Pleadings

Question 1

What rule defines the sufficiency of a complaint?

Answer 1

8(a)(2)
A short and plain statement of the claim showing that the pleader is entitled to relief

1. Short and plain statement
2. Showing that the pleader is entitled to relief (Twiqbal)

Question 2

“Two Prong Test” to determine the sufficiency of a complaint:

Answer 2

1. “Conclusory” allegations that are not “well-pleaded” must be disregarded and need not be accepted as true.
2. The remaining “factual allegations” are to be assessed to determine whether they plausibly state a claim for relief.

My translation:
1. Cross out all conclusion statements
2. See if what’s left has enough factual matter to state a claim to relief is plausible on its face.

Question 3

Assumption of Truth Doctrine

Answer 3

All facts plead must be taken as true and draw all inferences from the facts in favor of the non moving party.
Except little green men.
Dissent in iqbal suggests that we need to look at the sentences we are crossing out and see if they are actual conclusions or if they are logical inferences that we can make based on the other allegations.

Question 4

Bell Atlantic Corp. v. Twombly

Answer 4

Facts: π argue that ILECs engaged in parallel conduct and thus are in violation of Sherman act § 1. 12b6 MTD.
Court: Claim not sufficient. Allegation of parallel conduct without suggesting further agreement “stays in neutral territory” i.e., could have just been competitive behavior.
• Need “more than labels and conclusions” and “a formulaic recitation of the elements of a cause of action will not do.”
• Presence of an “obvious alternative explanation” can undermine plausibility
• Reflects threshold requirement (2nd half) of 8a2 that the plain statement posses enough heft to show that the pleader is entitled to relief.

Question 5

Ashcroft v. Iqbal

Answer 5

Facts: After 9/11 Iqbal identified as high interest and detained. Alleges that under Ashcroft & Muller designated him a person of high interest based on his race, religion, or national origin and that they knew of, condoned, and willfully and maliciously agreed to subject him to harsh conditions as a matter of race, religion, etc. MTD 12b6.
Court: Reasoned due to al Qaeda’s nature, there is an obvious alternative explanation that the high volume of Arab/Muslims could be motivated by something other than discrimination.
• Pleading does not require detained factual allegations but “demands more than unadorned-the-defendant-unlawfully-harmed-me accusation,” and “more than a formulaic recitation of the elements.”
• A claim has facial plausibility when π pleads factual content that allows the court to draw reasonable inference that ∆ is responsible for alleged misconduct.
• More than a sheer possibility that ∆ has acted unlawfully.
R9 does not allow mental states to be alleged in a way that is conclusory.

Question 6

Alternate & Inconsistent Pleadings

Answer 6

8(d)(2-3)
(2) Party can make alternative claims or defenses. (could both happen)
(3) Party may state inconsistent claims or defenses. (can’t both happen)

Question 7

Prayer for Relief

Answer 7

8(a)(3)
How much detail is required?
• A simple request “for damages” would satisfy. Must only specify type of damages. Can’t just say “give me whatever you think I deserve.”
• If P does choose to allege a specific dollar amount of damages in complaint, a jury may choose to exceed that amount if such a finding is supported.
Might be a good idea to include a dollar amount since R54c tells us we are not capping yourself.

Question 8

Heightened Pleading

Answer 8

9(b)(1)
(1) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.

Nathan’s 9b(1) checklist (lean heavy on this if given a complaint with fraud/mistake on exam)
To satisfy Rule 9(b), a plaintiff asserting a claim under the Act must, at a minimum, describe the
1. time,
2. place, and
3. contents of the false representations, as well as
4. the identity of the person making the misrepresentation and
5. what he obtained thereby.

Congress can also raise the pleading standard in certain statutes creating causes of action (this is all I need to know about that)

Question 9

States of mind in a complaint

Answer 9

9(b)(2)
(2) Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
9b(2) tells us that any mental state may be alleged generally as long as it is not conclusory (those get crossed out under 8a2 two prong test).

Question 10

All parts of Rule 12.

Answer 10

a: Time to serve responsive pleading
b: Defenses and objections
c: Judgment on the pleadings
d: Stay within the pleadings
e: More definite statement
f: Motion to strike
g: consolidation
h: waiver

Question 11

Time to serve responsive pleading

Answer 11

12(a)
• ∆ must file answer within 21 days of complaint if ∆ doesn’t waive service.
• If ∆ waives service, they must respond within 60 days (incentive)
○ Or 90 days if outside of US
• If there is a motion, time is paused until the motion is decided on, THEN you have 14 days to respond.

Question 12

12(b) defenses & objections

Answer 12

Can be raised as pre answer motions.
A motion asserting any of these defenses must be made before pleading if responsive pleading is allowed.
Saves time, money to things we need to know up front. Plus, maybe the case shouldn’t even continue.

(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.

Question 13

12(c) judgment on the pleadings

Answer 13

AFTER pleadings are closed (12b6 is before).
Judge looks at all the pleadings, including the answer, and makes a judgment. There must be no material factual dispute (all that there is left to do is apply the law).

Question 14

12(d) Stay within the pleadings

Answer 14

If additional documents/evidence (matters outside the pleadings) is added during a 12b6 or a 12c it turns into summary judgment under R56. Gives other side a fair shake.

Question 15

12(e) More definite statement

Answer 15

Very low standard for complaints under this rule. Will almost never use unless the complaint is “so vague or ambiguous” that the ∆ cannot reasonably prepare a response.

Question 16

12(f) Motion to strike

Answer 16

• If pleading needlessly includes info that is clearly false, non-germane, or defamatory.
• Proper when defense if insufficient as a matter of law (the mirror of 12b6 for a plaintiff).
• Would be rare just because if it is redundant/immaterial who cares? Only if it really hurts clients reputation would you maybe use it.

Question 17

12(g) Consolidation**

Answer 17

If you want to file some 12b motions, you need to file everything that was available to you (generally b2-5) at the same time.

Question 18

12(h) Waiver*

Answer 18

• 12b(2-5) MUST be raised the first time the defense opens its mouth (first defensive pleading requirement) or they are waived forever.
Personal jur., improper venue, insufficient process, insufficient service
○ You SHOULD know these right when you get the complaint, that’s why they are waivable.
• If you choose not to file a pre-answer motion and file an answer, you must raise certain defenses in 12b if you want to preserve them. If you fail to do so, you waive defenses listed in R12b2-5, unless you can amend as a matter of course under R15.
• 12b1,6,&7 by contrast you can raise at any point throughout trial. (see h2)
• What bout b1 (SMJ)?
• 12b(2-5) MUST be raised the first time the defense opens its mouth (first defensive pleading requirement) or they are waived forever.
○ You SHOULD know these right when you get the complaint, that’s why they are waivable.
• If you choose not to file a pre-answer motion and file an answer, you must raise certain defenses in 12b if you want to preserve them. If you fail to do so, you waive defenses listed in R12b2-5, unless you can amend as a matter of course under R15.
• 12b1,6,&7 by contrast you can raise at any point throughout trial. (see h2)
• What bout b1 (SMJ)?
○ SMJ is a ticking time bomb. It can go off at any time in the case. If fed court doesn’t have SMJ it MUST dismiss the case whether the parties want it dismissed or not.
○ When trying to navigate 12g or 12h you have an easy answer if you see an SMJ issue because it can be issued at any time. SMJ is a ticking time bomb. It can go off at any time in the case. If fed court doesn’t have SMJ it MUST dismiss the case whether the parties want it dismissed or not.
When trying to navigate 12g or 12h you have an easy answer if you see an SMJ issue because it can be issued at any time.

Question 19

Two ways to challenge 12(b)(1) and 12(b)(2)

Answer 19

can challenge facially (with facts as alleged) or factually (with facts as they actually are). Factual challenge allows for limited discovery.

Question 20

Components of an Answer

Answer 20

1. Defendant must admit or deny all factual allegations of the complaint (R8b)
   
   2. Defendant must include any defenses it wants to raise including both
      a. R12b defenses that have not been waived; and
      b. Any affirmative defenses such as those listed in R8c
   3. Defendant should also include any claims they have against the plaintiff or other parties that they wish to assert (counterclaims or crossclaims).

Question 21

How to respond to allegations in a complaint

Answer 21

8(b)
• Defendant must admit, deny, or assert that it “lacks knowledge or information” sufficient to form a belief about the truth of an allegation (effect of denial).
• Under 8(b) a defendant is required to admit anything that is true and worthy of admission.
• 8(b)(2) requires that a defendant fairly respond to the substance of the allegation (BE SPECIFIC WHEN ANSWERING).
○ Improper forms of denial (including failure to respond) may be may be treated as admission under R8b6 (Zielinski).
• ALL allegations require a response permitted by R8 (including legal conclusions).
• requires ∆ “in responding to a pleading… to state in short and plain terms its defense to each claim asserted against it.
○ If Applicable, P can respond by motioning to strike defenses via R12f

Question 22

Amending the Pleadings as a matter of course

Answer 22

15(a)(1-3)

(1) A party can amend it’s pleading without the court’s consent once withing:
• 21 days after service; or
• The earlier of
○ 21 days after service of a responsive pleading (answer); or
○ 21 days after service of a motion under 12b, e, or f.

