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Civil Procedure II
University of California, Hastings School of Law
Hazard, Geoffrey Cornell



Adversary system = passive judge; interrogative system = judge directs & asks questions
Adversary system distinct b/c parties investigate the facts, frame legal issues, and present evidence
It’s part of our history of political liberty b/c passive judiciary & right to lawyer were reaction to England
Americans use courts to resolve many social probs which are not for courts in other countries


Sufficiency of Complaint

Rule 8(a)(2)

Pleading must have a short & plain statement of the claim showing that pleader is entitled to relief

Bell Atlantic Corp v. Twombly

Case alleging conspiracy to end competition in violation of Sherman Act. Pleading alleged facts consistent with conspiracy, but plead no facts of the actual conspiracy. So although the pleading alleged a conspiracy, that was a legal conclusion since not supported by facts. (All the facts including in pleading could have been explained by self-preservation behavior)
2 tenets:

Altho court accepts as true all allegations in complaint – this doesn’t apply to legal conclusions
Only complaint whose well-pleaded facts state a plausible claim for relief survives moton to dism

What is plausible claim for relief? Context-specific inquiry using common sense.
Where facts do not permit court to infer more than the mere possibility of misconduct, then pleader has only alleged and not shown that entitled to relief
What is mere possibility? Where facts alleged are merely consistent with misconduct, not good enough. Facts suggesting misconduct must be alleged.

In pleadings, think in terms of the jury instructions

Iqbol: Twombly applies to all civil cases, including those alleging discrimination
Code Pleading & Notice Pleading

Some states use code pleading which has much more formal requirements for pleadings and must state facts leading to cause of action, but even those states are moving more towards notice pleading standards, and Twombly & Iqbol push notice pleadings into more formal territory. Code pleadings more favorable to defendants

Allocating & Adjusting Burden of Pleading

Who has burden of proving elements in a case (prima facie case = P; defense = D)? Consider:

Statute/contract: Broad words (prima facie) followed by exceptions (defense
Proving negatives discouraged (but can flip!) & party for whom it’s essential must prove (no help there)
Policy: Can discourage/encourage certain actions with giving parties certain elements

Negligence can be influenced by allowing defense of contributory negligence
Defamation can be discouraged by burdening plaintiff with showing untruth

Fairness: where evidence relating to an element lies more in control of one party – like payment, license.

But tort cases show great exception – P must prove D’s wrongdoing

Probability: Bill collector P very unlikely to sue over paid bill – so burden of proof of payment goes to D

Party who benefits from the “norm” gets the burden of showing it

**Allocating elements does not have to be done at any stage of litigation, but helps to frame trial

Gomez v. Toledo

Officer fired after being whistleblower, sues, police claims fired officer must allege bad faith since police have qualified immunity.

Qualified immunity has 2 components: objectively rzbl belief that acts were lawful (objective) OR official’s belief that actions were right (subjective – the good faith part of it)

Qualified immunity & good/bad faith are affirmative defense.

Too difficult to allege a state of mind. The knowledge of good/bad faith lies with D, so D has the burden of pleading & proving it

D must plead the facts that will give rise to the affirmative defense/qualified immunity/good faith in order to use at trial

*note: now the standard for sovereign immunity is completely subjective, but this rule still holds

Pleading with Particularity; Rule 9(b)

Mistake, Fraud, Conditions of a State of Mind: Must state circumstances of fraud or mistake with particularity. Malice, intent, knowledge & other conditions of mind may be alleged generally

Note: there are other things in rule 9 which must be pleaded with particularity

Can’t just describe something and add “fraudulently” as pleading

Must allege

1)content of the false statement and
2)falsity of the statement, and
3) that statement was one of material fact, and not opinion or prophecy not to be rel

s raised by D also do “arise under”
Well-pleaded complaint rule does not apply to Sup Ct appellate jdxn, they get to hear cases appealed up from state court whenever a question of federal law is dispositive, regardless who brung it
Ask self: will P have to prove anything about fed law to establish complaint? Is P relying directly on federal law as the source of a substantive right to enforce?

Note: this is regarding lower courts and an interpretation of the jdxn Cong has given federal circuit courts, not an interpretation of federal jdxn under Article III

Merrell Dow Pharmaceuticals Inc. v. Thomposon (violation of fed law by D)

Mere violation of some federal law, where Cong did not intend to create a private federal cause of action under that law, does not create federal question jurisdiction
Kansas City & Title: similar situation but it was an important federal law violation which questioned constitutionality of that law. Court ruled it had jurisdiction.

If federal question appears in well-pleaded complaint and passes importance threshold à JDXN

Grable & Sons Metal Products Inc v. Darue Engineering (interpretation of fed law)

P sued in state court claiming D’s prop title invalid b/c IRS did not notice before seizing. Moved to fed court, fed jdxn upheld.
Federal-questions jdxn lays over some state claims that implicate important federal issues.
Or, where the state claim depends on interpretation of a federal law
Look for: pure issue of law, substantial issue, or a government action that triggers the claim

Note: Kansas & Grable are similar, but limited in scope

Diversity Jurisdiction § 1332

Get diversity jdxn by:

Claim by citizen of one state against citizen of another

There needs to be an American in the mix, based on the statute giving jdxn (circles)

Claim by citizen of a state and citizen of a foreign state

Need complete diversity: no party on one side can be citizen of same