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Civil Procedure II
Elon University School of Law
Fink, Eric Mitchell

Eric Fink                Civil Procedure II              Spring 2010         Outline
·         FRCP 8(a) – General Rules of Pleading: Claim for Relief.
o   A pleading that states a claim for relief must contain:
§ A short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claims needs no new jurisdictional support;
·         Focus is on subject matter jurisdiction.
·         Alleging reasons for jurisdiction, not arguing facts.
§ A short and plain statement of the claim showing that the pleader is entitled to relief; and
·         Tells court why you are here.
·         If pleading is insufficient it can be dismissed by a Rule 12(b)(6) motion.
·         Sufficient Pleadings under Rule 8(a)(2)
o   Twombly
§ Complaint alleged collusion and violations of the Sherman anti-trust act.
§ Allegation of parallel conduct was not sufficient to constitute a violation of the act.
o   Court assumes that the factual allegations made in a pleading are true, but not that legal conclusions are true.
o   Elements of Claim
§ Has the plaintiff said enough in their pleading that it is clear that they fulfill the elements of the claim?
o   Separate out factual allegations from legal conclusions.
§ Access adequacy of factual allegations.
§ Separate out legal conclusions, as court does not accept them as true.
o   Ashcroft v. Iqbal
§ Fact alleged in complaint must be sufficient for the court to say that it is plausible for a claim to exist.
·         Overly lengthy statements prohibited.
·         Congress can increase pleading requirements through statute.
o   Ex. Private Securities Litigation Reform Act
·         Plaintiffs MAY include multiple allegations that assert alternate grounds for relief based on a single set of facts and also allow plaintiffs to plead inconsistent allegations.
·         Rule 9(b) has increased pleading requirement for fraud.
§ A demand for the relief sought, which may include relief in the alternative or different types of relief.
·         Prayer for Relief
o   Money, injunction, declaratory judgment, specific performance, etc.
o   Default judgment prevents you from getting more than your prayer for relief asks for.
o   Final judgment will give the amount of money as decided by the court, which can exceed the prayer for relief.
o   Special damages must be specifically stated.
·         FRCP 12 Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
o   FRCP 12(b) Defenses and Objections – How Presented
§ Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
·         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
o   Failed to plead enough detail to satisfy your pleading burden under Rule 8(a)(2); OR
o   Even if everything alleged in the complaint is t

       Party that lacks information about a claim must state that, and this acts as a denial.
·         Rule 15. Amended and Supplemental Pleadings
o   (a) Amendments Before Trial.
§ (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
·         (A) 21 days after serving it, or
·         (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
§ (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
§ (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
o   Court should freely allow amendment of a pleading when justice so requires.
o   Rule 15(c). Relation Back
§ (1) Allows a pleading to be amended after the applicable statute of limitations period has expired.
(A) If the law that provides the applicable statute of limitations