Brown_CivPro1_Fall_2013.
I. The Complaint
A. Drafting the Complaint
Rule 8
1. Rule 8 provides that “[a] pleading that states a claim for relief must contain:
– a statement of jurisdiction (Rule 8(a)(1))
– a statement “of the claim showing the pleader is entitled to relief” (Rule 8(a)(2)) – this one is very important!
– a demand for relief (Rule 8(a)(3))
2. The purpose of Rule 8 is to give the defendant sufficient notice of the claim against him and the grounds for it.
– Rule from Swierkiewicz v. Sorema N.A.
– Accordingly, for formal sufficiency, the plaintiff did not need to plead all of the elements of discrimination in that case.
– Development of the facts is for discovery!
3. Ashcroft v. Iqbal 2 Step
Step 1:
Does the complaint contain only legal conclusions OR are there facts in there too?
o If complaint only contains legal conclusions, it is a loser.
§ If it has legal conclusions plus facts, assume the facts are true and ignore the legal conclusions. Only the facts go through step 2!
Step 2:
Do the facts show an entitlement to relief?
o If we are talking about direct facts, yes.
o If the facts require that an inference be made, that inference must be plausible.
– To understand what plausibility means, move to Twombly plausibility standard.
4. Bell Atlantic v. Twombly
Plausible inferences, i.e., to the extent that the allegations require the court to draw an inference as to the grounds for the claim, the inference must be plausible.
Rule 9
1. Contains a “heightened pleading” standard for cases involving fraud or mistake (Rule 9(b)) or special damages (Rule 9(g))
2. Supersedes Rule 8 for those types of lawsuits
3. Complaint generally must include the six “why’s”—who, what, when, where, why, how.
4. There are federal statutes that also contain heightened pleading standards.
B. Amending the Pleadings
Rule 15
1. How many times can a party amend under Rule 15(a)?
Unlimited under the rule!
BUT there may be hurdles to overcome.
2. 3 ways of amending:
i. 15(a)(1) – “freebie” provision
– 15(a)(1)(A) – 21 days after serving the pleading or
– 15(a)(1)(B) – if the pleading gets a response, 21 days after the responsive pleading or Rule 12 motion, whichever is earlier
ii. Amendments with written consent of the other party.
iii. Amendments permitted by the court
– “The court should freely give leave when justice so requires.”
– Allow amendment unless one of Foman v. Davis factors applies:
o Undue delay
o Bad faith or dilatory motive
o Repeated failure to cure by prior amendments
o Undue prejudice
o Futility
3. Does law creating SOL allow for relation back? 15(c)(1)(A)
4. What if the statute of limitations ran out?
i. 15(c)(1)(B)
Same conduct, transaction, occurrence test
Key: need same core facts
Old facts, new theory – OK
Old facts made more precise or amplified – OK
Entirely new or different event – not OK
ii. Rule 15(c)(1)(C) = NEW PARTY RULE!
3 elements:
1) Same conduct/transaction/occurrence; and
2) New party had notice of the claim with
12(b)(2)-(5) defenses must be in the first response to the complaint!
Rule 8(c) affirmative defenses are also waivable
In analyzing whether to recognize a new affirmative defense, courts will look to whether the defense avoids the cause of action (like comparative negligence) or negates the cause of action (e.g., demonstrates that an essential element is missing), and whether the defendant bears the burden of proof at trial.
II. Policing Materials Submitted to the Court:
Rule 11
1. What is the function of Rule 11?
i. Aims at ensuring good faith pleadings, motions, papers
ii. “Stop and think” before filing rule
iii. Stick versus a carrot – sanctions if you violate
iv. 11(b) – a lawyer conducted an “inquiry reasonable under the circumstances”
v. The goal of rule 11 is “deterrence”. There should be a standard to prevent frivolous lawsuits.
2. When is rule 11 triggered?
i. 11(a) requires a SIGNED document
ii. BUT – 11(d) carves out discovery – special rules for that
3. 11(c)(2) “safe harbor” provision
i. Alleged Rule 11 violator gets 21 days to correct its paper!
ii. Serve first – file later!
Rule 11 motions must be filed all by themselves.
But DO NOT file your motion with the court when you serve it!
