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Civil Procedure II
Santa Clara University School of Law
Jimenez, Philip

Civil Procedure II
Philip Jimenez – Spring 2017
Heightened Pleading Requirements:
Rule 8(a) is the standard for most pleadings: “A short plain statement” is all that required.
Rule 9(b) is a heightened standard applicable towards fraud and mistake claims. These higher standards are due to the chance for reputation damage towards the accused. The plaintiff must include the content of the statement believed to be false, and describe circumstances to make it clear that it is one of material fact.
Rule 9(g) also requires that claims for “special damage” must be “specifically stated.”
Failure to properly plead heightened standards does not defeat the entire claim, rather, the insufficiently pleaded claims are stripped from the whole of the claim and the remaining claim is then evaluated for sufficiency.
Tellabs v. Makor stated that litigants attempting to demonstrate scienter (a mental state demonstrating intent to deceive or defraud) must also show that their explanation of the facts is at least as likely as other innocent explanations.
The specific language of Tellabs is “strong inference.” That may or may not mesh well with Twombly and Iqbal's “plausibility” standard for pleading in those decisions.
An admission by the defendant establishes the allegation of the plaintiff as true for the purposes of the case.
If a fact is pleaded by the plaintiff and admitted by the defendant, then the issue is no longer in dispute. A denial allows the defendant the ability to put forth evidence to disprove the allegation, and it imposes upon the plaintiff the burden of proving it.
Some defenses must be affirmatively pleaded. They might even go so far as to introduce a new matter.
Inconsistent theories of explanation:
Petitioners ARE allowed to put forward or propose inconsistent and mutually-exclusive claims in their pleadings. Common law disallowed this, but this is no longer the case. The reasoning is that plaintiffs may not have access to all available evidence at the pleading stage, so they may be unable to assert a single conclusive narrative.
Courts reason that it is too high of a standard of pleading to require petitioners to present a narrative that is wholly consistent prior to any discovery, as discovery may reveal evidence unknown to them which affects their understanding of the events. Petitioners may not know which of multiple theories is correct, so the remedy to allow them to assert as many as they reasonably believe is true given what they do know.
Additionally, this reduces litigation as plaintiffs would have to try each theory in a separate suit.
Note: Courts still apply the Twombly and Iqbal “plausible” standards to each pleading. A plaintiff may assert contradictory pleadings as long as each individual pleading is plausible.
Amended Pleadings
A pleading can be amended during the course of the pleading stage according to some rules. Courts have been liberal in allowing amendments compared to common law days when a pleading had to have everything in it that the plaintiff could think of and they could not alter or amend it.
Rule 15(a)(1) allows parties to revise their pleading once “as a matter of course.” This means without having to seek permission of the court so long as they do so within 21 days of serving the original pleading on the opposing party. This is to quickly correct mistakes.
However, as the date of discovery comes closer, courts become less liberal with how pleadings are given leave to be amended. This is because the trial has to move forward, and amending halts it temporarily; therefore, there had better be a good reason for allowing that to happen. Parties opposing allowing the other party to amend their pleading at such a late date likely will succeed in their motions to deny amending the pleading.
Relation Back
Pleadings are subject to statutes of limitations. However, a court may allow a pleading amended after the statute of limitations has passed for the claim in question to stand by categorizing it as an amendment of a prior pleading that was filed within the statute of limitations. However, the amendment must still meet the requirements of Rule 15(c).
Worthington v. Wilson stipulated that an improperly named defendant in a complaint may be renamed properly as an amendment

from joinder of claims).
Permissive Joinder – This is the joining of multiple parties so long as two requirements are satisfied:
All joined parties (whether plaintiffs or defendants) must assert claims arising out of the same transaction, occurrence, or series of transactions or occurrences. AND
There must be a question of law or fact common to all of the joined parties.
DO NOT mix this up with Rule 18, that deals with joinder of claims, which omits the relatedness requirements!
Compulsive Joinder – If a person who should have been joined has not been, then the court should determine how the litigation should be structured to protect that person's interest. If no accommodation can be made, then the action may be dismissed.
Whether or not a particular party is necessary depends on the factual context. 3 criteria exist, and if the absent person meets ANY of them, then that person is “indispensable” and must be joined:
Complete relief cannot be granted in their absence.
Their absence would impede or impair the ability to protect their interests as a practical matter.
If, absent their presence, an existing party would be left subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations because of the interest.
 A party may not be joined because:
The court lacks personal jurisdiction over them.
They have immunity (head of state, Indian tribe, etc).
Joinder would defeat diversity jurisdiction, since they are from the same state as an existing party (most common reason).   
If a person who is deemed indispensable cannot be joined, then court must make a decision about whether to proceed or not. They very well may dismiss the case altogether.