WELL-PLEADED COMPLAINT
Rule 3 – Civil action commences when a complaint is filed with the court.
Rule 8(a) – Claim for Relief
a) A pleading that states a claim for relief must include:
1) A short and plain statement of the grounds for the court’s jurisdiction (unless there is no need for jurisdictional support)
2) A short and plain statement of the claim showing the pleader is entitled to relief
3) A demand for relief sought
Rule 9(b) – Fraud or Mistake; Conditions of Mind.
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
Conley v. Gibson (1957) – “no set of facts” language; only claims that cannot be proven by any set of facts should be dismissed – consistent with move away from formality in pleading and shifting “screening” and isolation of facts/claims to discovery/summary judgment.
Swierkiewicz v. Sorema N.A. (2002) – Discrimination claim; D seeks to hold P to heightened pleading standard to meet McDonnell Douglas prima facie case standard. Supreme Court interprets 8(a)(2) to provide fair notice of claim and grounds on which it rests (Conley)- not an evidentiary standard or requirement to satisfy a prima facie case for discrimination (whether claim can prevail). Reserves screening for discovery and summary judgment.
Negative implication – textual argument that anything not included in 9(b) does not require heightened pleading. The relaxed standard avoids weeding out claims where P is at an evidentiary or resource disadvantage (i.e. civil rights actions).
Heightened Pleading?
Rule 8(d) – Pleading to be Concise and Direct; Alternative Statements; Inconsistency.
1) Each allegation must be simple, concise, direct. No technical form required.
2) Party can set out 2+statements of a claim alternatively in single count/defense or separately. if ANY ONE of those statements is sufficient, the pleading is sufficient.
3) Party can state unlimited claims/defenses regardless of their consistency.
“[Even] if taken as true, the allegations of the complaint suggest [only] that [facts of the complaint].”
Consider the difference b/w proving/prevailing and stating a claim. i.e. prima facie case undermined by Swierkiewicz.
Bell Atlantic Corp. et al. v. Twombly (2007) – Supreme Court adds a plausibility standard to notice standard in Conley denying “no set of facts” but claiming consistency w/ Swierkiewicz; in Twombly, P alleged parallel conduct of the phone companies but could not raise the claim to a plausible (or above a speculative) level. Claims suggested conduct merely consistent with conscious conspiracy, and parallel conduct in itself is not illegal. Consider also Qwest CEO comment: “might be a good way to turn a quick dollar but that doesn’t make it right”
Implications: Formalistic approach sought to be avoided by simplicity pleading standard – meant to err in favor of allowing too many claims so that meritous ones are less often denied. Court here judged in favor of denying a claim that would result in huge expenditure and “massive factual controversy”
Erickson v. Pardus – two weeks after Twombly the court reaffirmed Rule 8(a)(2) “short and plain statement of the claim showing that the pleader is entitled to relief” ***this case involved the accusation of wrongful termination of Hep C treatment by prison guards, endangering his life, though the prisoner was still in need of treatment
RULE 11 LIMITS
Rule 11 – Signing Pleadings, Motions, and other papers; Representations to the Court; Sanctions.
a) Signature/Info of one attorney/the unrepresented party must be on every pleading, motion, or other paper. Unsigned papers are stricken unless fixed immediately
b) Reps to the Court – This certifies that papers filed represent info to the best of the person’s knowledge, information, and belief, formed AFTER an inquiry reasonable under the circumstances:
1. No improper purpose i.e. harass, delay, to increase costs
2. Claims, defenses, legal contentions are warranted under existing law OR nonfrivolous arguments for modification of law
3. Evidentiary support for factual contentions or likelihood of uncovering that support in reasonable investigation/discovery
4. Denial of factual contentions is warranted by evidence; or reasonably based on belief/lack of info (see p. 487 for more info on 1-4)
What is a reasonable inquiry under the circumstances?
1) Sufficient time for investigation
2) Extent of attorney’s reliance on client for facts
3) Whether case was accepted from another attorney
4) Complexity of facts and ability to do a pre-filing investigation
5) Whether discovery would have been beneficial Kraemerv v. Grant County
History – 1983 Version
1) Held counsel to objective standards of reasonableness rather than “good faith”
2) Mandatory sanctions w/out safe harbor
3) Dramatic upswing in motions
4) Consider the strain to certain advocacy groups where strictness of “reasonable” is not based on good faith; i.e. civil rights claims
Perspective and Analysis
Scalia dissent to ’93 Amendment
1) To satisfy Rule 1 – “just, speedy and inexpensive” determination of actions, frivolous pleading and motions have to stop
2) New revision eliminating sanction requirement, comp for litigation expenses, an allowing safe harbor, makes it “toothless”
3) This version protects the abuser; the filer of frivolous claims, not the abused
4) “Baseless filing puts the machinery of justice in motion, burdening courts” – filing a frivolous action, then, merits sanction even after a dismissal
Consider impossible balance b/w between goals: access/advocacy/innovation (’93) v. efficiency/expense/deterrence (’83)
Rule 11 Sanctions
c) [Rule 11] Sanctions
1. After notice + reasonable opportunity to respond, the court can impose an “appropriate” sanction for 11b violation on any attorney, law firm, or party (law firms are held jointly responsible for violations absent exceptional circumstances).
2. Motion for Sanctions: must be made separately from other motions. must describe specific conduct under violation. Must be served under Rule 5; there is a 21 day “safe harbor” to correct before it is filed in court. Winning party may be entitled to reimbursement of expenses incurred in the motion.
3. COURT can call a party out on Rule 11b violations and require defense of the conduct.
4. Sanction meant to deter repetition and similar conduct by others. Can be nonmonetary, penalty paid to the court, or attorney’s fees/other expenses arising from the motion reimbursed to the moving party.
