CIV PROCEDURE LIGHT FALL 2014
Chapter 13
Rule 8 Pleading
Pleadingà a paper containing factual assertions (allegations) that support jurisdiction and legal claims in a civil law suit
Complaintà first pleading, stating grounds for federal subject matter jurisdiction, a short plain statement showing that he is entitled to relief AND a demand for relief
Answerà defendants first pleading, responds to the factual allegations of the complaint and asserts defenses and sometimes claims by a defendant
· Counterclaimà defendants claim against the plaintiff
· Crossclaimà defendants claim against a co-defendant
PLEADINGS
Rule 7
(a) Only these pleadings are allowed:
(1) A complaint;
(2) An answer to complaint;
(3) An answer to counterclaim;
(4) An answer to crossclaim;
(5) A 3rd party complaint;
(6) An answer to 3rd party complaint; and
(7) A reply to an answer—this is allowed ONLY if ordered by the court.
PLEADING ALTERNATIVELY OR INCONSISTENTLY—8(d)
· P may plead inconsistently (dif versions of the events causing the harm). Inconsistent claims exists when P does not know how the event that caused the harm might have happened. They are allowed as long as P is not lying about his knowledge of the facts.
· Alternative claims exist when P does not who committed the harm. They are allowed as long as P is not lying about his knowledge of the facts. Ex: victim of a hunting accident can plead claims against two hunters alternatively in the same complaint, when it is unknown who fired the shot.
PLEADING YOURSELF OUT OF COURT
When P shows her claims to be time-barred by the statute of limitations.
PLEADINGS
· The purpose of pleadings is to: (1) give notice of the nature of a claim/defense, (2) state facts, (3) narrow the issues for litigation, and (4) efficiency—help the court throw out bogus claims/defenses without going to trial.
· Legal Insufficiency: based on the facts stated, P is not entitled to a remedy at law.
· Factual Insufficiency: there are not enough facts to give rise to a cause of action.
Rule 8(a)(1-3)—Stating a Claim
(a) A complaint must contain:
(1) A short and plain statement of the court’s grounds for jurisdiction;
(2) A short and plain statement of the facts showing pleader is entitled to remedy at law; &
(3) A demand for the relief sought.
12(b)(6)—Failure to state a claim upon which relief might be granted
o This motion challenges the validity of P’s causes of action; it challenges the validity of 8(a)(2).
o A motion is granted when assuming the factual allegations to be true, P is not entitled to any remedy at law (legal insufficiency).
o We look ONLY at P’s complaint.
TWOMBLY-IQBAL TEST FOR DETERMINING 12(b)(6) OBJECTIONS*****
· Conley’s 2 principles for pleadings were: (1) pleadings provide fair notice; & (2) there is no need for set of facts. T abandoned the “no set of facts,” but maintained the “fair notice” principle.
· T’s standard: (1) the pleadings must provide fair notice & (2) there must be enough facts to must show “plausibility & conceivability” that P is entitled to a remedy at law. “Possibility” is not enough. “Probability,” although accepted, is not required.
A. FAIR NOTICE (CONLEY)
(1) Does the pleading provide fair notice?
Complaint should contain enough info to give D grounds to start preparing his defense (WHO, WHAT, WHERE, WHEN).
B. PLAUSIBILITY (TWOMBLY-IQBAL)
(1) Are the allegations well pleaded?
o An allegation is “well pleaded” when it is more than a recital of the elements of the cause of action.
o Pleading specific facts in sufficient detail
o Mental states may be alleged generally—either as facts or legal conclusions.
(2) The court has to determine whether the facts, assuming they are true and taking all R inferences in favor of P, raise an inference of a plausible claim—a violation of P’s legal rights (whether substantive law would make D liable—look at the substantive law the exam gives you). This determination is done by common sense and judicial experience.
o Rule 84 states form 11 is good—we don’t need detailed actual allegations to satisfy Twombly; more facts don’t make a claim plausible.
o Rule 9 states that an allegation of fraud or mistake (contracts) requires heighten pleading—it must be pled with particularity—facts supporting the allegation of fraud. A conclusory allegation will n
cific pleading of a certain type of claim, the court cannot interpose a higher standard of specificity.)
RESPONDING TO THE COMPLAINT
ENTRY OF DEFAULT—55(a)
· Entry of default is NOT a default judgment. It is an official written notation in the docket by the clerk that D has failed to respond. D’s failure must be shown by affidavits or otherwise.
· Entry of default encourages litigants to follow the rules (D/P must answer within 21 to a pleading that requires a responsive pleading or D/P is in default).
· To avoid an entry of default, D must be actively defending in the manner and time set by the rules (ex: Filing a motion for lack of PJ is defending. Whether the motion is denied is irrelevant). A mere appearance by D is not enough to avoid entry of default.
DEFAULT JUDGMENT BY THE COURT—55(b)
· The non-defaulting party must apply to the court for a default judgment; it is discretionary.
· By defaulting, defaulting party admits the facts stated in the complaint; however, for the court to enter a default judgment, the court must engage in a sua sponte (on its own initiative) 12(b)(6) analysis (Twombley)
· If defendants representative has appeared, although not as mandated by the rules, D is ENTITLED to at least 7 days’ written notice of a hearing on entering a default judgment.
DEFAULT JUDGMENT BY THE CLERK—SUM CERTAIN RULE—55(b)(1)
· If non-defaulting’s claim for damages is for a sum certain or a sum that can be made certain by computation, the clerk—upon P’s request with an affidavit showing the amount due—MUST enter judgment for that amount and costs against defaulting party, without having to apply to the court for the default judgment.
· The court is not required to hold an evidentiary hearing to determine damages.
SERVICE AND PJ—required for DJ
