I. PLEADINGS
A. The Complaint
o Complaint Generally: The complaint is the initial pleading in a lawsuit, and filed by the plaintiff.
o Commences Action: The filing of the complaint is deemed to “commence” the action. The date of filing of the complaint is what counts for statute of limitations purposes in federal question suits.
o Elements of complaint: There are three essential elements that a complaint must have (FRCP 8(a)):
§ Jurisdiction: A short and plain statement of the ground upon which the court’s jurisdiction depends;
§ Statement of the claim: A short and plain statement of the claim showing that the pleader is entitled to relief; and
§ Relief: A demand for judgment for the relief which the pleader seeks.
o Specificity: Plaintiff must make a “short and plain statement” of the claim showing that she is entitled to relief. The level of factual detail required is not high—gaps in the facts are usually remedied through discovery. Plaintiff needs to state only the facts, not the legal theory she is relying upon.
o Special Matters: Certain “special matters” must be pleaded with particularity if they are to be raised at trial.
o Catalog: The special matters (listed in FRCP 9) include: (1) denial of a party’s legal capacity to sue or be sued; (2) the circumstances giving rise to any allegation of fraud or mistake; (3) the denial of performance or occurrence of a condition precedent; (4) the existence of judgments or official documents on which the pleader plans to rely; (5) material facts of time and place; (6) special damages; and (7) certain aspects of admiralty and maritime jurisdiction.
o Effect of failure to plead: The pleader takes the full risk of failure to plead any special matter.
a. Elements, Form of Pleadings, Legal Sufficiency
· FRCP 3: the complaint commence a civil action
· FRCP 7(a): Pleadings = Complaint, Answer, Cross-claim, Answer to cross-claim, third-party complaint and answer
· FRCP 8(a): Complaint is required to have (3) things (Elements); “A pleading that states a claim for relief must contain:”
o (1) “a short and plain statement of the ground for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;” (Grounds for court’s jurisdiction
o Statement of the claim)
o (2) “a short and plain statement of the claim showing that the pleader is entitled to relief; and” [Demand for relief sought (may include relief in alternative or different types of relief)]
o (3) “a demand for the relief sought, which may include relief in the alternative or different types of relief.” (Resolved issues with “code” pleading, whose problem was the determination of what was fact and what was a conclusion of law.)
· FRCP 10: Applies to all pleadings, i.e. the documents listed in 7(a)
· FRCP 12:Can be used to challenge the legal efficiency of a complaint
o 12(b)(6): motion to dismiss for failure to state a claim
o General demurrer: same function as 12(b)(6) except used in States that use code pleading (NY, CA)
b. Factual Sufficiency, Heightened Specificity
o Legal Sufficiency: Court may dismiss a motion with or without prejudice; See example page 1 of notes; challenges to state a claim upon which relief can be granted.
o Factual Sufficiency: Challenges whether the claim has been set forth with the appropriate detail.
· FRCP 9
o 9(b): exception to 8(a)(2) Rule—by only mentioning fraud & mistake—8(a)(2) applies to everything else
Dioguardi v. Durning: “Judicial haste makes waste”; claim appears to have stated a possible claim, therefore needs a day in court; The fact that a litigant ultimately loses on the merits hardly shows that he should be thrown out of court without any opportunity to prove the merits of his case.
· Facts: Dioguardi sued Durning, the Collector of customs at the Port of NY for conversion and misappropriation of imported goods. Dioguardi, acting without counsel, drafted a complaint stating the facts of the dispute and generally asserting that Durning improperly sold his goods at public auction and improperly handled the good while they were in Durning’s possession. On the defendant’s motion, the court dismissed Dioguardi’s complaint for failure to state a cause of action.
· Rule: To meet federal pleading standards, the plaintiff must provide in the complaint a short and plaint statement of the claims, showing entitlement to relief.
· Rationale: Under FRCP 8(a), a complaint is sufficient if it presents “a short and plain statement of the claim showing that the pleader is entitle to relief.” When a complaint alleges enough to put the court and defendant on notice of the plaintiff’s claims, the plaintiff’s complaint is sufficient to state a cause of action.
Conley: Expanded on Dioguardi: “accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
· Function of Complaint: giving the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests; however the language in Conley was never taken literally (bolded above); Although the exceedingly forgiving attitude toward pleading deficiences was expressed in Conley continues to be quoted with approval, it has never been taken literally. That was how it used to be…
Bell Atlantic Corporation v. Twombly: “Baby Bells” monopoly; in order to state a claim against a monopoly must show that each company is conscious of parallel behavior, in order to prove allegations—need to show behavior and a “plus factor”; (a plus factor is an agreement among companies). Supreme Court: the cause of action is a two-prong test, but complaint shows that the 2nd prong inferred from the 1st prong—not sufficient to say prong two because of prong one when here are other more plausible (sufficient) explanations—2nd prong is not sufficiently stated. Must be plausible that evidence will reveal alleged activity—The pleading must contain something more…than…a statement of facts that merely creates a suspicion of a legally cognizable right of action, on the assumption that the allegations in the complaint are true (even if doubtful in fact).
· This Decision Retires Conley! We are not going to take Conley literally any more; Conley no longer matters; on basis of anti-trust cases, in a particularly expensive and complicated realm; Imposing different standard of anti-trust—putting more doubt on Conley than necessary—very narrow holding but in so doing made it a very broad opinion; an anti-trust case requires a higher specificity due to nature and costs of discovery of case; not just a notice pleading…
· Dissent: Allegation never denied by defendant; Gate-keeper function; Conley’s “not set of facts” formulation permits outright dismissal only when proceeding to discovery or beyond would be futile; 1st court has ever expressed any doubt in Conley; burden being shifted from possible to plausible; The transparent policy concern that drives the majority’s decision is the interest in protecting antitrust defendants—who in this case are some of the wealthiest corporations in our economy—from the burdens of pretrial discovery.
· Most courts have held that Twombly is not limited to antitrust cases, but that what constitutes the allegation of “plausible” facts to state a claim varies depending upon the substantive claim asserted
· Facts: A group of telephone and internet subscribers sued their local telephone companies, alleging that the companies were violating antitrust laws by agreeing not to compete with each other and to exclude other potential competitors in their market areas. The plaintiff further alleged that as a result of this “parallel” conspiracy, each local company benefited from monopoly power in its own market. The district court dismissed the complaint on the pleadings, but the 2nd Circuit reversed, finding that the plaintiff’s allegations satisfied the “short and plaint statement” requirement of Rule 8 of the FRCP. The Supreme Court granted certiorari to address the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct.
· Rule: FRCP 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the…claim is and the grounds upon which it rests.”
· Rationale: No. Fed. R. Civ. P. 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitle to relief,” in order to “give the defendant fair notice of what the…claim is and the grounds upon which it rests.” Conley v. Gibson. But the plaintiffs have failed to satisfy that requirement in this case. Although Conley suggests that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would support his entitlement to relief, a better standard is the once a claim has been stated adequately, it may be
pose heightened pleading requirements for the assertion of federal claims.” (Sometimes Congress goes around the rules).
c. Pleading Insufficient Facts and Alternative Theories
· Pleading in the Alternative: The pleader, whether plaintiff or defendant may plead “in the alternative.” “A party may set forth two or more statements of a claim or defense alternately or hypothetically.” FRCP 8(e).
o A form of pleading whereby the pleading alleges two or more independent claims or defenses that are not necessarily consistent with each other, such as alleging both intentional infliction of emotional distress and negligent infliction of emotional distress based on the same conduct.
McCormick v. Kopmann: Pleading an alternative where sole witness is deceased may be the only way to discover truth. Downside—in proving one tends to negate the proof under the other count; may affect weight and evidence. Hard to argue both ways but in some instances this may be the best way to go. Rule 8(d) applies to defendants as well as to plaintiffs.
· “What we have said is not to say that a plaintiff assumes no risks in adducing proof to support inconsistent counts. The proof in support of one inconsistent count necessarily tends to negate the proof under the other count and to have its effect upon the jury. While the fact alone of inconsistent evidence will not bar submission of the case to the jury, it may very well affect the matter of the weight of the evidence and warrant the granting of a new trial, even though, as we held, it does not warrant ipso facto a directed verdict or judgment notwithstanding the verdict.”
· Facts: Mr. McCormick was a patron at two taverns owned by the Hulse’s. After leaving the taverns, Mr. McCormick was involved in a fatal collision with Kopmann. Mrs. McCormick sued Kopmann for negligently causing the collision. In a separate count, Mrs. McCormick alleged that the Hulse’s were liable under state dram shop laws for serving Mr. McCormick alcohol, causing him to drive in such a manner as to cause the collision.
· Rule: Pleading in the alternative does not require dismissal of a complaint.
· Rationale: Alternative theories set forth in a properly pleaded complaint are permitted under appropriate circumstances. Although a plaintiff may not recover on both counts, a complaint presenting conflicting theories must not be dismissed until the facts and evidence bearing on the cause of action have been brought forward and considered by a jury.
B. Defendant’s Response Options: Motion to Dismiss, Answer, Counterclaims and Cross-Claims, Default
· Defenses against the validity of complaint: Either in the answer, or by separate motion, defendant may attack the validity of the complaint in a number of respects. Rule 12(b) lists the following such defenses:
o (1) Lack of jurisdiction over the subject matter;
o (2) Lack of jurisdiction over the person;
o (3) Improper venue;
o (4) Insufficiency of process;
o (5) Insufficiency of service of process;
o (6) Failure to state a claim upon which relief may be granted; and
o (7) Failure to join a necessary party under Rule 19.
12(b)(6) motion to dismiss for failure to state a claim: Defense (6) above is especially important: if D believes that P’s complaint does not state a legally sufficient claim, he can make a Rule 12(b)(6) motion to dismiss for “failure to state a claim upon which relief can be granted.” The motion asserts that on the facts as pleaded by P, no recover is possible under any legal theory. (Ex: If P’s complaint is barred by the statue of limitations, D should move under 12(b)(6) for failure
