Civil Procedure
PLEADINGS:
COMPLAINT:
– 8a : All complaints must contain:
o A short and plain statement of the grounds for subject matter jurisdiction
o A short and plain statement of the claim showing that the pleader is entitled to relief
o A demand for judgment setting out relief the pleader seeks
o NOTES:
§ Need not explicitly state the legal theory on which she relies – as long as they state sufficient facts
§ At the same time P must provide enough of the basic facts so that the D can formulate a response.
§ All averments shall be SIMPLE, CONCISE AND DIRECT.
§ TWOMBLY STANDARD:
· Must assert enough facts in sufficient detail to make a given cause of action plausible
§ Decision could result in a swing towards requiring complaints to set forth facts implicating each elements of a claimInstances where more than “short plain” is required.
· Fraud and mistake: must be stated with particularity
· Special damages: injury suffered by P that would not be reasonably expected, must be stated with particularity.
Pre-Answer Motions:
– 12b:
o Lack of subject matter jurisdiction
o Lack of personal jurisdiction
o Improper venue
o Insufficiency of process
o Insufficient service of process
o Failure to state a claim upon which relief can be granted
o Failure to join
– 12e – Motion for more definite statement – when claim in vague or ambiguous
– 12f – motion to strike – have stricken any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.
– 12h – if a party does file a R 12 and omits the following defenses, they are barred not only from raising those defenses in a successive R 12 motion, but is also barred from ever raising those defense.
o Lack of personal jurisdiction,
o Improper venue,
o Insufficiency of process,
o Insufficiency of service of process.
o If you do not file a pre-answer motion, you may assert these defenses in the answer.
o If in the answer you fail to include these, the defense is waiv
ences of failing to include in the Rule 12 motion every defense and objection available under Rule 12 are discussed below.
o 12(h), if a party does file a Rule 12 pre-answer motion and omits the following defenses, she is barred not only from raising those defenses in a sucessive Rule 12 motion, but is also barred from ever raising those defenses:
§ lack of personal jurisdiction
§ improper venue
§ insufficiency of process
§ or insufficiency of service of process
o If, on the other hand, a party does not file a pre-answer motion, she may assert the above-listed defenses in her answer
o if, however, in her answer, she fails to include one of the above-listed defenses, that defense is waived Fed. R. Civ. P. 12(h)(1).
Three of the 12(b) defenses are not waived when they are omitted from a Rule 12 pre-answer motion:
