion of a logical argument

Question 9

Pros/Cons of Code Pleading

Answer 9

P: make sure you’re not wasting time and to give opponents a roadmap

C: difficult for those less educated to create a sufficient complaint

Question 10

Burdens of Pleading

Answer 10

Satisfying the standard sufficient to survive a motion to dismiss for defective pleadings

Question 11

Pleading Sufficiency

Answer 11

Assess allegations what to put in your complaint

Question 12

Notice Pleading

Answer 12

The new system that a complaint only requires a short statement ruled by the Federal Rules of Civil Procedure (1934)

Question 13

Federal Rules of Civil Procedure

Answer 13

Required lenient, minimum, pleading requirements. It got rid of the common law, pleading system and shifted the burden to the opposing party in the courts for next steps.

Theory: a complaint should be sufficient if it gives minimal notice to the party and the court

Question 14

Pros/Cons of Notice Pleading

Answer 14

P: more civil P can access civil justice and cost is a higher burden on D’s. courts to sit on a lot of bogus actions longer. Increases the burden on the opposing party to file the motion to dismiss and because nothing will happen unless there’s a motion. Also motivates complaints to be airtight meeting the pleading standards.

C: invites bots to file lawsuits, could max out justice for meritorious claims, fewer bogus claims will be screened immediately and screened to the later stages instead.

Question 15

Analyzing Probability

Answer 15

1. Evaluate P’s argument in a vacuum on the quality argument and a P-favoring story to tie together factual elements.
   - Twombly: not a probability requirement—need to nudge beyond me or possibility to become plausible, even if D’s story is better
   - Iqbal: if equally persuasive P should win the most likely explanation. Principle of Transsubtantivity = same standard should be applied to your case, regardless of type
2. Compare/compete approach with a P-favoring story and D-favoring story and assess their weights. Tailor facts to accommodate for which plausibility standard you’re in considering context experience common sense

Question 16

Post Twombly/Iqbal Standard

Answer 16

• increases minimum requirements for pleading claims
• Allegations to relief must be plausible
• Require some facts
• presumption of truth only for allegations with some factual support
• Increase in dismissal rates by 4%

Question 17

Presumption of Truth Scale

Answer 17

Facts <————————> Conclusory
Presumption of truth / no presumption of truth

• need to reason by analogy why case should get presumption of truth

Question 18

Conley v. Common Law Code Pleading Scale

Answer 18

Conley <—————————> Common Law Code Pleading

Possibility —— Plausibility —— Super strict

Post-Twombly = dismissed / Post-Twombly = OK

Question 19

Rule 9

Answer 19

Heightened pleading standards for certain kinds of issues

Question 20

Private Securities Litigation Reform Act 1995

Answer 20

Impose a super heightened pleading standard on complaints requiring every statement alleged have been misleading and reasons why the statement was misleading must show a strong inference of scienter that he acted with the required state of mind stated with a particularity (ex: malice, recklessness)

Question 21

Rule 12 (e) & (f) Motions

Answer 21

Rule 12(e) - motion for a more definite statement
- time limit
- disfavored under Conley
- under Twombly

Rule 12(f) - can move to strike for a pleading that’s redundant/scandalous/immaterial/impertinent
- legally insufficient claims or defenses
- time limit rule 12(f)(2)
- disfavored
- pleader should be the master of pleadings (with almost all autonomy to decide what goes in complaint)

Question 22

Rule 12(b)

Answer 22

Defenses against VALIDITY of the complaint
1. Lack of subject matter jurisdiction (cannot be waived)
2. Lack of personal jurisdiction.
3. Improper venue.
4. Insufficient process.
5. Insufficient service of process.
6. Failure to state a claim (waived, if allowing would cause “unfair surprise”)
- basis: factual insufficiency OR legal insufficient of claims (more common)

Question 23

Rule 12(c & d)

Answer 23

12c: Motion for judgment on the pleadings
12d: Motion for conversion to summary judgment

Question 24

Rule 12(g)

Answer 24

Motion for joining motions
- have to be filed within 21 days of being served
- rule 12 B allows more time for consideration of parties
- most all D’s request an extension