(2) If not within this ^ timeframe, a party must get consent from opposing party or the court (ask opposing party first).
• But courts should “freely give leave when justice so requires”
○ As long as there is no unfair prejudice to the opposing party
○ Since this is such a low bar, normally you say “sure” when an opposing party asks.
• High bar to show unfair prejudice (see Beeck v Aquaslide)
○ Court said not unfair to Beeck since they could possibly have some other alternatives to recover (stretch).
SEE FORMAN LIST OF REASONS TO DENY.

(3) A party has 14 days to respond to the amended pleading (maybe more if there is more time remaining on the deadline to respond to the original pleading).

Question 23

Amending the pleading after SOL (relation back)

Answer 23

15(c)(1)
*If you don’t have a SOL problem, you don’t have a relation back problem

Question 24

Rule 11(a)

Answer 24

Any documents/paper that is filed with the federal court better be signed (also w/ address, email, and phone).

Question 25

Representations to the court

Answer 25

11(b)
Anything represented (paper or advocated) to the court must be, to the best of the persons knowledge and with a reasonable inquiry undertaken:
1. Have a proper motive for filing
2. Sound legal argument
a. Warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law.
3. Have a basis for factual allegations.
a. Need to back up facts or denials w/ evidence.
i. If you don’t have evidence, need to indicate a reasonable belief that discovery would lead to some.
4. Same as 3 but for denials

11(d) = this (rule 11) does not apply to discovery

Question 26

Rule 11 sanctions

Answer 26

11(c)

1. Law firms held jointly responsible
2. SAFE HARBOR. If I think someone violated R11, I have to write up a motion and serve it to that party and allow a period of 21 days for them to correct or withdraw it. Must be specific and separate from other motions.
	a. Only after safe harbor period, if they still didn't fix it, I can now file a motion with the court.
3. Courts can sanction on their own IF they issue a show cause allowing party to explain (or fix).
	a. Judges are not bound by safe harbor.
4. Sanctions limited to what suffices to defer the conduct or similar conduct.
	a. Can be monetary or non monetary
	b. Normally the lowest level that would meet the deterrence goal.
	c. Attorneys fees may only be awarded in response to a motion (not court initiated)
5. Court can't impose monetary sanctions against a party (the client)
6. Need to explain the basis of sanction so there is no ambiguity. ^Motion for sanctions must be separate from all other motions.;

Question 27

Notice pleading vs Fact Pleading

Answer 27

We used to be a fact pleading system until the adoption of FRCP 1938.
Fact pleading system required FACTS to back up the allegations contained in the complaint.
However, since there is sometimes an asymmetry of information where D has access to the proof, this system was wrongly disposing of meritorious claims because the P did not have access to the proof.
Notice pleading adopted by 1938 FRCP only requires that pleading give NOTICE to the other party of the suit and what it is about. Conley helps us interpret this.

Question 28

Conley v. Gibson

Answer 28

Famous case that governed how we interpret 8a2 for a long time. Said that a complaint shouldn’t be dismissed via 12b6 unless it is “beyond a doubt that the plaintiff can prove NO SET OF FACTS in support of his claim which would entitle him to relief.”

Question 29

Plausibility v. Probability

Answer 29

Plausibility requirement calls for enough fact to raise a reasonable expectation that discovery will reveal evidence.
Enough fact to allow the court to make a reasonable inference that the defendant is liable (Twombly).
This is more than a possibility (chance), but does not require probability (highly likely).
This altered the previously accepted notion that a complaint was sufficient unless “no set of facts” support the plaintiff’s entitlement to relief (Conley).

Question 30

Service of Process

Answer 30

Rule 4
4c
Summons must include the complaint and be by any person who is 18+ and not a party.

4d
Encourages plaintiff to use a waiver of service
Carrot = more time to respond
Stick = if you don’t waive you have to pay for the other sides fees they acquired trying to find you.

4e
Leave a copy at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.