Fisher – Civil Pro I – Fall 2011
PLEADINGS – provides other parties notice and an opportunity to be heard consistent with procedural due process, as well as provides notice to court of the nature of legal/factual issues
Complaint
– To survive a motion to dismiss (12(b)(6)), complaints must formally and substantially sufficient to provide adequate notice of the legal and factual nature of the claim by stating a short and plain statement entitling P to relief (8(a)(2)) under the plausibility standard (Twombley), reviewing each allegation, striking those conclusory (Iqbal)
o Formally Sufficient – meets the goal of notice pleading by providing enough facts to notify D about the nature of the claim (i.e. Naming D, Type of relief sought, Date, etc.)
o Substantively Sufficient – alleges behavior by the D that is a legal violation for which P is afforded a remedy (Conduct that broke law, entitling P to relief)
– Rule 8(a)(2) – (a) A pleading that states a claim for relief must contain: (2) a short and plain statement of the claim showing that the pleader is entitled to relief
o Must be formally and substantively sufficient
– Rule 12(b)(6) – Motion to dismiss a complaint for failure to state a claim upon which relief can be granted (defense is preserved even if fail to motion – Supp. 154)
– Plausibility Standard – Factual allegations must show plausible grounds to infer that a legal violation took place; Need to be plausible, not just conceivable or possible (Twomb)
o Facts construed in favor of P, but must be enough facts to raise reasonable expectations that discovery will reveal evidence of alleged misconduct
o Not Plausible – Blanket statements or even detailed factual allegations that are merely labels, conclusions, and formulaic recitations
o Parallel conduct with legal violation does not mean plausible
– Methodology for Plausibility Standard – Examine each individual allegation separately, and strike any conclusory allegation from the complaint (Iqbal)
o DO NOT examine complaint as a whole
§ However may be problem if the factual allegation together lead to conclusion at end of complaint (Form 11)
o Allegations must be facially plausible, allowing the court to draw a reasonable inference from the factual matter that D is liable for the misconduct alleged
o Conclusory claims are not entitled to assumption of truth
o If there is an obvious alternative explanation, then likely does not suggest plausibility that would entitle P to relief
– Conley Overturned by Twombley/Iqbal (“No set of facts”)
o Conley – A complaint should not be dismissed for failure to state a claim unless not set of facts in support of his claim which would entitle him to relief
§ Allowed pleadings to be fairly, generally, and liberally construed, as long as opposing party had a clear sense of complaint
§ No set of facts ex: P’s makes allegations against God, Cause of action not recognized by fed. statutes, Private party is sued for constit. violation
– Swierkiewicz conflicts with Twombley/Iqbal
o Unlike Conley, the Swierkiewicz precedent is still good law
o Since evidence may be hard to gather during the pleading stage, the pleader does not need to prove all aspect of the case and can wait until discovery
– Choosing between Twombley/Iqbal and Swiekiewicz Standards
o Twombley/Iqbal dealt with an expensive discovery stage and sensitive information, while Swierkiewicz was relatively simple in comparison
o Caution in overly using Plausibility Methodology, needs to be balanced
§ Do not need to go that extra step in every single case, some are more complex & require more detailed factual allegations to reach plaus. stan., while other cases are simpler and less specificity to reach plaus. stand.
§ More complex – Constitutional Violations against Govt. Officials, Antitrust Cases, Discrimination (note Conley/Swierk before Twomb/Iq)
§ Simpler – Negligent driver in Rose v. Young
– Heightened Pleading Standard – Rule 9 for particular cases such as for Fraud
o Twombley/Iqbal are not heightened pleading, apply to all civil cases
– Cases:
o Conley (P) v. Gibson – P sued D (Union) for racial discrimination while employees. D filed 12(b)(6) stating P do not have enough facts for which relief can be granted. P won setting “no set of facts” standard for granting 12(b)(6).
o Swierkiewicz (P) v. SOREMA – P sued D for violating his right to equal employment opportunity, claiming his was fired on account of his national origin. Court ruled do not need to plead all the elements of the case, which can be uncovered in discovery. Employment discrimination is not 9(b).
o Twombley (P) v. Bell Atlantic – P alleged telecom. companies were engaging in parallel conduct of noncompetition indicative of conspiracy in violation of Sherman Antitrust Act. Over ruled Conley and “No Set of Facts” standard and replaced it with “Plausible Standard”
o Iqbal (P) v. Ashcroft – P was arrested after 9/11 and detained under restrictive conditions. Sues attorney general (Ashcroft) and head of FBI (Mueller) for violation of his Constitutional Rights for the treatment he received while detained on account of his race. Court applied plausibility standard and added that conclusory statements were not entitled assumption of truth. Also established method for analyzing complaints, where each allegation examined separately.
