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Civil Procedure II
Temple University School of Law
Chesney, John

Civil Procedure II
I. Pleading
A. The Complaint
1. Rule 8. General Rules of Pleading
a) requirements for a complaint: claim for relief
(1) short plain statement of the jurisdictional basis for the court to hear the claim
(a) unless jurisdiction has already been determined and the claim asserted needs no additional jurisdictional basis
(2) short plain statement of the claim showing the pleader is entitled to relief
(a) doesn’t have to state facts sufficient to constitute a cause of action
(b) must give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests
i) Swierkiewicz v. Sorema
a. plaintiff’s complaint doesn’t need to contain specific facts establishing a prima facie case of discrimination
1) Rule 8(a) requirement satisfied because complaint gives defendant fair notice of the basis for plaintiff’s claim
ii) for antitrust cases – allegations must have some level of plausibility to support a claim
a. Bell Atlantic v. Twombly
1) plaintiff’s allegations of parallel conduct are not sufficient to state a claim
2) plaintiff’s must allege facts that make an agreement among competitors not just conceivable, but plausible
(3) demand for the relief sought
b) requirements for an answer denial by defendant or other party responding to claim
(1) ways to respond to a claim
(a) admit the truth of each averment or allegation in the complaint,
i) remove allegation from contested facts in lawsuit
(b) deny each averment; or
i) puts matter alleged in issue, requiring the party who pleads the allegation to prove it
ii) if can only deny portion, then must admit part and deny part
iii) if can deny every allegation, then may file general denial
(c) state that the responding party has insufficient information to either admit or deny the allegation
i) effect of a denial
c) affirmative defenses
(1) failure to plead affirmative defense in answer waives it for the duration of the lawsuit
2. Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
a) every paper submitted to the court must be signed by an attorney (or unrepresented litigant)
b) submitting document or advocating position before the court is a certification
(1) based on a reasonable inquiry or investigation, to the best of the attorney’s knowledge, information or belief, the document or position advocated:
(a) is not being presented for an improper purpose (ie. harassment, unnecessary delay, needless increase of cost of litigation);
(b) legal contentions are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law;
(c) factual contentions have evidentiary support or if specifically identified, will have evidentiary support after further investigation or discovery; and
(d) factual denials are warranted by the evidence or are reasonably based on a lack of information and belief, if specifically identified
(2) court my impose an appropriate sanction for a violation of certification
(a) sanction initiated by motion that describes the violating conduct
i) motion served on allegedly offending party
ii) motion filed unless offending party withdraws document, allegation, or contention that assertedly violated Rule 11 within 21 days of service of sanctions motion
(b) court may initiate sanctions process by entering order describing violative conduct and directing offending attorney to show cause why Rule 11 was not violated
3. Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
a) time for the service of the Answer and the Reply
b) various motions may be asserted either in the Answer or in a pre-Answer Mot

alous material
(2) strike any alleged defense that is invalid on its face or insufficient
(a) inappropriate if factual issues must be resolved in order to determine the sufficiency of the defense
(3) disfavored and ordinarily not granted in the absence of a showing of prejudice or confusion of the issues
4. Rule 65
5. Gillispie v. Goodyear Service Stores
6. Dioguardi v. Durning
II. Supplemental Jurisdiction
A. 28 USC 1367

III. Preliminary Injuctions
A. Rule 65(a)
B. Schrank v. Bliss
1. plaintiff’s burden to show
a) irreparable injury because of the unavailability of an adequate remedy at law
b) substantial likelihood of the plaintiff’s success on the merits
c) threatened injury to the plaintiff outweighs any possible injury to the defendant
d) issuing a preliminary injunction will not work any disservice to the public interest
2. balancing test
a) a much stronger showing on one or more of the necessary factors lessens the amount of proof required for the remaining factors
b) but the principal and overriding prerequisite is irreparable harm resulting from the absence of an adequate legal remedy
C. Oburn v. Shapp
1. moving party must show
a) reasonable probability of eventual success in the litigation
(1) reasonable probability movant will prevail on the merits
b) that movant will be irreparably injured pendente lite if relief is not granted
c) the possibility of harm to other interested persons from the grant or denial of the injunction
d) public interest