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Civil Procedure I
University of Illinois School of Law
Thomas, Suja A.

Civil Procedure

Professor Suja Thomas

Fall 2015

· Rules Enabling Act

1. Advisory Committee

2. Standing Committee

3. Judicial Conference

4. Supreme Court

5. Congress

· 28 USC §2072

o “Such rules shall not abridge, enlarge or modify any substantive right.”

· Rule 1

o Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”


The complaint and dismissal

· Rule 3

o A civil action is commenced by filing a complaint with the court.

· Purpose of filing complaint

o Begin a method to obtain relief from another party

o Give the court information about the suit and ask the court to take power over the action

o Notify the defendant of the legal action

· Rule 8(a)(2)

o “A pleading that states a claim for relief must contain: . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief”

· Rule 8(e)

o “Pleadings must be construed so as to do justice.”

· Rule 7(b)

o A motion is “[a] request for a court order.” Must be made in writing unless at hearing or trial

· Rule 12(b)(6)

o “failure to state a claim upon which relief can be granted”

· Dioguardi

o pleading rule does not require “facts sufficient to constitute a cause of action”

o pleading rule only requires “a short and plain statement of the claim showing that the pleader is entitled to relief”

o “giving the plaintiff the benefit of reasonable intendments in his allegations (as we must on this motion)”

o “defendant must be taken as admitting” allegations

· Pleading under Conley:

o “[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.”

o “Specific facts to support [plaintiff’s] general allegations” are not required

o “short and plain statement of the claim” “that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests” is the only requirement

· Pleading under Twombly and Iqbal

o Conley established a standard for dismissing a complaint that lasted for fifty years

o Twombly changed the interpretation for dismissal under Rules 8(a)(2) and 12(b)(6) from the standard under Conley

o Iqbal confirmed that Twombly applied to all cases

· Standard to dismiss under Twombly:

o Is the claim “plausible”

§ Plausible: “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

o Factual matter is “taken as true”

o Construe allegations in plaintiff’s favor

o Legal conclusions, couched as factual allegations, are not accepted as true

o More than labels and conclusions and recitation of elements of cause of action

o More than possibility or conceivability of claim is required

o A probable claim is not required

o Enough facts to raise the reasonable expectation that discovery will reveal evidence of the claim

o Detailed factual allegations not required but more than speculative allegations required

o Heightened pleading is not required

· 2 step analysis under Twombly

o (1) Do not accept as true any conclusory legal allegations

o (2) Are the remaining allegations plausible?

§ Claim is plausible when

· Iqbal

o Non-conclusory allegations accepted as true

o Claim is plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

o The court must “draw on its judicial experience and common sense.”

· Rule 9(b) – Heightened pleading

o In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.

o Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

o Requires more specifics than Rule 8(a)(2) (pre-Twombly)

o 8(a)(2) starts to look like 9(b) (post-Twombly)

Responding to a complaint, answers, denials and affirmative defenses

· Responding to a complaint

o Making a motion

o Answering the complaint including defenses and admissions and denials

o Asserting affirmative defenses in answer

§ Affirmative defenses absolve defendant of liability

§ Must be pled in answer

§ Twombly may apply to affirmative defenses

Rule 8(b)(1)

In responding to a pleading, a party must:

State in short and plain terms its defenses to each claim asserted against it; and

Admit or deny the allegations asserted against it by an opposing party.


Motions for a More Definite Statement and to Strike

o Pleadings can be amended once as a matter of course within time limitations

o Otherwise, pleadings can be amended with the other party’s permission or the court’s permission (freely given when required by justice)

o Statutes of limitations—statutes that limit the time to file complaints and defenses—complicate amendments

o Amendments relate back to the original time that the pleading was filed when one of three circumstances has been satisfied

Rule 15(a)(1)-amending as a matter of course

Amendments to pleadings “once as a matter of course” (if within timing requirements)

Plaintiff can file an amended complaint once as a matter of course even after a defendant has served an answer or a motion (if within timing requirements)

Defendant can file an amended answer once as a matter of course (if within timing requirements)

Rule 15(a)(2)-Permissive amendments

Before trial, other amendments are permitted with the opposing party’s written consent or the courts permission

Court should freely give this permission when justice requires.

Rule 15(c)(1)-Relation Back

Amendment relates back to date of original pleading when:

(A)“the law that provides the applicable statute of limitations allows relation back;”

(B)it “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”

(C)it changes the party or the naming of the party against whom a claim is asserted,

if Rule 15(c)(1)(B) is satisfied and (i) notice, within stated time (time for serving summons and complaint), was received by party to be brought in, such that the party not prejudiced in defending on merits, and (ii) party knew or should have known that action would have been brought against it, but for a mistake concerning the proper party’s identity