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Civil Procedure II
Elon University School of Law
Hoffman, Peter T.

Civil Procedure II
Spring 2013
I. The Complaint:
·         Rule 8
·         Rule 9
·         Rule 15
A.   Complaint generally: The complaint is the initial pleading in a lawsuit, and is filed by the plaintiff
1.    Commences action: The filing of the complaint “commences” the action. The date of filing of the complaint is what counts for statute of limitation purposes in federal question suits (though in diversity suits, “commencement” for statute of limitation purposes depends on how state law defines commencement)
2.    Elements of a Complaint:
a.    Jurisdiction: A short and plain statement of the grounds upon which the court’s jurisdiction depends;
b.    Statement of the claim: A short and plain statement of the claim showing the pleader is entitled to relief; and
c.    Relief: A demand for judgment for the relief (e.g. money damages, injunction, etc.) which the pleader seeks.
B.   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.
1.    Dismissal: Even though the level of factual detail required is not high, the complaint may contain such sparse factual allegations that the defendant may not successfully move to have it dismissed for “failure to state a claim upon which relief may be granted.” It’s difficult for defendant to satisfy this standard. But if the court, after assuming that all factual allegations in the complaint are true, cannot “plausibly infer” that the defendant is liable, the court will dismiss the complaint for failure to state a claim.
C.   Special matters: Certain special matters must be pleaded with particularity if they are raised at trial: (these apply to answer, too)
1.    Catalog: The special matters (Rule 9) are:
a.    Denial of a party’s legal capacity to sue or be sued
b.    The circumstances giving rise to any allegation of fraud or mistake
c.    Any denial of performance or occurrence of a condition precedent
d.    The existence of judgments or official documents on which the pleader plans to rely
e.    Material facts of time and place
f.     Special damages; and
g.    Certain aspects of admiralty and maritime jurisdiction
2.    Effect of failure to plead: The pleader takes the full risk of failure to plead any special matter
a.    Example: P brings diversity claim for breach of contracts against D. P has suffered certain unusual consequential damages, but fails to plead these special damages as required by Rule 9(g). Even if P proves these items at trial, P may not recover these damages, unless the court agrees to specially permit this “variance” between proof and pleadings.
I. Notice Pleading: The new “plausibility” standard:
·         Rule 8
A.   12(b)(6) Motion to dismiss for failure to state a claim can succeed by demonstrating that even if every fact asserted in the complaint is taken as true, no recovery is “plausible” under ANY LEGAL THEORY. The standard is easier for the defendant to satisfy than the standard that applied before 2007.
1.    Assumption of Truth: When the court is deciding whether the complaint should be dismissed for failure to state a claim, all truly “factual” allegations in the complaint are to be assumed to be true.
2.    Pure legal conclusions: But pure legal conclusions don’t quality for this assumed-to-be-true treatment:
                                          i.    Example: P is a Pakistani Muslim who was imprisoned by federal authorities after 9/11. He brings a federal civil rights action against D1 (US Attorney General) and D2 (the FBI director). He alleges that the two Ds knew and approved of their subordinates’ plan to imprison P and hundreds of other Muslim men in extra-harsh conditions solely on account of the men’s race, religion, or national origin, thus violating their constitutional rights. The two Ds move for dismissal under 12(b)(6), alleging that even if the subordinates intentionally violated P’s rights, P has not sufficiently alleged facts showing that the two Ds acted with a discriminatory purpose. Held for Ds: complaint dismissed. It’s true that factual allegations in the complaint must be taken as true. But pure “legal conclusions” don’t qualify for this “taken as true” treatment. And those allegations that are truly factual must “plausibly suggest” that P is entitled to relief. In determining whether the complaint meets this “plausible suggestion of entitlement to relief” standard, the judge is to draw on his “judicial experience and common sense.” Here, the complaint does not satisfy the plausibility standard, because even taking P’s truly-factual allegations as true, the “more likely explanation” of the Ds’ motives is that they were making a bona fide pursuit of national security, not acting for forbidden discriminatory purposes. (Ashcroft v. Iqbal)
3.    Where P lacks person knowledge:

rge corporate defendants.
D.   Affirmative Defenses: There are certain defenses which must be explicity pleaded in the answer, if D is to raise them at trial.
a.    Listing: 8(c) lists 19 specific affirmative defenses, of which the most important are contributory negligence, fraud, res judicata, statute of limitations, and illegality.
b.    General formulation: Also, Rule 8(c) contains a more general requirement, by which D must plead affirmatively “any avoidance or affirmative defense.” Any defense which relies on facts particularly within the defendant’s knowledge is likely to be found to be an affirmative defense.
E.   Counterclaim: In addition to defenses, if D has a claim against P, he may (in all cases) and must (in some cases) plead that claim as a counterclaim. If the counterclaim is one which D is required to plead, it is called a compulsory counterclaim. If it is one which D has option of pleading or not, it is called permissive counterclaim. A counterclaim is compulsory if it “arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim.” (Rule 13(a)).
I. Rule 12(b) Motions to Dismiss:
·         Rule 12
A.   Defenses against 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 defenses:
1.    Lack of SMJ
2.    Lack of PJ
3.    Improper venue
4.    Insufficiency of Process
5.    Insufficiency of SOP
6.    Failure to state a claim upon which relief may be granted; and
7.    Failure to join a necessary party until Rule 19.
B.   12(b)(6) Motion to Dismiss for Failure to State a Claim:
1.    Defense 6 is important; if Defendant believes that Plaintiff’s Claim doesn’t 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 Plaintiff, no recovery is possible under any legal theory.