Select Page

Civil Procedure I
University of Illinois School of Law
Winship, Verity

Winship, Civil Procedure, Spring 2011


RULE 7: Pleadings Allowed

· What pleadings are needed to get a case to trial:

o Plaintiff’s Complaint

o Defendant’s Answer

· Other pleadings that can be filed: Counterclaim (affirmative claim for relief from other party); cross claim (claim against a third party)

· If it’s not one of these things, it’s a motion.

Rule 8: General Rules of Pleadings


· Jurisdictional facts unless already established

o Talk about diversity and amount in controversy; or federal question – for Federal Court

· Short and plain statement of claim showing entitlement for relief

o The substantive body of law at issue and a sketch of factual situation that entitles you to relief

· Demand for judgment

· Can ask for alternative or multiple forms of relief

· 5) Lacking Knowledge: A party that lacks knowledge of information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.


· Rule 8(b)(c)

· Short and plain statement of defenses to each asserted claim

· Admit/deny the allegations

· “Without knowledge” = denial

· Failure to deny = admission, except as to damages

· Can set forth affirmative defenses (Rule 8(c)(1))

o Waived if not set forth

Brevity, Consistency and Justice

· Can always plead in the alternative (both plaintiff and defendant)

o Lawyer should come up with as many alternatives as are feasible

· Construed to do “substantial justice”

o The presumption is that the case deserves to go forward

o Judges will look at the pleadings

· Don’t lose all your defenses because one is ruled to be invalid

Rule 9: Pleading Special Matters

b. Fraud or mistake; condition of mind: In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge and other content’s of a person’s mind may be alleged generally.

Conley v. Gibson

· “Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

· “Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.”


Swierkiewicz v. Sorema

· An employment discrimination complaint need not include specific facts establishing a prima facie case of discrimination

· Instead it must contain only “a short and plain statement of the claim showing that the pleader is entitled to relief.” FRCP 8(a)(2)

· The “statement must simply “give the defendant fair notice of what the plaintiff‟s claim is and the grounds upon which it rests.‟”

· “This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.”

Bell Atlantic v. Twombly

· We require “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.”


· Qualified Immunity: Immunity from suits as well as liability

· “[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”

· “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly


Rule 12: Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

· 12(b) How to Present Defenses: Every defense to a claim for relief in any pleading must be asserted in the responsive pleadingif one is required. But a party may assert the following defenses by motion:

1. lack of subject-matter jurisdiction;

2. lack or personal jurisdiction;

3. improper venue;

4. insufficient process;

5. insufficient service of process;

6. failure to state a claim upon which relief can be granted; and

7. failure to join a party under Rule 19

2. 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 …

3. 12(f) Motion to Strike: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter …

4. 12(g) Limitation on Further Motions

1. A party that makes a motion under this rule must not make another motion under this rule

2. Except

1. If omitted defense or objection was unavailable to the party

2. Subject-matter jurisdiction can be raised any time

3. The defenses of failure to state a claim and Rule 19 may be raised on a motion for judgment on the pleadings

5. 12(h) Waiver or Preservation of Certain Defense

1. Waived: lack of personal jurisdiction, improper venue, insufficient process, or insufficient service of process

2. Can be raised in a pleading, motion for judgment on the pleadings, or at trial: failure to state a claim upon which relief can be granted, failure to join an indispensible party, failure to state a legal defense

3. Can be raised anytime: lack of subject-matter jurisdiction

David v. Crompton & Knowles

· Complaint

o Crompton designed, manufactured and sold a shredding machine, 600 AAZ Series 11, to Crown (plaintiff’s employer).

· Answer

o Without sufficient knowledge or information to admit or deny the allegation. (Rule 8(b)(5))

Types of Defendant Responses

o Denial Claim: didn’t happen

o Affirmative Defense: Excuse/justification for defendant’s action that negates the plaintiff’s claim, even if proven at trial

o Must be included in response to pleading, including:

§ Contributory negligence

§ Fraud

§ Statute of Limitations

o Governed by RULE 8(c)

o Counterclaim

Zuk v. Eppi

o Complaint alleged: EPPI violated Zuk’s copyright in his therapy sessions by circulating tapes of Zuk’s sessions

o Defendant’s FRCP 12(b)(6) Motion: Failure to state a claim for which relief can be granted

o Granted by court

o Zuk did not own the copyright (was an employee of EPPI at the time of filming); didn’t register the copyright; and was barred by the

party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.

o Discovery Devices

o Initial Disclosure

o Document Inspection

o Interrogatories

o Depositions

o Physical/Mental Examinations


In re Convergent Technologies (Fed. Court)

o $40k spent answering interrogatories (over 1000)

o Cost of getting information must be proportional to the information they hope to gain

o Judge must decide whether interrogatories are “unduly burdensome”


o Rule 56(a) Summary Judgment: The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

o Burden of Persuasion: The party with this burden must convince the trier of fact at trial of the accuracy of the factual assertions.

o Burden of Production: The party with this burden has to present enough evidence that a reasonable finder of fact could find for him

o Summary Judgment


Celotex Corp. v. Catrett (Supreme Court 1986)

OLD ADICKES STANDARD: Adickes – burden is on the defendant moving for summary judgment to show positively/affirmatively that the plaintiff could not prevail at trial

NEW CELOTEX STANDARD: regardless of who is moving for summary judgment, the party who bears the burden of proof at trial must prove affirmatively at the summary judgment stage. Defendant would have to show plaintiff has no proof.

RULE: Defendant need not offer proof that negates plaintiff’s case. It need only show that plaintiff has failed to meet the burden of production. After a reasonable amount of discovery, the party moving for summary judgment (usually the defendant) must show that the other party (usually plaintiff) who bears the burden of proof at trial has a lack of evidence. The defendant must point out to the court those parts of the depositions, affidavits, and other evidence that demonstrate that plaintiff has no evidence on one or more elements of its claim.

RULE: The defendant must point out to the court those parts of the depositions, affidavits, and other evidence that demonstrate that plaintiff has no evidence on one or more elements of its claim.


For plaintiff to prevail on a summary judgment motion, it must have presented enough evidence to switch the burden of production to defendant. Plaintiff must have substantial evidence on each and every element of its claim. In addition, defendant must either have no conflicting evidence or evidence that is so completely overwhelmed by plaintiff’s evidence that it cannot be believed.