5. Limits on Monetary Sanctions – no monetary sanction for:
a. Violation of 11b2
b. In 11c3 violation voluntary dismissal or settlement by/against the party to be sanctioned
6. An order (by the court) has to describe conduct and basis for sanction.
d) THIS RULE DOES NOT APPLY TO DISCOVERY
Christian v. Mattell – “grounds [must] be separately articulated to assure that the conduct at issue falls within the scope of sanctions remedy.” Court remanded sanction to delineate conduct w/in the rule v. outside of pleading. Rule 11 applies specifically to signed papers, motions, and pleadings not other wrongful conduct, i.e. lambasting his client in this case or discovery abuses. Counsel has to alter papers in response to Rule 11 motions w/in 21 days and did not do so.
Rule 4 Service
Rule 4 – Summons
a) Contents; Amendments
1) Contents of a summons
2) Court may permit amendment of the summons
b) Issuance – can be submitted on or after filing complaint. After review it is signed, sealed, issued to P to be served to D.
c) Service
1) Summons & copy of complaint w/in time set by Rule 4m
2) By whom – 18 y/o and not a party
3) Can be served by US marshall or other court appointed ind.
Rule 4 – d) Waiving Service
1) Requesting Waiver – P has duty to serve avoiding unnecessary expenses – P can notify D requesting waiver of service.
a)-g) Notice, sending, and return requirements.
2) Failure to Waive – If D in the US fails to waive, sign, return w/out good cause, the D:
a) Pays expenses later incurred in service
b) Reasonable expenses for motion required to collect those service expenses
3) Time to Answer Waiver – If waiver is returned promptly, D doesn’t have to respond to complaint for 60 days after request was SENT…90 if outside US.
4) When P files a waiver proof of service not required (waiver service applies as though a summons and complaint were served at the time of filing the waiver).
5) Waiving service of summons doesn’t waive objection to personal jurisdiction or venue.
Consider benefits to D of waiving service under 4(d)(2)-(3) built into the rules including monetary and time incentives to waive (under Rule 12 responsive pleading without waiver is required w/in 20 days).
US/INTERNATIONAL SERVICE
e) Serving Individual w/in US…this person can be served by:
1) According to state law where district court is located or:
2) doing the following:
A. Delivery to the individual directly
B. Delivery at dwelling w someone of suitable age and discretion who lives there also
C. Delivery to authorized agent
f) Serving Individual outside US…
1) In accordance w/ international agreement
2) If international agreement does not exist or appropriately specify; by a method reasonably calculated to give notice:
A. In accordance with the country’s law for service
legally sound “entitling” P to relief, the second did not provide sufficient notice by leaving undefined the “alleged conduct” central to the claim. Refers to Twombly – what if P had removed “conspiracy” language – and also addresses the pleading requirements stating that different types of claims require different information to reach the notice standard i.e. a blanket statement of “racial bias” in hiring provides sufficient notice to D re: the nature of the claim and the likely grounds on which it rests AND there is no other “easily provided” information P can provide more “notice” of the grounds of the claim.
Is it fair to say that they revise the pleading standard further by adding the easily provided clearly pertinent notice standard and distinguishing among types of claims?
p. 407 – consider amendments to pleading here and Conley “[FRCP] reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”
WAIVING DEFENSES
h) Waiving/Preserving Certain Defenses
1. A party waives defenses listed in 12(b)(2)-(5):
A. In accordance with 12(g)(2) or
B. By failing to either:
i. Motion
ii. Include it in responsive pleading or under 15(a)(1)
2. Failure to state a claim, violation of 19(b), or failure to state a legal defense may be raised:
A. Pleading allowed/ordered under 7(a)
B. Motion under 12(c) or
C. At trial
3. IF there is lack of subject matter jurisdiction at any time, court must dismiss
i) Defenses in 12(b)(1)-(7) or 12(c) must be heard prior to trial unless deferred by the court.
12(b)(2-5)
If you don’t include these in the first response, it’s waived
12(b)(6-7)
These can be raised in any answer at any time – at any point during trial – can’t be raised in a second pre-answer motion
12(b)(1) is never waived– subject matter jurisdiction because it has constitutional underpinnings
Answer & Reply
Rule 8(b) –
1) In response to a pleading a party must A) plainly state its defenses to claims asserted and B) admit/deny allegations asserted
2) “Fair” response to substance of an allegation
3) Distinguish (in good faith) general v. specific denials
4) Partial denial of an allegation means admitting the rest
5) IF there lacks enough info on which to base the admission/denial – it must be stated and will be treated as a denial
6) If party doesn’t deny, they are essentially admitting to the allegation
Rule 8(c) –
1) Party must state any avoidance or affirmative defense i.e.:
-accord and satisfaction; arbitration and award, assumption of risk, contributory negligence, etc…
2) If these are mistakenly designated as counterclaims or vise versa, the court must “if justice requires” treat it as though it were correctly designated or impose terms for doing so.
King Vision Pay Per View – D council demanded strict proof and submitted numerous “non-response[s]” RATHER than admitting or denying allegations. This is not prescribed by 8(b) but consistently implemented by irresponsible lawyers. Because the allegations were not denied, they are “admitted.” [under the revised 8(b)(6)].
Under 8(b) – a response is either to admit, deny, or state a disclaimer (i.e. good faith lack of information or knowledge to respond – treated as a denial).
Zielinski v. Philadelphia Piers – D denies paragraph that “a motor-driven vehicle…owned, operated and controlled by D” caused the collision. Denial precluded D from bringing his claim against the appropriate D within statute of limitations (they were not the owners). Judge treats inappropriate denial as admission – in the interest of equity D is estopped from denying agency b/c it would unfairly deprive P his rights. Note that in either case, the same insurer would have been held liable.