Question 25

Pleadings v. Motions

Answer 25

P: statements of claim
M: arguments (asking the court to do something for you)

Question 26

Rule 8(b)3 and 9(a)2

Answer 26

8(b)3: allows a general denial of the complaint—disfavored because the court may decide the general denial does not fairly respond to the substance of the allegation
- When something is publicly true but you deny it it will be deemed admitted (X is the CEO of this company). Do not want something deemed admitted because D cannot have it removed.
- Conjunctive denial = all propositions to consider together are not true, but does not specifically deny the truth of each proposition alone

9(a)2: specific denials of obligations
- Address each allegation to admit or deny
- Including specific denial, nested within general denial is problematic because the legal rule that specifically govern general (ex: list of affirmative defense to govern general rule) is not true

Question 27

Affirmative Defense v. Avoidance; what to consider

Answer 27

Affirmative Defense = admits the allegations of complaint but challenges P’s legal right to bring action by suggesting legal assertion why relief isn’t available (8c1 lists: duress, fraud, negligence)

Avoidance = brings up extraneous allegations outside of complaint while P can recover under the ordinary operation of governing law, there is a reason ordinary operation should not function in this case.

If defense is not raised as avoidance or affirmative defense, its waived. Need to consider:
- if matter is necessary or extrinsic to P’s cause of action (outside of claim)
- Which has better access to relevant evidence—P should NOT be surprised
- policy considerations

Question 28

Rule 15a

Answer 28

Amendments before trial

1. Amending as a Matter of Course
   - A: 21 days after serving it
   - B: if responsible pleating is required 21 days after service
2. Other amendments. Only with the opposing parties written consent or the courts sleeve court should freely give leave when justice so requires.
   - Can amend it anytime if other party agrees
   - Time to respond within time remaining to respond to original pleading or within 14 days
   - Denied only if there’s bad faith, prejudice, or delay

Question 29

Rule 15b

Answer 29

Amendments during and after trial

• 15(b)1: based on an objection at trial. if at trial party objects evidence not raised in the pleadings, the court may permit the pleadings to be amended
• 15(b)2: for issues tried by consent must be expressed or implied consent, not already tried completing to raise
  
  • can raise an unleaded issue at any time even after judgment

Question 30

Rule 15c

Answer 30

Relation Back of Amendments

(1) When an Amendment Relates Back. An amendment to pleading relates back to date of OG pleading when:

A. applicable statutes of limitations allows relation back;
B. Amendment asserts claim or defense that arose out of the conduct, transaction or occurrence set out or attempted to be set out in the original pleading or
C. Seeks to change the party name. If 15(c)(1)(b) satisfied, party brought in from amendment:
1) received notice of action
2) knew or should have known action would have been brought against it
- would know through relationships, public docs

Question 31

Rule 15(d)

Answer 31

Supplemental pleadings allowed based on facts not existing when the court complaint was filed can be used to:

1. Cure effects and original pleading.
2. Add new claims.
3. Provide additional facts that update the complaint (concerning transactions occurrences events that happen after filing of initial pleading)
   - Adding another “count” (knowable but not known)

Question 32

Federal Rules of Civil Procedure

Answer 32

Lenient minimum pleading requirements

Rule 7 - General Pleading Rules
- 7(a) - Types of pleadings allowed (complaint, answers to compliant, counterclaims, and cross claims, third-party pleadings)

• 7(b) - Motions (requests for court order)

Question 33

Motion to Dismiss

Answer 33

Challenges the court’s jurisdiction over the subject matter or person, service of process or venue. 3 situations where a motion could be granted:

1. Complaint shows the injury is one where the law has no redress.
2. P may have failed to include allegation necessary to part of the case.
3. Complaint may be so general and confusing the court finds it doesn’t give adequate notice of what P’s claim is.

Question 34

Pleading rules

Answer 34

7.1 - Disclosure statements
9 - Heightened pleading for certain claims
10 - Form of pleadings
11 - Verify pleadings
12 - Motions relating to pleadings
15 - Amending and supplemental pleadings
(Former) Rule 84 - Form pleadings