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


Civ Pro

Spring 2011

1. Chapter 5. Pleadings

A. Introduction

A lawsuit begins when the partied file statements of their pleadings, i.e. their claims and defenses, with a trial court

A.Two kinds of pleading

1. Notice

o Used in federal court and in most state trial courts

o Requires very little of the pleader

o Complaint need only provide ” a short & plain statement of claim showing that the pleader is entitled to relief (FRCP 8(a)(2)

B. Code

o Used in minority of state courts, but included CA and NY

o Sometimes called “fact pleading”

o Must provide ” a statement of the facts constituting the cause of action, in ordinary and concise language” (CCCP 425)

· The function of the pleadings, in both notice and code, is simply to provide notice to the other party of the pendency of the action and the nature of the pleader’s contentions, so as to facilitate informed preparation for discovery, settlement, or disposition on a more complete factual record.

Form and style of pleadings

The rules on the format of the pleadings, and other papers submitted in litigation, come from statutes, court rules, and custom

· Caption – name of court, title of action, etc.

· Body of pleadings – separate causes of action are stated separately

· Parties – named, and capacity if applicable

· Prayer – statement of the relief sought

· Subscription and verification – execution of the pleading

· Validity of a claims

· Relies on existence of an applicable rule of law providing for the requested relief, and

· Existence of facts sufficient to satisfy the requirements of the rule of law

· Parties involved must be notified of the case through a complaint

o Federal court complaint – must allege grounds for subject matter jurisdiction

Determining the Substantive Sufficiency of the Complaint

· A complaint must contain a statement of the facts upon which recovery is sought.

· Allegations should be simple, concise and direct.

Elements of a complaint

· If claim based on common law, most jurisdictions have cases that state the elements of a particular type of claim.

· If claim based on statute, the required elements may be derived from statutory language.

Access Now v Southwest Airlines

o Facts: Southwest Airlines had an consumer website that was not accessible to software that assisted visually impaired persons. Access Now, an advocate for disabled persons, and Gumson, a blind individual, sued Southwest for injunctive and declaratory relief under the Americans with Disabilities Act. Access claimed that Southwest’s website was inaccessible to blind persons. Southwest moves to dismiss on the ground that its webpage is not a “place of public accommodation” and therefore does not fall within the ADA.

o Issue: Should a case be dismissed if the allegations in the complaint do not fit within the statutory requirements of the cause of action?

o Held: Yes, under FRCP 12(b)(6), dismissal of a claim is appropriate when it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations.

o Analysis: The key question is whether Southwest’s website is a place of accommodation . The ADA specifically identifies 12 categories of places of public accommodation. To fall within the scope of the ADA, a public accommodation must be a physical, concrete structure. The statute does not apply to “virtual” spaces such as the webpage.

o Conclusion: Access failed to state a claim upon which relief can be granted under the ADA.

Devices for challenging the substantive sufficiency of a complaint

· Common law demurrer

a. General demurrer

§ Admits the matters alleged in the complaint to be true

§ Challenges whether even if proved, the pleader would be entitled to relief

b. Special demurrer

§ Challenges the pleading as to form

· Code states

o Many states passed codes of civil procedure

Motion to dismiss

o Under the FRCP, the fxn of the demurrer is performed by the motion to dismiss for failure to state a claim upon which relief can be granted – FRCP 12(b)(6)

FRCP Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(b) How to Present Defenses.

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

(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

Motion to strike

C. The Formal Sufficiency of the Complaint: How Specific Must a Pleading Be?

· Specificity of pleadings

1. Historical view – traditionally, pleading rules required a plaintiff to plead facts which, if true, showed an invasion of his legal rights. Led to adoption of the Federal Rules of Civil Procedure (FRCP) in 1938

2. Federal Rules – recognizing that facts are not always available until after discovery, and discovery cannot begin until after the complaint is filed, the FRCP replaced fact pleading with notice pleading, so that the plaintiff need merely indicate the nature of the claim in ” a short and plain statement of the claim showing that the pleader is entitled to relief.”

o Federal Rules also include official sample forms in the Appendix of Forms

extual facts that make the claim plausible.

o Analysis: The factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true. At the summary judgment stage, an antitrust P’s offer of conspiracy evidence must tend to rule out the possibility that the Ds were acting independently. Something beyond the mere possibility of impropriety must be alleged so that Ps with groundless claims cannot be allowed to take up the time of other people during the discovery phase. Nothing in the complaint intimates that the resistance to the upstarts was anything more than the natural, unilateral reaction of each D intent on keeping its regional dominance. “We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the Ps have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”

Modern Code Pleading

· Requiring a more specific statement of claims

o Only well pleaded facts are admitted

§ The general rule is that only properly pleaded facts are admitted for the purposes of ruling on a general demurrer.

§ Improperly pleaded facts (conclusions of law, etc.) would not be considered in determining whether the complaint pleaded facts sufficient to state a COA.

§ Thus, the general demurrer may be used to require greater specificity , much like a special demurrer.

o Special demurrer

§ Normally the device for challenging lack of specificity is the special demurrer, but this is largely outmoded

§ The present rules allow almost unlimited opportunity to amend the complaint

Allocating and Adjusting the Burden of Pleading

Allocating the Burden of Pleading

· Allocation of Relevant Elements

o The substantive law determines what elements are relevant to a case.

o Allocating the burden of pleading and proof is a procedural matter

o The plaintiff must allege enough particulars about the incident to constitute a prima facie case, which means that the facts alleged would permit recovery if uncontroverted and in the absence of an affirmative defense

o Other facts may also be relevant to the case, but they will be considered only if alleged by the defendant, usually as an affirmative defense

o Rules of allocation may be based on the way the statute is written, on custom, or on the need to effectuate public policy