I. COMPLAINT
A. REQUIREMENT – Rule 8(a)
1. Allegation of jurisdiction – Rule 8(a)(1)
2. Short and plain statement of the claim showing that the pleader is entitled to relief – Rule 8(a)(2)
a. Generally, must plead elements of cause of action
i. Notice pleading means can plead without a lot of factual detail – Form 9 (Form 11 in new forms)
(Ex) Pro se P submitted a very confusing complaint, but court found enough in complaint to suggest causes of action for conversion and failing to follow regulations re selling goods held by customs
Dioguardi v. Durning
ii. Court will sometimes infer a missing element as in Garcia v. Hilton Hotels where court inferred missing element of publication in a slander complaint; or in Dioguardi where court inferred causes of action being pleaded.
iii. Elements of any complaint includes damages, causation
iv. Complaint must also include time and place – Rule 9(f)
v. Should not plead absence of affirmative defenses – It’s D’s job to plead and prove affirmative defenses
vi. In recent case Bell Atlantic v. Twombly,
Does it require more than mere notice, especially when allegations are consistent with both innocent and culpable conduct?
Two weeks after Bell Atlantic, one case Erickson v. Pardus adopted its view.
The Supreme Court decided P’s allegations that D’s conduct constituted an antitrust violation was not sufficient b/c D’s conduct was both consistent with innocent and culpable aspects. The court reasoned that the allegation has to be factually suggestive and plausible (not merely conceivable) in indicating a conspiracy/agreement. Otherwise, they are “mere legal conclusions resting on the prior allegations.” This court opposed the language used in Conley v. Gibson where it says “Should not be dismissed for failure to state a claim unless it appears beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief.”
Bell Atlantic Corp v. Twombly
b. Special pleading rules – heightened pleading standards
i. Federal rules may impose special pleading rules
a) Fraud must be pleaded with particularity – Rule 9(b)
i) Not clear what it means. Said slightly more detail than required under Rule 8(a)(2)
D claims that P fails to delineate the underlying acts and transactions and that such frivolous allegations should be deterred to protect reputation and costs (also from fishing expedition and non-meritorious claims). The court believes since the truth is within D’s knowledge, it wouldn’t be fair to victims of fraud if dismissed.
Denny v. Carey
However, they seem to require more detail than that in Denny v. Barber.
ii) Refer to Form 13 (Form 21 in the new forms), which does not seem to require a lot.
iii) This rule applies to all forms of fraud except federal securities fraud
iv) Purpose: To prevent irreparable harm from the mere allegation of fraud, which can destroy the reputation of a business or a person; BUT, this must be balanced against the difficulty P might have in getting information needed to plead more specifically, which, given the nature of fraud, may well be hidden and not readily available w/o discovery. And the costs incurred to meet the requirement may outweigh the benefits.
b) Special damages must be specifically stated – Rule 9(g)
i) Special damages are those that are not the necessary and inevitable result of what is pleaded. KEY seems to be foreseeability: would you expect P who pleaded what this one did to attempt to prove this injury?
(Ex) The allegations of injury to the neck, back and spine pleaded in the complaint was not enough to sustain a verdict for damages based on elevated blood pressure and a shoulder injury. Court opined that these injuries were not foreseeable and thus, special damages. It was P’s initial burden to plead these special damages before trial.
Ziervogel v. Royal Packing Co.
ii) PURPOSE: To avoid surprise at trial
iii) If special damages can reasonably be inferred w/o pleading with particularity, it is acceptable depending on circumstances
HYPO
P’s complaint she was painfully, seriously and permanently injured, bruised and lacerated in and throughout her head, body and limbs. She had an abortion due to the injuries sustained from this accident.
The way the court defined Special Damages are those not reasonably expected to follow in injury.
ii. Statutes sometimes impose special pleading rules
a) Private Securities Litigation Reform Act (PSLRA) requires more detailed pleading in federal securities act cases. It is a super-heightened pleading standard that requires the complaint specify what statements were misleading and how, as well as detailed facts supporting information and belief allegations and inferences
b) Note that other aspects of pleading in securities fraud cases not affected by this.
Dura Pharmaceuticals said PSLRA doesn’t impose heightened pleading requirement for proximat
hey’re the result of passion and prejudice.
B. FORM OF A COMPLAINT – Rule 10
1. Must have caption with name of court, title of action (Who P and D are), file number and designation (e.g., Complaint) – Rule 10(a)
2. Paragraphs are to be numbered and each paragraph should relate to a single set of circumstances. Each cause of action must be stated in a separate count – Rule 10(b)
3. Subsequent paragraphs can adopt earlier ones by reference so that no repetition is required. Can also attach documents as exhibits, and they become part of complaint – Rule 10(c)
II. MOTIONS TO DISMISS – Rule 12
A. Time permitted for a response – Rule 12(a)
1. Generally, 20 days after being served with a complaint
2. In reality, parties usually agree to an extension
B. Use of Rule 12(b), 12(g), 12(h)
1. Motion to dismiss for failure to state a claim upon which relief can be granted – Rule 12(b)(6)
(Ex) Alleges the State pays higher wages to employees in predominantly male job classifications than to employees in predominantly female job classifications. B/c court viewed this as a comparable worth claim, which does not violate law, it dismissed this claim.
However, part of P’s complaint alleges intentional and willful discrimination – Possibly meritorious.
Court says a complaint should not be dismissed if it has a claim upon which relief can be granted even though other claims may not. A complaint should not be dismissed “unless it appears beyond doubt that P can prove no set of facts in support of his claim.”
Also, complaint is not the place to plead evidence and if lower court found the pleadings confusing, it could have P move for a more definite statement.
American Nurses’ Association v. Illinois
Note: Contrary to Bell Atlantic’s decision where court said allegation has to be factually suggestive and plausible, not merely conceivable.
HYPO
You are D and your motion to dismiss for failure to state a claim upon
