SUJA THOMAS CIVIL PROCEDURE OUTLINE FALL 2013
How rules are made
Advisory Committee -> Standing Committee -> Judicial Conference -> Supreme Court -> Congress
1. Types of pleadings 7(a)
i. Definition: the document by which the P begins the case
1. Rule 3 “a civil action is commenced by filing a complaint with the court”
1. short plain statement of grounds for subject matter jurisdiction 8(a)(1)
2. Short and plain Statement of the claim showing P is entitled to relief 8(a)(2)
a. Must be legally (Does the law recognize a right to recover on the facts alleged?) and factually sufficient
b. Factual detail required is not high
i. All factual assumptions are considered as true
ii. Facts must plausibly infer that the D is liable or claim may be dismissed under 12(b)(6).
· This is post-twombly.
· Pre-twombly: complaints would not be dismissed unless beyond doubt P can prove no set of facts in support of his claim that would entitle him to relief.
c. P must only state the facts, not the legal theory he is relying on in the complaint.
d. Heightened pleading
i. Rule 9(b) When dealing with fraud, mistake, and special damages, hieghtend pleadings are required.
ii. What are they?
· 9(b)”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.”
a. Protect the other party from the reputational harm caused by imputation of fraudulent behavior.
b. Assertations of fraud are often made for nuisance value or to increase the chances of settlement
c. Fraud comes in a huge variety of fact patterns meaning the party accused of it should be given a detailed charge to enable her to respond and defend.
· Fraud is often asserted as a claim, but 9(b) is required for any time someone asserts fraud.
· Enforce 9(b) by granting a motion to dismiss under 12(b)(6).
a. Must be raised +by the opposing party. Failure to raise the issue = forfeiture of the issue. p.322 in supplemental text
iii. Statutes can impose heightened pleadings
· Private Securities Litigation Reform Act of 1995 (PSLRA) even more heightened pleading than 9(b) for fraud
· Complaint must
a. Specify each statement alleged to have been misleading and the reason or reasons why the statement is misleading.
b. state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind
· Keep in mind 3 things when determining if to dismiss under PSLRA:
· Courts must accept all factual allegations in the complaint as true
· Courts must consider the complaint in its entirety as well as other sources courts ordinarily examine when ruling on 12(b)(6)
· The court must take into account plausible opposing inferences
· Strong Inference = “a complaint will survive only if a reasonable person would deem the inference of scienter (state of mind required to hold a person accountable) cogent and at least as compelling as any opposing inference one could draw from the facts alleged.”
· Tellabs Inc. v. Makor Issues & Rights LTD.
· Case summary:
· Tellabs manufactures specialized equipment used in fiber optic networks. Richard Notebaert was the CEO and President during the relevant time of the suit. Tellabs was sued by its shareholders.
· The shareholders allege that Tellabs and Notebaert engaged in a scheme to deceive the investing public about the value of its stock in violation of section 10(b) of the Securities Exchange Act of 1934. see p. 378 for 4 complaints. Suit under PSLRA
· Goals of PSLRA: to curb frivoluous, lawyer-driven litigation, while preserving investors' ability to recover on meritorious claims.
· Rules outlined above
· Scalia – it should be if scienter is more plausable than innocence.
· Even stronger than the majority.
· Stevens – it should be probable cause.
· This is less than the court's requirement but the standard we are left with now makes it harder to bring a civil case than a criminal case.
3. Demand for relief sought 8(a)(3)
a. Amount of money if money is requested
4. Side note: it also contains the title of cause and names of: court, county, parties
iii. After this, D has 21 days after being served to submit an answer or make a motion
b. Answer 12(1)(A)
i. Definition: Ds response to the complaint
ii. Answer or motion to dismiss made 21 days after the complaint
iii. Party must
State in short and plain terms its defenses to each claim asserted against it and
a. Each ground for the defense is stated separately or generally
Admit or deny the allegations asserted against it.
a. Denials must fairly respond to the substance of the litigation and can be either
i. General denial
a. Generally deny all allegations including jurisdictional statement or
b. Generally deny all allegations except those specifically admitted.
c. Note: Make general denials at your own risk! See Zielski v. Philadelphia Piers, Inc
1. Case summary
· P forklift operator argues that D, Philadelphia Piers Inc (PPI) owned a forklift that was operated by Sandy Johnson that came in contact with him
· The D makes a general denial of the claim.
· Sandy Johnson interviewed, states – incorrectly – that PPI owned the fork lift.
· Later statute of limitations expires and P finds out PPI didn’t really own the fork lift. He can't add the correct party due to the statute so he asks the court to rule that PPI owned the forklift.
· The court grants the motion: A defendant who knowingly makes inaccurate statements may be estopped from denying those statements at trial
ii. Specific denial
· Specifically deny designated allegations
a. A general denial may be made only when the defendant intends in good faith to deny all of the plaintiff’s allegations. A denial of only part of the allegations requires a specific denial of the parts that are denied, and an indication of which parts are true.
iv. P has 20 days to respond to new matters raised by D,
i. Definition: answer to the answer
ii. When to use:
When the answer contains a counterclaim (reply is required)
If the court orders one
2. Motions against the complaint
i. Filing a motion Rule 7(b)
1. A request for a court order must be made by motion
now wrong standard of “facts sufficient to constitute a cause of action”
2. See Conley (black union workers sued railroad co, RR filed motion to dismiss for failure to state a claim) rules only require P give D “fair notice of what the Ps claim is and the grounds upon which it rests”
1. AND, “[A] 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.”
e. Twombly standard
i. Case summary
1. Complaint alleges that ILECs (local service providers) conspired to restrain trade by inflating charges for services. Suit filed on behalf of telephone users under sherman anti trust act. Ps could only show “conscious parallel behavior” but had no further evidence of any agreement b/w the ILECs.
2. The court held Ps failed to state a claim.
ii. P must give enough evidence to show that the agreement was more than just possible/conceivable, but plausible.
iii. Motion to dismiss succeeds by demonstrating that even if every fact asserted in the complaint is taken as true, no recovery is plausible under any legal theory.
1. Much easier for the D than the standard under Conley.
2. Pure legal conclusions (couched as factual allegations) are not accepted as true.
iv. This is sort of like a return to a more fact pleading standard.
4. Heightened pleadings – see above
5. Changing pleadings
a. Liberal policy
i. The federal rules are extremely liberal in allowing amendment of the pleadings
ii. PAE Gov't services Inc v. MPRI Inc
1. Summary of case:
a. PAE filed complaint, D Court dismissed.
b. Filed second complaint contridicting 1st complaint
c. D Court dismissed w/prejudice
2. Issue: does the fact that an amended complaint/answer contains a contrary allegation to an earlier complaint/answer render the later pleading a sham?
a. No. We approach pleadings with some leniency as parties usually abandon claims over the passage of time as they learn more about the available evidence and viable legal theories. This is litigation.
b. Rule 12(d) conversion
i. When responding to a motion to dismiss or 12(c), if new information is alleged that is not in the pleadings, the motion is converted to a rule 56 motion for sum judg.
ii. Conversion should occur only after the parties have been offered a reasonable opportunity to present pertinent sum judg materials.
1. No conversion when
a. The motion comes quickly after the complaint was filed
b. Discovery is in its infancy and the nonmovant is limited in obtaining and submitting evidence to counter the motion
c. The nonmovant doesn’t have reasonable notice that a conversion might occur.