Defendant’s Response (Answers)
– Rule 4 (File and Serve) – Purpose is to provide Ds the opportunity to defend themselves by being given adequate notice of the complaint
o Based on principles of DUE PROCESS
o 4(m) – must be served within 120 days after complaint filed or dismissed
o D can be evasive to service, so no particular method of service is required (4(f)), only that method be reasonably calculated to provide notice & chance to respond
– Rule 12 – D’s must respond to complaint w/in 21 days by responsive pleading (8(b)-(c)) or by motion (Rule 12 (b))
o Rule 12 (b) – Asides from 12(b)(6), none of the defense motions go to the merits of the case, instead seeking dismissal for prelim. matters and proced. Flaws
o 12(b)(2-5) waived if not asserted, 12(b)(6) preserved (refer 12(g),(h))
§ Preserved b/c difficult to determine from outset whether a claim is legally sufficient; too rigid if D lost right on a procedural tech. (Supp 154)
o 12(b)(1-3) are fatal to case if granted, 12(b)(4-5,7) are curable
– Rule 8(b) – Defenses; Admissions and Denials
o Same standard as complaint; short and plain statement to each individual allegation asserted against them, which either admits or denies each allegation
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lief, that it has been formed after an inquiry reasonable under the circumstances. Thus claims should:
o Not be presented for any improper purpose; Be supported by existing law and not from non-frivolous arguments; Should have evidentiary support or reasonable in that evidentiary support found in discovery; Adequate denials of allegations
§ If attempting to modify, reverse, extend law, must state that doing so
o Ex: Alleging a conspiracy been corporation and its officers was non-frivolous because had just be ruled corp. cannot conspired against itself (Frantz)
§ Lawyer should have known this, resulted in sanction because complaint was filed without a reasonable inquiry into the law
– Rule 11 (c) – Sanctions
o 11(c)(2) – Safe Harbor – Motion to sanction an opposing party for a pleading violation has to be sent to opposing party, providing them 21 days to amend complaint before the party requests the sanction motion from the court
o 11(c)(3) – Court may order sanct. sua sponte, on its own initiative, no safe harbor
o If provided safe harbor then could be held to “objectively reasonable” standard, but if NOT provided safe harbor then “subjective bad faith” stand.
§ Without safe harbor, lawyers can argue was in subjective good faith
o Nature of sanctions and limitations provided under (4) and (5), trend against monetary charges (specifically attorney fees (1983 and 1993 Amendments))
§ Party not penalized for legally frivolous arguments, aside from monetary damages may have to explain party mistake, embarrassing attorney
– Cases:
o Patsy’s Brand (P) v. IOB Realty (In re Pennie & Edmonds LLP) – D’s prior attorney allowed them to submit false affidavits, attorney withdrew. D told Pennie & Emonds (new attorney) that just made mistakes and submitted new affidavit with same facts as previous. Though court accepted that P&E were acting in good faith (since D and partner were willing to testify about affidavit – but if so, affidavits were conclusively proven false), the court ordered sanctions, sua sponte, because P&E were not objectively reasonable. P&E appealed the sanctions claiming that since no safe harbor, should be allowed a higher, subjective good faith standard. Sanction reversed.
o Frantz (P) v. United States Powerlifting Federation – P sued D for attempting to monopolize power lifting. Court dismissed P’s claim against company president because it had just been ruled in supreme court that corporation officials can not conspires against themselves. P was sanctioned for this claim because it was a frivolous argument on an issue just recently decided. Bottom line- lawyers need to do their homework before filing their complaints.
