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Civil Procedure II
Temple University School of Law
Jacobsen, Kenneth A.

Civ Pro II (Jacobsen – Spring 2011)
o    Pleading
·         Starts an action
·         Plaintiff's factual allegations must be accepted as true, in order to satisfy the plausibility standard.
§  Rule 11 remedy for lying
o    Complaint
·         Civil action is stared by filing complaint
·         Gives notice to the other side of your claims
o    Rule 8(a)
·         Claim for Relief:  Must Contain:
§  a stated basis for jurisdiction
§  “a short plain statement of the claim showing you are entitled to relief”
§  a demand for relief
o    Conley v. Gibson pg 407
·         Pleading could be very simple.
·         Standard articulated
§  complaint had to be upheld unless it appeared
§  beyond doubt that the plaintiff could prove no set of facts
·         Complaint must state demand
o    Swierkiewicz v. Sorema pg 408
·         Don’t need to plead a prima facie case of discrimination in your pleading
·         Proof standard  was prima facie
·         Pleading standard is much lower
·         give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests
o    Bell Atlantic v. Twombley
·         New pleading standard
§  Plausibility
§  Factual allegations must be enough to raise a right to relief above the speculative level
·         If there is an equally likely that an innocent conduct is possible,
§  then the conspiracy is not plausible, because innocent conduct is just as plausible.
·         Argument for/against it
§  Without this standard, you’d make a lot of businesses go through a lot litigation for no good reason.
§  how is a plaintiff going to be able to prove anti trust? CEOs aren't going to leave evidence of anti trust lying around.
o    Court has to also interpret all inferences from the fact in plaintiff's favor.
·         assuming all is true, and construing all inferences in favor of plaintiff
·         the claim is still not plausible.
o    Ashcroft v. Iqbal
·         Settled Twombly and said it applies to all civil litigation, and it was not unique to anti trust cases.
o    Rule 12(a)
·         Must serve answer to complaint
o    Rule 12(b)(6)
·         Failure to state a claim upon which relief can be granted
§  because it fails Twombly and it does not plausibly allege right to relief or violation of law
o    Pleading special matters
·         Fraud
§  Rule 9(b) – have to plead with more particularity
§   mixed fraud and other allegation complaint,
·         have to meet twombly for all the other claims
·         For fraud
·         argue the circumstances constituting the fraud
o    Rule 8(d)
·         May plead alternative and inconsistent theories
o    Answer
·         Has to mirror each specific allegation
·         To the extent that a paragraph alleges facts some of which you admit and some you deny,
§  you have to specify which ones you admit and which ones you deny.
o    Rule 8(b)
·         What an answer has to look like
·         state its defenses to each claim in “short and plain terms” and “admit or deny” the opposing party’s allegations
·         Each denial must “fairly respond” to the substance of the allegation to which it is addressed.
·         a “general denial” is only permissible if a responding party “intends in good faith to deny all the allegations of a pleading”
·         the pleader “must either specifically deny designated allegations or generally deny all except those specifically admitted”
·         A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.
·         A good faith statement that a party “lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial”
·         Allegations other than those relating to the amount of damages is admitted if a responsive pleading is required and the allegation is not denied;
§  allegations not requiring a responsive pleading are deemed denied.
o    Zielinksi v. Philadelphia Piers Inc pg 459
·          court said
§  Could not deny that plaintiff was injured
§  didn’t deny properly,
·         when the paragraph has things you need to admit and deny
·         and you didn’t answer properly in an honest way
·          they rejected the denial.
o    Rule 8(c)
·         Affirmative defenses
§   even if what you say is true, I am entitled to judgment in my favor for other reasons
§  have to plead affirmative defenses or you waive them
o    Complaint and Answer FRCP 8(a)
·    Claim for Relief:  Must Contain:
a stated basis for jurisdiction
“a short plain statement of the claim showing you are entitled to relief”
·         Note:  This must meet the heightened pleading standard to survive a motion to dismiss (SEE Twombly)
a demand for relief
o    Defenses, Admissions, and Denials FRCP 8(b)
·   In responding to a pleading, a party must:
state in short of plain terms its defenses to each claim asserted against it; AND
admit or deny the allegations asserted against it by an opposing party
·   General Denial: 
A denial of everything in a particular paragraph of a complaint
·   Specific Denial:
If any part of a sentence or paragraph is true and worthy of admission the defendant must specifically deny that portion of the allegation and then may generally deny the rest.
·   Consequences of Ineffective Denials:  Zielinski v. Philadelphia Pier
All allegations not properly denied are deemed to be admitted.
Only offer general denials when you are certain that it applied to the entirety of the allegations to which it refers
·   Denials for Lack of Information:
A party may deny an allegation because it is “without knowledge and information sufficient to form a belief as to the truth of an averment.”
The effect of such a response is the same as a denial.
·   Affirmative Defenses: FRCP 8(c)
o    Art 3 of Constitution
o    UMW v. Gibbs pg 229
·         Pendant jurisdiction
§  Subject matter

n destroys diversity, it will not be permitted.
§  Additionally, under 1367(b), the following set of “claims by plaintiffs” do not qualify for supplemental jurisdiction in the context of a case where original jurisdiction is based solely on diversity jurisdiction:
·         Third Parties FRCP 14
·         Necessary Parties FRCP 19
·         Permissive Parties FRCP 20
·         Intervening Parties FRCP 24
·         28 U.S.C. § 1367(c): Discretion
§  The federal supplemental jurisdiction statute codifies the discretionary circumstances in which supplemental jurisdiction should be denied.  The court can only deny if one of the four exceptions below are met:
·         the claim raises a novel or complex issue of state law
·         the claim substantially predominates over the claim or claims over which the district court has original jurisdiction
·         This is not found by a simple numerical count of the claims
·         the district court has dismissed all claims over which it has original jurisdiction, or
·         in exception circumstances, there are other compelling reasons for declining jurisdiction 
·         Aggregation:  Applies to 1332 Diversity Situations
§  Note:  For diversity cases, the amount in controversy must be $75,000
§  Old Rule:  Zahn v. International Paper Co.
·         You cannot aggregate claims to meet the amount in controversy.  Every plaintiff must meet the amount in controversy for the claimant to stay in court.
§  New Rule:  Exxon Mobil Corp. v. Allapattah Services
·         So long as one claim satisfies the amount-in-controversy requirement, the district court has original jurisdiction over the claim (class-action suits). 
o    Temporary Restraining order TRO
·         Rule 65(b)
·         injunction until you can get a trial on its merits.
·         Rules authorize doing it on an ex parte basis.
·         Usually done when the act you're trying to enjoin is time sensitive.
o    Preliminary Injunction
·          order by court to maintain status quo,
·         but after notice and opportunity to be heard by the other side.
·         There has to be irreparable harm that could be caused unless there's an preliminary notice
§  4-prong test
·         Likelihood of success on merits at trial
·         Likelihood of irreparable harm
·         Inadequacy of remedy
·         Balance of hardships.
·         IN FL (Schrank court)
·         Another requirement