SUmmary Judgement vs 12b6 Flashcards
56
Summary Judgement
12b6
motion to dismiss for failure to state a claim
In 12b6, can court look at evidence
No, looks at face of complaint not evidence
Conley standard Notice Pleading
TWIQBAL three rules
(1) Ignores conclusions of law and looks at allegations of fact
(2) the facts alleged must support a plausible claim, NOT just possible claim
(3) To determine Plausibility…Judge uses own experience and common sense
Assumes that all “facts” are true and be PLAUSIBLE
Does this case belong in litigation stream at all?
In summary judgement can the court look at evidence
Yes, Trial is used to resolve dispute of facts
The Court CANNOT JUDGE CREDIBILITY OF EVIDENCE
*Video can show no dispute of facts… maybe allow it
If before we go to trial and parties show no dispute of facts don’t need trial
When 12b6 granted what will happen?
(1) It will give P second chance
(2) leave to amend or w/o prejudice
(3) If can not state plausible claim maybe be prejudice
Party moving for summary judgment must show two things
(1) No genuine dispute on a material fact
(2) He is entitled to judgment as a matter of law
56 how does court get evidence
Materials executed under oath
affidavits, declarations, depositions, interrogatories
Admissions- Court can take that into account
P needs to put up something more than their complaint,
pleadings are not evidence!!
Conley Standard vs TWIQBAL
Conley- Will not grant a 12b6 “unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief.
Twiqbal- to survive a 12b6, raise a reasonable expectation that discovery will reveal evidence (plausible and it is determined by the judges experince)
8(d)(3)
Allows inconsistent pleadings but check to see if both claims are possible…always doesn’t have to be either/or when looking at two Ds
When inconsistent look at different versions of the facts, even if all claims cant be true if other one is true
8(b)(5)
Don’t have enough info to admit or deny it is a “is without knowledge or information sufficient to form a belief as to the truth of the averment” it acts as denial though…. but still need to do Rule 11 “reasonable investigation”
When motion to dismiss with 12(b)(6) important to consider
(1) complaints are construed in light most favorable to the P
(2) only time complaint will be dismissed is where P has stated facts indicating the d cannot be liable as a matter of law
(3) consider all the facts are true
decide cases on the merits not by a technicality
imagine that a defendant who was served with a complaint files a 12(b)(6) motion to dismiss for failure to state a claim and does not file an answer. Eleven months later, the defendant’s 12(b)(6) motion is denied. Must the defendant file an answer?
Yes, within 14 days of being notified of the denial of the 12(b)(6) motion
