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Civil Procedure II
University of California, Hastings School of Law
Wingate, C. Keith

· Goal of common law pleading – reduce dispute to single issue of law or fact
· In fact/code pleading – Plaintiff required to plead ultimate facts, not evidentiary facts or conclusions of law, hard to distinguish
o Notice pleading reform because under code pleading they had to state facts to constitute cause of action, it was to avoid needless battles of forms of statement, whether a particular statement was a statement of evidentiary fact, conclusion of law etc
o Have to demonstrate which show that ALL the elements of a cause of action or a demur will be sustain
· 8A2 – A pleading that states a claim for relief must contain:
§ Short and plain statement of courts reason for jurisdiction, unless court already has it
§ Short and plain statement of claim showing pleader is entitled to relief
§ Demand for judgment pleader seeks
· Allow P to proceed to discovery unless it appears beyond doubt that the P can prove no set of facts in support of his claim which would entitle him to relief (Conley v Gibson)


Swierkiewicz v Sorema NA


Federal courts don’t have heightened pleading standard for employment discrimination;
Incongruous to plead facts in complaint that would not be needed to establish at trial in order to prevail

· May treat conclusory allegations as insufficient to state a claim
· Well-pleaded allegations are accepted as true
· Do not need to state the legal theories for the claim, can’t state evidence – just the facts
· Plaintiff may allege facts based on inconsistent legal theories but Rule 11 may limit this

· 8E – At the pleading stage a party may plead inconsistent facts if there is no way for them to know which version is true, regardless of consistency
· 7A – Reply ONLY when fed court in the exercise of its discretion orders one, P doesn’t have to respond to allegations in affirmative defenses (not true in a few jurisdictions where P must respond)

· Pre-answer motions suspend the time for answering the complaint until court addresses objections raised in the motion
· Rule 12B6 – Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert motion failure to state a claim upon which relief can be granted (same as general demurrer in fact/code pleading states)

Bell Atlantic Corp v Twombly


Had to show plausible claim, had to be seemingly valid, wasn’t heightened standard but had to show more facts, facts had to show plausbility not conceivability

o A complaint should not be dismissed if plaintiff at trial could make out a case for relief based on complaint allegations. Motion for a more definite statement is always an option.
o 12G -When D files a 12 motion, he must include in it all defenses and objections available at that time or they will be waived
o 12H – If a motion is not used in the first pre-answer motion, then it is waived –
· objections to the complaint’s form – insufficiency of process or service,
· venue,
· Process and service
· or personal jurisdiction
o 12 motions that are NEVER waived –
· lack of subject matter jurisdiction,
· failure to join a necessary party,
· 12B6
o 12C – motion for judgment on the pleadings

· 9G – when items of special damage (not necessary or inevitable as the result of a collision) are claimed they shall be specifically stated

Ziervogel v Royal Packing Co

Rule 9G says that when items of special damage (not necessary or inevitable as the result of a collision) are claimed they shall be specifically stated

· 9B – In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally
· Because fraud is so easily charged but so damaging to one’s reputation, Rule 9b should be strictly enforced

· Denny v Carey


Rule 9(b) says that when asserting claim of fraud/mistake, P has to set forth circumstances constituting fraud with particularity

Any stricter application of the rule is inappropriate in a case where the matters are peculiarly in the knowledge of the Ds

Tellabs Inc v Makor Issues and
Rights LTD

– 8C
o In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including statute of limitations, or the defense is waived

Ingraham v US

TX statutory limit on medical malpractice damages is an affirmative defense which must have been pleaded timely but wasn’t so defense has been waived

· A defense that relies on new matter that the defendant prove to avoid plaintiff’s claim and raise legal grounds of why defendant should not be held liable
· Affirmative defenses MUST be raised in the answer and cannot be raised at trial (but may be added by amendment)
§ Taylor court refuses to treat the CA statutory limit on medical malpractice damages as an affirmative defense under the meaning of Rule 8 (c ), says that CA statute does not completely bar recover noneconomic damages and so it is not similar to affirmative defenses listed in Rule 8 (c ) and therefore different
§ notice to P is required to prevent prejudice, then statute of limitations should be treated as affirmative defense, if not notice is required then it should not be treated as affirmative defense under 8 (c )

· Amended and supplemental pleadings are allowed in federal courts but not code pleading states
· Issues not raised by pleadings are tried by consent of the party and shall be treated as they had been raised in the pleading
· 15A – A party may amend its pleading once as a matter of course:
· before being served with a responsive pleading (a motion is not considered a pleading); or
· within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.
o In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.