Civ Procedure Professor Marcus Spring 2013
Pleadings and Initial Motions
I. Evaluating the complaint when presented with a motion to dismiss Rule 12(b)(6) or motion for judgment on the pleadings Rule 12(c) {motion after answer}—these are identical type motions only difference is timing
A. What is the stated standard for a sufficient complaint? (Starting point to evaluate the pleading and subsequent motions against the pleading)
1. Rule 8(a) requires three components:
o 8(a)(1) – jurisdiction
o 8(a)(2) – “a short and plain statement of the claim showing that the pleader is entitled to relief”
o 8(a)(3) – demand for relief sought
o Concept of Legal Sufficiency: The court may ask the question, “If the plaintiff proved everything she has alleged here, would she win?” Or “does the law recognize a right to recover on the facts she has alleged?” (based on four corners of the complaint)
§ Does not require legal theory and a prime facie case does not have to be presented in the complaint that may have to be later proven at trial
o Concept of Factual Sufficiency: “How much detail must the plaintiff allege to support her claim?”
§ Idea is to lower the formal barrier preventing the case from entering the litigation stream
§ Form 11 – example of form pleading that is sufficient for a negligence complaint, note the bar is very low/relaxed as to the required amount of factual detail
§ See Twombly & Iqbal have augmented this standard
o Gillespie v Goodyear: The complaint contained only legal conclusions (ie: trespass, false imprisonment, etc. were all legal conclusions and no facts regarding the event were in the complaint)
§ No bright line rule as to what sufficient facts are versus conclusions, however best to look to the substantive law to determine the elements of the claim and present facts that support the claim
§ A demurrer {State equivalent of 12(b)(6)} was granted and plaintiff was give leave to amend which is typical of motion to dismiss actions
o Swierkiewercz v Sorema: A prime facie case is an evidentiary standard not a pleading requirement
§ Employment discrimination case does not have a heightened pleading requirement {limited exceptions to requirements beyond 8(a)(2); cf. Rule 9(b) or PSLRA}
§ Must be enough to give notice
§ Liberal discovery and MSJ motions will define disputed facts and dispose of unmeritorious claims
§ Rule 8(d)(1) – no technical form of pleading is required
o Bell Atlantic v Twombly: Pleadings “require only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible their complaint must be dismissed.”
§ This is not a heightened pleading requirement as it would appear
§ Must create more than a suspicion of a legally cognizable right of action (parallel conduct alone is insufficient to support inference of conspiracy or agreement to be non-competitive)
§ Seemed to overturn Conley v. Gibson which held that the plaintiff only had to give fair notice of what the plaintiff’s claim is and the grounds upon which it rests, however Court distinguishes it be saying that it is not a pleading standard
o Ashcroft v. Iqbal: Affirming Twombly and confirming that the holding applies to all types of case (not just antitrust); here the allegation of discriminatory conduct of the AG and FBI may have been possible, considering the state of the nation around 9/11 attacks, their activity does not reach a level of plausibility
§ Court does not have to accept legal conclusions
§ Thread bare recitals of elements of a claim do not suffice
§ Only a plausible claim for relief will survive motion to dismiss
§ J. Kennedy: the court is allowed to “draw on its judicial experience and common sense”
o The central critique of these two cases is that these decisions make it too difficult for plaintiffs to satisfy pleading requirements and thereby gain access to discovery to prove their cases
2. Rule 9(b) – heightened pleading requirement
o Applies to case of fraud or mistake where a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions as to state of mind may be alleged generally
o What are the particularity requirements?
§ What are the supposed false or inadequate statements?
§ When were they made?
§ In what way were they false or inadequate?
o This heightened requirement exists to:
§ Provide notice due to more complicated transactions and numerous parties
§ Prevent injury to reputation
§ Limiting in terrorem lawsuits thus forcing settlements to prevent disruption of business and mitigate costs
3. PSLRA Standard
o Supersedes Rule 9(b) in security fraud complaints particularly sentence 2 of Rule 9(b)
o Plaintiff must state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind (scienter)
o Tellabs v. Makor Issues & Rights, Ltd.: Holding that an inference of scienter must be more than merely plausible or reasonable—it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent
o In other words, inference must be equally strong as other inferences
o Court uses a comparative analysis of all the facts in the pleadings viewed in their entirety to assess scienter comparing the alleged inference against competing inferences rationally drawn from the facts alleged
4. Rule 8(e) – Pleadings must be construed so as to do justice
o Interpreting the pleadings in favor of the pleader in interest in fairness
B. What material can be considered by the judge to evaluate the motion?
1. When making a Rule 12(b)(6) or Rule 12(c) motion the party admits the “well-pleaded allegations” of the complaint for the purposes of the motion
2. Rule 10(c) – a copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes
o Can reference this if it is attached to the original complaint
3. Rule 12(d) – If the motion offers material outside the complaint then the court must be treated as a MSJ under Rule 56 (this is unfavorable to the defendant because it give the other party the opportunity to respond, so what is the alternative?)
o Doctrine of incorporation by reference—the party may assert that the plaintiff refers extensively to the document or the document forms the basis for the complaint and therefore can be referenced without converting to MSJ
· e.g. an claim about insurance coverage is based on the content of the plan, or stock fraud based on the SEC filings
4. Matters of judicial notice can be referenced in the motion (F.Evid.R. 201)
o The court may judicially notice a fact that is not subject to r
she presents a document to the court that the assertions are still true
B. What does Rule 11(b) certify?
1. In aggregate, they are aimed at ensuring reasonable bases for the version of the facts and law asserted
2. Rule 11(b)(1) – Certifies that the document was not presented for an improper purpose like delay or harassment
3. Rule 11(b)(2) – Certifies that the legal contentions are warranted by law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law
o Attorney does not have to tell the judge that you are asking to do something differently, however being forthcoming in the pleading may be protective against potential Rule 11 violation
o Could be misleading if implied or asserting that your argument is based on precedent and really it is something new
4. Rule 11(b)(3) – Certifies that there is evidentiary support or a reasonable expectation of support after further investigation or discovery
o Aimed at parties asserting the claim and its language is protective of party attempting to prove its assertion
o Based on assertions of fact not assertions of law
5. Rule 11(b)(4) – Certifies that similar language for denials of factual claims
o Aimed at parties defending against a claim and can be asserted on grounds of lack of information
C. Procedure Protections from Sanctions – Rule 11(c)
1. Before asking for Rule 11 sanctions, the party must draft the complaint and serve the opposing counsel {Rule 11(c)(2)}
2. A safe-harbor provision give the opposing counsel 21 days in which to correct the mistake prior to the party filing it with the court
3. If opposing counsel persists in advocating a particular point that is clearly refuted in the evidence that party may be (discretionary) sanctioned by the court
4. The court may independently order an attorney to show cause why a specific conduct (as described in the order) did not violate Rule 11(b) {no safe harbor if court initiated}and court may sanction if show cause is inadequate {Rule 11(c)(3)}
D. What type of sanctions can be levied?
1. Purpose of sanctions is not to punish wrongful behavior, but to deter such behavior in the future (NOT A COMPENSATORY MEASURE)
{Rule 11(c)(4)}
2. Most commonly courts award attorney fees and other expenses directly resulting from the violation
3. Can order nonmonetary sanctions like reprimand, ordering continuing education, ordering the attorney to circulate the judicial opinion to law firms and other judges
4. Rule 11(c)(5) restricts monetary sanctions to attorneys since pro se parties are not expected to be accountable to errors in the law
