A. THE COMPLAINT:
1. CODE Pleading: Some states still require code pleading and require a “statement of facts” constituting a “cause of action”.
· Gillespie v. Goodyear:N.C. court decided no legal action could be taken from the facts given. Need more than legal conclusions “i.e. trespass” for D to respond and courts to declare law.
2. Pleading under the Federal Rules “NOTICE Pleading”:
FRCP 8: General Rules of Pleading:
(a) Claim for relief: a pleading that states a claim for relief must contain:
(1) short and plaint statement of the grounds for the court’s jurisdiction, unless court already has jurisdiction and claim needs no new jurisdictional support;
(2) short and plain statement showing the plaintiff is entitled to relief;
(3) a demand for the relief the pleader seeks, may include relief in the alternative or different types of relief.
FRCP 12(b)(6): Failure to state a claim upon which relief can be granted.
Dioguardi v. Durning (pg 559): importer of medicinal tonics from Italy wrote complaint pro se) shows that the short and plain statement is not a difficult standard to meet. Federal scheme abolishes code pleading in favor of notice pleading and abolishes requirement that a cause of action be stated. BLR: a complaint must state just enough facts to sufficiently notify the opposing party of the claims against him so as to allow him to begin preparing a defense. (just shows that you don’t have to show specific facts just enough to state a cause of action).
Swierkiewicz v. Sorema N.A: P’s employment discrimination complaint was dismissed for failure to allege facts sufficient to state a prima facie case. Discrimination complaints need not state a prima facie case. BLR: a prima facie case is an evidentiary standard for trial, not a rule of pleading.
Bell Atlantic v. Twombly (pg 568): P. files class action suit against D alleging D illegally eliminated competition among themselves. DC dismissed on 12(b)(6). C of A reversed; SC took case to address proper standard of pleading an antitrust conspiracy through parallel conduct. Parallel conduct is not, alone, illegal if it shows the company was doing so in their own best interest, therefore must show that there was agreement between companies. Standard = enough evidence (taken as true) to suggest it was plausible that there was supporting evidence. Therefore when allegations of parallel conduct are made, must be raised in a context that suggests preceding agreement (THIS HEIGHTENS THE PLEADING REQUIREMENT in these cases). Dissenting: “plausibility requirement is inconsistent with Rule 8 and precedent. Court differentiates their ruling with that of Swierkiewicz. Latter denied heightened plea requirements of “specific facts’ rather than just the facts they consider necessary in Twombly to make a claim of relief.
Garcia v. Hilton Hotels International (pg 579): hotel employee is fired for bringing women into hotel for prostitution, but he claims the charge is false and slanderous. Under the Notice pleading system, general allegations of liability deemed sufficient to overcome specific defects in the pleading. BLR: a complaint sufficiently pleads a right to relief when it states enough fact to reasonably assume that the essential elements of the claim can be proven at trial.
3. Burden of Pleading & Burden of Production:
o “Ordinary Default Rule”-party seeking relief and thus the one who must raise the issue in its pleading must also carry the burden of proof. Exception may exist when the defending party is one with vastly superior means to determine the issue.
4. Pleading Special Matters: (requiring more than Rule 8(a)):
FRCP 9: (b) Fraud or Mistake; Conditions of Mind: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. (when claiming fraud you have to be more specific)
Denny v. Carey (pg 587): P files class action against D alleging violation of federal and state securities laws. D. moved to dismiss pursuant to FDRC 12(b)(6) on the ground that plaintiff’s allegations fail to state the circumstances constituting the alleged fraud with sufficient particularity as required by FDRC 9(b).
o -US, DC decides requirement of 9 is met when sufficient identification of circumstances constituting fraud so that D can prepare adequate answer. (More info is inappropriate in a case where matters alleged are peculiarly within the knowledge of D’s)
o Criticism of 9 = fails to provide a “uniform approach for those cases that clearly fall within its ambit, i.e. Denny v. Barber, very similar case in which court ruled more particularity was needed)
o Congress dissatisfied with application of Rule 9(b) in securities fraud cases and enacted the Private Securities Litigation Reform Act (PSLRA of 1995). This resulted in super high pleading standard and left ambiguous what a plaintiff must allege to survive a motion to dismiss, resulting in diverged pleading standards between circuits.
Tellabs v. Maker Issues and Rights (pg 579): PSLRA –requires that P’s must state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. (Congress left open the meaning of a strong inference, and Courts of appeals have divided on meaning) -SC decides courts must engage in a (3 step) comparative evaluation. To qualify as strong the inference of scienter must be more than plausible; it must be at least as compelling as any opposing inference or non-fraudulent intent. (Don’t NEED to know)
5. Alternative & Inconsistent Allegations:
FRCP 8(d): Pleading to be Concise & Direct; Alternative Statements; Inconsistency:
(1) IN GENERAL: Each allegation must be simple, concise, & direct. No technical form required.
