Civil Procedure II Outline

I. The Claim

1) The complaint

a) What every complaint must include: (Rule 8(a))
i) jurisdictional statement
ii) statement of what relief P is seeking
iii) short, plain statement of the facts
(1) relationship btwn parties
(2) wrongful conduct
(3) dates
(4) injury sustained

b) What to consider/how to frame every complaint
i) Must frame complaint around jury instructions, the elements of the claim or defense are
outline in instructions jury ultimately receives; this is what makes/breaks the pleadings
ii) What level of facts must be alleged? Depends on relationship between the grievance (C.O.A.) and elements necessary to prove it at trial.
(1) Parties will argue that opponent lacks evidence to establish an essential element of claim/defense
(a) will move for SJ before trial and directed verdict during trial
(i) Summary Judgment:
1. immediate judgment on the merits of the case
2. prior to trial
3. argue that opponent has had opportunity, unable to prove element of claim/defense, so trial is unnecessary.
4. This is the pivotal point in modern litigation.
(ii) Directed Verdict:
1. Judgment on the merits that party has either not presented sufficient evidence
or that reasonable jury could not rule for opponent
2. Made during trial

c) Bell Atlantic v. Twombly
i) Rejected Notice pleading & heightened the pleading requirement in federal courts
(1) Sufficient Facts Requirement– The pleading must allege enough fact to rise beyond the level of just speculation/possibility to instead show that it is “plausible” that P is entitled to relief. (standard goes from “conceivable” toàplausible”)
ii) don’t have to plead facts which alone prove the case, but enough to show that after reasonable discovery, the totality of the necessary facts will be revealed to satisfy the elements of the offense.
iii) F/H: P’s filed anti-trust claim under Sherman Act, alleging conscious parallelism by phone companies. Complaint didn’t contain hard facts (no dates, specific allegations at all), just legal conclusions (“they did it”). Court grants D’s 12(b)(6) motion.
iv) Bottom line: Want to prevent parties from proceeding to expensive discovery unless they allege sufficient facts that show discovery would be worthwhile.

d) Ashcroft v. Icqbal
i) Twombly’s Coverage–Twombly’s “plausibility” standard applies in every case not just anti-trust
(1) in any federal claim, only a complaint that contains well plead facts that state plausible claim for relief survive a12(b)(6) motion.
ii) Idea that the court must accept all allegations in the complaint as true does NOT apply to legal conclusions in the complaint (Ashcroft was personally responsible)
iii) F/H: P was muslim claimed that U.S violated civil rights, sued Ashcroft and Robert Mueller, statute required that he show their personal involvement in discrimination, respondeat superior not sufficient. Court grants 12(b)(6) motion to dismiss because no hard facts alleged against D’s, only legal conclusions.

e) “Notice Pleading”—Rule before Bell Atlantic, claim only had to include short, plain, statement of facts putting D on notice of what relief π was seeking to satisfy 8 (a). (Conley v. Gibson)
i) incredibly low pleading standard—judge could only dismiss if it was doubtful from complaint that π could prove any set of facts that would entitle him to relief.

2) Modern discovery and $ control attempts through pleading requirements
i) Twombly and Icqbal are judicial reaction to the outrageous cost of discovery. Wanted to limit potential abuse with heightened standards.
ii) Problem w/ modern discovery is that in suits against organizations, there is often a complex bureaucracy that has to be cracked to get info.
(1) Problem is not the mass of material (in document discovery) but the levels of the organization—some material may be privileged and other not.
iii) Cost shifting—some courts have used this to limit discovery cost—American rule is that each side pays for its own discovery.
(1) Zublocki: Cost shifting approach in massive discovery case, allocated burden partially to requesting party.
(2) “Traunched” Discovery: Judge orders discovery in blocks, if more appropriate then orders more
(a) ex: orders production of emails from A to B only, if these reveals anything, orders additional discovery.
iv) GH Practical Result of Twombly & Icqbal: Claims that involve high levels of proof are going to lead to discovery wars, this is why have to be careful in how you shape the pleadings, know what you are going to have find through discovery; is it possible? do you have a source? is it economically feasible?

3) Allocation of the Burdens of Pleading

a) General: P is not required to allege every element necessary to prove his claim at the pleading stage, but must plead necessary elements to establish prima face case (think of a K case, π doesn’t need to prove/disprove everything in the restatement of contracts to win). Every C.O.A concerns a multitude of elements, but the burden of proving/disproving these elements is allocated between π in his complaint and ∆ in the form of affirmative defense.
i) Important because whoever has the burden of pleading also has burden of production and persuasion.
(1) Burden of production: must put evidence in the record supporting all essential elements of the claim to allow the finder of fact to find in their favor.
(2) Burden of persuasion: evidence must establish the standard that the jury/finder of fact must reach to rule in his favor ( i.e. meet preponderance of the evidence standard)
ii) allocation can be determined by: statute, contract, or the court
iii) Relevant factors that court may use to assign:
(1) policy
(2) fairness: may be more fair to assign to party with control over necessary facts
(3) probability: what is the likelihood that that the claimed fact actually occurred? court may assign element to party who is claiming departure from the norm

b) Gomez v. Toledo
i) USSC looks to statute under which claim is made, infers that burden of pleading “good faith” is allocated to D. Looks to–
(1) Text/legislative history of statute: statute only requires π to prove that (a) deprived of right by (b) by govt actor.
(2) Purpose of statute: To provide people redress for civil rights violations for gov—pleading requirement can be inferred from purpose, π should not have to plead “bad faith.”
(3) Fairness: Qualified immunity is an affirmative defense of which good faith is an element. D that has access to the proof necessary to prove itàcan be fairly allocated to ∆.
c) Types of claims with heightened pleading requirements
i) Claims of Fraud or Mistake: FRCP 9(b) says pleading must state particularized facts:
(1) π must plead: Conten