Pretrial Procedures Flashcards
Pleadings
Pleadings are the documents that set forth the claims and defenses to a case.
Purpose of Pleadings
Pleadings are the documents that set forth the claims and defenses to a case
Federal Courts use Notice Pleading
Fed Court use Notice Pleading=the goal of which is to provide the opposing party with reasonable notice of the nature and scope of the claims being asserted.
Pleading requirements
(Rule 11)
Pleading requires all attorneys or a party in pro se to sign all:
1) Pleadings,
2) written Motions, and
3) Papers, filed with or presented to the court,
certifying that;
1) the Paper is Proper,
2) the Legal contentions are warranted by Law, and
3) the Factual contentions have Evidentially support.
Pleading requirements allegations and arguments must
1) based on Reasonable investigation
2) be supported by the law
3) be non-frivolous and not meant to harass, and
4) have evidentiary support (or likely to have after discovery)
Sanctions for violation for improper pleading
Sanctions may be imposed for violations of this rule, but are subject to a
Safe Harbor Rule
Sanctions may be imposed for violations of this rule, but they are subject to a 21 day safe or correct pleadings giving rise to the sanctions motion.
Sanctions–Rule 11 motion
Serve to deter repetition of conduct–not meant to be punitive
Rule 11 Sanctions do not apply to?
Rule 11 Sanctions does not apply to discovery
What may the court award under Rule 11 motion?
Court may award reasonable expenses, including attorneys’ fees incurred for Rule 11
The Complaint (Rule 8)
Well-pleaded Complaint Rule (Rule 8) Must contain:
1) a short and plain statement of the grounds for the [FEDERAL] court’s jdx
2) A SHORT AND PLAIN STATEMENT OF THE CLAIM showing that the pleader is entitled to relief
3) A DEMAND FOR RELIEF sought.
The Complaint (Rule 8) Analysis
Iqbal two prong “plausibility” test
1) FACTUAL ALLEGATIONS
2) FACIAL PLAUSIBILITY
Iqbal prong 1
“plausibility” test
1) FACTUAL ALLEGATIONS
A) STRIKE all conclusory allegations and identify the well-pleaded, factual allegations.
Iqbal prong 2
Iqbal two prong “plausibility” test
1) FACTUAL ALLEGATIONS
2) FACIAL PLAUSIBILITY
a) Assume truth of factual allegations and determine if they plausibly suggest that plaintiff is entitled to relief.
b) Must include numbered paragraphs that address each element of the claim liked to facts pertaining to that element.
Rule 12(b)(6) Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted, the pleading in a complaint must allege enough facts to give the defendant notice of the cause of action and the facts on which the claim is based. Under Twombly and Iqbal, a federal court must apply a two-part test to determine whether a complaint is sufficiently well-pleaded. First, the court strikes all conclusory legal allegations. Second, taking all remaining factual allegations as true, the court determines whether the facts as alleged would make it plausible for the plaintiff to succeed in obtaining the relief that is sought.