(2) ALTERNATIVE STATEMENT OF A CLAIM OR DEFENSE: A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.
(3) INCONSISTENT CLAIMS OR DEFENSES: A party may state as many separate claims or defenses as it has, regardless of consistency.
FRCP 10(b) Paragraphs; Separate Statements: each claim or defense should be separately stated in paragraphs “as far as practicable” so that a statement includes no more than a 1 set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. . If doing so would promote clarity, each claim founded on a separate transaction or occurrence- and each defense other than a denial- must be stated in a separate count or defense.
6. Pleading Damages:
FRCP 9(g): Special Damages: claims for specific damages must be specifically stated.
Ziervogel v. Royal Packing Co. (pg 595): woman injured in car accident tries to bring evidence at trial of injuries that were not mentioned in her complaint before trial. Traditionally lenient notice-pleading jurisdiction forbids evidence at trial of those “special damages” not mentioned in the pleadings. BLR: a personal injury “which is not the necessary or inevitable result of an injury” alleged in the petition is a “special damages” which must be specifically pleaded before trial.
7. The Prayer for Relief:
FRCP 54 Judgments; Costs (c): Demand for Judgment; Relief to be Granted: a default judgment must not differ in kind from or exceed in the amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party hasn’t demanded that relief in its pleadings.
Bail v. Cunningham Brothers, Inc. (pg 595): a jury awarded judgment for P in an amount higher than he asked for in his prayer for relief and D requested that the amount be remitted to the lesser one that is in the pleadings. It pays to settle! Jury damage award was allowed to be more generous to victim than his own prayer for relief. BLR: a claimant is entitled to the amount of relief rendered at trial even if that amount is greater than what was requested in the pleadings.
FRCP 11 (b): Representations to the Court: By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
B. RESPONDING TO THE COMPLAINT:
1. Time Permitted for a Response:
FRCP 12 (Defenses & Objections) (a) gives most D’s 20 days from the service of the summons and complaint to respond either by motion pursuant to Rule 12 OR by answering the complaint. D’s counsel routinely requests and P’s counsel routinely consents to, an extension of the D’ time to answer as a matter of courtesy and Rule 6(b) authorizes the court to grant these very common extensions. If a party has timely waived service under Rule 4(d), (Rule that is used to request a waiver of a summons to save costs) within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside of U.S.
2. Motions to Dismiss:
Rule 12(b): How to Present Defenses: each defense to a claim for relief in any pleading must be asserted in the responsive pleading if required, BUT parties may assert these defenses by motion:
(1) lack of subject matter jurisdiction (motion to dismiss, the court doesn’t have jurisdiction)
(2) lack of personal jurisdiction (court can’t control action of the person or make them appear)
(3) improper venue (wrong place to have the case)
(4) insufficient process (did you include all of the info needed to give D notice and let them respond effectively, Content)
(5) insufficiency of the service of process (not in content, but did you serve D in right way?)
(6) failure to state a claim upon which relief can be granted***12(b)(6)***
*functions: notice & screening out claims that shouldn’t go forward in expensive discovery
(7) failure to join a party under Rule 19(if there is a party who had to be part of the complaint and you didn’t include them, D could file saying you didn’t join an essential party)
If granted-dismiss complaint with prejudice-dismisses case totally
If granted-without prejudice-leave to amend if granted (statute of limitations is over) OR plaintiff files new complaint (if statute of limitations has not run out)
FRCP 12 (c): Motion for Judgment on the pleadings:After the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings.
FRCP 12 (d): Result of Presenting Matters Outside the Pleadings:if, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the courts, the motion must be treated as one for Summary Judgment under Rule 56-All parties must be given reasonable opportunity to present all material pertinent to motion
FRCP 12 (e): Motion For a More Definite Statement: A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. Motion must be made before filing a responsive pleading & must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
FRCP 12(F): Motion to Strike:the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter: (1) on its own; OR (2) on motion by a party either before responding to the pleading, or if a response is not allowed, within 20 days after being served with the pleading.
