Civ PRO 2 Hillel Levin / Spring 2011
Pleadings
Complaints (Rule 8)
1. Purpose: The complaint is the pleading the P files to initiate a lawsuit, setting forth the P’s claims against the D.
2. Rule 8(a) requires three things:
a. A statement of the basis for jurisdiction
i. This jurisdiction has been interpreted to be subject matter jurisdiction but not personal jurisdiction which can be waived.
b. A “short and plain statement of the claim showing that the pleader is entitled to relief.”
i. See below
c. A demand for judgment.
i. Doesn’t have to specify the amount. Remember Rule 11 prohibits the lawyer from making unsupportable claims.
Statement of Claim – Rule 8(a)(2)
1. Notice Pleading – See also Form 11
a. The primary purpose of the claim is to give notice to the D of the P’s claim.
b. Short and Sweet – Doesn’t have to be short and mostly it isn’t so that the P can bring the D to the negotiations table. On the other hand they may not want to show all their cards in the complaint.
c. Notice pleading acknowledges that at the start of the lawsuit, the parties may not possess all of the information they need in order to set out their positions in detail. The discovery process can help them get that information during the course of the litigation.
d. Case Law
i. Conley v. Gibson – Motion to dismiss denied. “the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the D fair notice of what the P’s claim is and the grounds upon which it rests.” See also: Swierkiewicz v. Sorema
2. The Plausibility Requirement
a. Bell Atlantic v. Twombly – The S. Ct. Insisted that it was not really requiring a heightened level of pleading. “We do not require heightened fact pleading of specifics, but 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.”
b. Ashcroft v. Iqbal – S. Ct. Held that the complaint failed to meet Rule 8 pleading standard because the allegation of purposeful discrimination was conclusory. “To survive a MTD, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”
3. Move by the S. Ct.
a. Notice Pleading Standard – permissive attitude: let the P get the case started and through discovery and possibly trial we will see if the claim has any factual substance. – Conley and Swierkiewicz
b. Plausibility Standard – have an attitude of caution: discovery can be really expensive and burdensome, so unless the P provides enough facts in the complaint to show that the key allegations are plausible, we’re not going to let the P launch the litigation.
c. Reconcile the two?
i. Complaints do not have to contain a lot of factual detail as long as they state a valid claim, but a P cannot rely on bare allegations of legal conclusions without alleging the facts on which those conclusions.
ii. Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” The notice pleading standard emphasized short and plain. The Supreme Court’s recent cases warn us not to ignore the part was showing that the pleader is entitled to relief.
4. Heightened Pleading:
a. Fraud or Mistake: Rule 9(b) requires that “in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Rather the complaint must give a more detailed account of the fraud, such as who said what to whom, when and where the representation was made, in what way the representation was false, and how the plaintiff relied on it.
i. Note that this heightened pleading standard that applies to answers and defenses as well.
b. Letherman v. Tarrant County – MTD on a civil rights case. The S. Ct. said that the case was alright and if a heightened pleading standard were to be enacted it should be through amendment of the FRCP.
Answers
Language of the Rule 12(A)
(a) Time to Serve a Responsive Pleading.
(1) In General. – Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. – This is a incentive to waive service.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.
Responding to Allegations
1. Overview: The answer can include denials and affirmative defenses. Alternatively, the D can make a pre-answer motion, such as a motion to dismiss for lack of jurisdiction or for failure to state a claim. D may also assert claims of its own, whether as counterclaims, cross-claims or third-party claims.
2. Admissions and Denials: Under Rule 8(b) a responsive pleading admits or denies each of the allegations in the complaint and asserts the defenses to each claim. The D will either admit or deny the allegations contained in each paragraph.
a. Admitted facts: Facts admitted in the pleadings need not be proved at trial; they are simply accepted as true.
b. Lack of Information: Rule 8(b)(5) A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state and the statement has the effect of a denial.
c. Denials: The P can also deny a statement. The D must be careful to respond to each of the complaint’s allegations.
i. Denial of Part, Admission of Part: You cannot deny the entire paragraph because part of it is false. These pleadings are not true/false. Thus, you have to state which parts of the allegation you admit and which parts you deny. Rule 8(b)(4)
1. Zielinski v. Philidelphia Piers, Inc. – The D improperly denied an entire paragraph of the complaint, and the court penalized the defendant by deeming certain facts admitted.
ii. General Denial: Rule 8(b)(3) says “a party that intends in good faith to deny all the allegations of a pleading – including the jurisdictional grounds – may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.”
d. Failure to Deny: If a party doesn’t deny then the allegation during a responsive pleading then it is admitted. Rule 8(b)(6)
Counterclaims: Rule 13
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Affirmative Defenses (Rule 8(c))
1. Purpose: D may respond that the he isn’t liable because of some additional information that provides a defense. This may be in addition to the denial of some of the facts.
2. Rule 8(c): In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
a. Accord and satisfaction
b. Arbitration and
ndispensable party – Rule 12(b)(7)
3. Defense that is never waived:
a. Subject matter jurisdiction – Rule 12(b)(1)
Amendments to Pleadings (Rule 15)
1. Amending the Pleadings: Rule 15(a) reflects the modern attitude of liberal amendment of pleading. It addresses amendment as a matter of course, amendment by consent, and amendment by leave of court.
2. Amendment as a Matter of Course: Rule 15(a)(1) – A party may amend it’s pleading once within 21 days after serving it OR before the other party has responded to it.
3. Amending by Consent: Rule 15(a)(2) – If the other party agrees to it in writing then you can amend the complaint any time you want.
4. Amendment by Leave of Court: Rule 15(a)(2) – The court may also grant permission to amend. The “court should freely give leave when justice so requires.”
Relation Back Rule 15(c)
1. Purpose: The party seeking to amend the pleading argues that the amended pleading should “relate back” to the date of the original pleading, and therefore does not violate the statute of limitations.
2. Same parties: If the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading; or
3. Different parties: If a new party is being named then three requirements must be shown:
a. Claims of the amendment must arise out of the same conduct or occurrence as the original pleading.
b. Within 120 days after the original pleading filing the new party must have known about the lawsuit so that it will not be at a disadvantage in defending the lawsuit.
c. The new party must have known or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.
4. Beeck v. Aquaslide ‘N’ Dive Corp. – P was hurt on D’s slide which had a sticker which said it was actually a different parties slide. P sued X then amended to D. Held: (1) the trial court did not abuse its discretion in granting the alleged manufacturer leave to amend in order to deny manufacture of the slide, even though it had originally admitted that it had manufactured the slide, and (2) the trial court did not abuse its discretion in granting the alleged manufacturer's motion for a separate trial on the issue of manufacture.
5. Worthington v. Wilson – Arrestee brought civil rights action against village and “unknown named police officers” in state court. P’s amended complaint does not relate back under Rule 15 (c) because the amendment did not correct a mistake but rather corrected a lack of knowledge at the time of the original complaint.
Ensuring Truthful Pleadings (Rule 11)
1. Rule 11 says that when you sign a pleading, motion, or other paper, or when you file it or present it to the court, you are certifying that it is not frivolous. If a lawyer or party violates this rule by presenting a paper with legally or factually baseless contentions, the court may punish the violator by imposing sanctions.
2. Rule 11(b) states that a lawyer or party “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.”