American Nurses Association v. Illinois (pg 603): District judge dismisses class action suit of working charging Illinois with sex discrimination based on facts in the pleadings which fail to state a legal claim and P appeals. (The “If you write the same letter on every answer of a multiple choice test, at least one is bound to be correct” theory of pleadings) BLR: A multiple charge complaint is neither dismissible nor invalid merely b/c along with stated facts which do state a claim there are a number of stated facts which do not. (Example of 12(b)(6) motion)
3. Other Motions Attacking the Pleadings:
4. Answering the Complaint: Burden shifts to D to answer in good faith; higher burden of narrowing the issues of what to deny, whereas P doesn’t have to narrow the issues
FRCP 8: D’s are required to admit, deny or plead insufficient information to each allegation
(b) Defenses: ADMISSIONS AND DENIALS:
FRCP 8(b)(6): provides that all averments to which D does not specifically respond are deemed admitted. (P usually includes an “all-inclusive paragraph” in answers denying any averment of complaint unless admitted.
*Rule 8 also permits D to deny the entire complaint. Federal Rules discourage this and thus note this must be made in good faith and only in situations in which everything can be denied legitimately.
Zielinski v. Philadelphia Pier (pg 612): A man who was hit by a forklift claims that it was owned by large company which denies owning it at the time of the accident. Abuse of general denial backfires when the court equates it with a presumed general admittance. BLR: a general denial will not be valid if any of the allegations being denied have been admitted by both parties as true. *D cannot profit from its own misleading responses to discovery-you will be estopped from a statute of limitations defense in such as case.
en to shareholders or members in the manner that the court orders.
Surrowitz v. Hilton Hotels Corp: (pg 636): P verified and filed a detailed complaint charging fraud but D sought to dismiss it b/c P didn’t understand complex facts & language in her own pleadings. Justice Triumphs over procedural exactitude-P is allowed to proceed w/ a meritorious claim despite procedural flaws in pleadings. BLR-technical violations of the Federal Procedural verification requirement do not alone warrant dismissal of an otherwise meritorious claim.
Hadges v. Yonkers Racing Corp: (pg 642): an attorney & his client were sanctioned for submitting factual misrepresentations to a DC. Rule 11 establishes strict guidelines for sanctioning parties & attorneys for submitting misrepresentations to the court. BLR: Rule 11 sanctions require compliance w/21 day safe harbor & an attorney may rely on objectively reasonable representations of a client in avoiding rule 11 sanctions for submitting false statements to court.
JOINDER OF CLAIMS AND PARTIES:
A. Joinder of Claims:
FRCP 18: Joinder of Claims:
(a) In General: A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternative claims, as many claims as the party has against an opposing party.
(b) Joinder of Contingent Claims: A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.
M.K. v. Tenet (pg 655) (CIA Employment Discrimination): after P’s amended their complaint to add new claims, the D’s filed a motion to sever. P’s may join in one action as many claims as they have against a D. BLR: FRCP 18 removes all obstacles and provides for unrestricted joinder of legal and equitable claims against an opposing party.
B. Addition of Claims by Defendant:
1. Counterclaims: (claims asserted against a party who has asserted a claim against you, i.e. the plaintiff or 3rd party plaintiff)
-Co-parties file cross claims; adverse parties file counterclaims.
FRCP 13: Counterclaim and Cross Claim:
(a) Compulsory Counterclaim:
(1) In General:A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: (must be asserted or will be waived under defense preclusion, “RES JUDICATA”).
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
(2) Exceptions:The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pending action; or
(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
(b) Permissive Counterclaims: A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. (can be completely unrelated to original suit, but court must have subject matter jurisdiction over it.)
(c) Relief Sought in a Counterclaim: A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
(e) Counterclaim Maturing or Acquired After Pleading: The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.
(f) Omitted Counterclaim: The court may permit a party to amend a pleading to add a counterclaim if it was omitted through oversight, inadvertence, or excusable neglect or if justice so requires.
United States v. Heyward Robinson (pg 658): P brought a claim for a subcontract with Heyward (D), who counterclaimed and P counterclaimed back. D disputes the compulsory nature of the counterclaims. Counterclaims need only a logical relationship to original claim to be considered compulsory. BLR: a counterclaim is compulsory if it has some logical relationship to the opposing party’s claim.
FRCP 13(g) Crossclaim Against a Coparty: A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. (Ex: A sues B, B cross-claims against C for causing the action that A is suing B for (can be for all or part of the claim against them.) C can answer and file a counterclaim against B)).
FRCP 13(h) Joining Additional Parties: Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
Lasa Per L’Industria Del Marmo Societa Per Azioni v. Alexander (pg 668): several claims arose out of K’s to construct the Memphis city hall including crossclaims between the contractor Southern Buildings(D), and one of the subcontractor’s , Alexander (D). Cross claims logically related to the original suit may be brought by co-parties. BLR: a cross claim is valid as long as it bears some logical relationship with the transaction or occurrence that is the subject matter of the original action or counterclaim.