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Civil Procedure II
University of Kentucky School of Law
Bauries, Scott R.





I. Pleading Rules

a. Rule 1: “These rules govern civil actions”; rule of construction/interpretation

b. Rule 2: “One form of action—the civil action”

c. Rule 3: Civil action commences with a complaint

d. Rule 7(a): Types of pleadings allowed:

i. Complaint

ii. Answers

iii. Reply (if ordered by court)

e. Pleadings vs. Motions:

i. Pleading: tells the court what your claim or defense is

ii. Motion: asks the court for something, usually an order (ex: discovery, transfer, etc.)

f. Complaints are dismissed for being insufficient, but cannot be dismissed even if responding party has 100% proof that they aren’t liable.

II. Notice Pleading

a. Rule 8(a): Claim for Relief

i. A pleading that states a claim for relief must contain:

1. A short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

2. A short and plain statement of the claim showing that the pleader is entitled to relief; AND

3. A demand for the relief sought, which may include relief in the alternative or different types of relief

a. Does not need to be a specific $ amount

b. Conley v. Gibson (has been OVERRULED!)

i. Old standard: “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the π can prove no set of facts in support of his claim which would entitle him to relief.”

ii. Only a short and plain statement of the claim to give ∆ fair notice of claim is required; if it’s impossible to conceive of a set of facts to support the claim, then the complaint can be dismissed (cites Form 11 as support for simplicity needed)

1. Form 11: on date, place, the ∆ negligently drove a motor vehicle against the π.

a. Use as last ditch effort, still valid, but soon will be rewritten.

2. Under defense bar, let in way too many frivolous claims

c. Swierkiewicz v. Sorema

i. Under Rule 8(a)(2), a complaint does not have to allege facts that establish a prima facie case, but rather just a short and plain statement of the claims showing why entitled to relief. It only needs to give notice of what is being sued for and some way that it can be proven.

1. Why is a prima facie case not required at the pleading stage?

a. You shouldn’t have to win the case at pleading stage

b. Often it is hard to get direct evidence to prove case through prima facie pleading

c. Generally, ∆s will have more access to information. (ex: personnel file is in possession of employer until discovery period)

ii. No evidentiary requirement for pleading; the pleading stage is not for the π to win the case, just for the π to state a cause of action

d. Two Ways a Complaint can be Insufficient:

i. Factual Insufficiency: There is a legal claim to be stated, but there aren’t enough facts to support the claim.

1. Ex: the complaint is missing dates, location, etc.; Sweirkiewicz, Twombly, stating “negligently” without any facts (directly conflict Form 11)

ii. Legal Insufficiency: There is no legally recognizable right present

1. Ex: “breathing my air,” statute of limitations lapsing

e. Heightened pleading standard for pleading special matters:

i. Rule 9(b): Fraud of Mistake; Conditions of the Mind

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

a. Allegations of fraud and mistake were singled out for special heightened pleading requirements based on the idea that these allegations were too easily fabricated and could be detrimental to the ∆’s reputation

i. Another argument on “Form 11” side – if the rule makers singled this situation out as a time where heightened pleading standards were needed, it doesn’t make sense for the Twiqbal standards to be even higher in a situation that was not explicitly laid out by the rule makers as necessary for a heightened standard.

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

a. This also seems to only require a short and plain statement as was required in Conley and Sweirkiwicz, similar to Form 11

III. Plausibly Pleading a Complex Commercial Claim

a. Bell Atlantic Corp. v. Twombly

i. Stricter pleading standard set forth: π’s claim must be plausible, not just possible

ii. Facts stated in the complaint are taken to be true and all reasonable inferences should be made in favor of the π. Must raise above a speculative level – likelihood of winning must be plausible, not possible.

iii. Must have more than just labels and conclusions; a formulaic recitation of the elements of a cause of action is not sufficient

iv. Dissent: (Stevens) changing the pleading standard could lead to disarray as states could end up having different pleading standards than federal courts.

v. Initially, it was thought that the heightened pleading standards would only be for the antitrust world (Eriksum v. Pardus supported that by using Conley standard), but then came Iqbal.

IV. Plausibly Pleading in General

a. Ashcraft v. Iqbal

i. Facts: Π filed complaint against federal officials for deprivation of constitutional protections while in federal custody

ii. In 5-4 decision, SCOTUS held that the claim was factually insufficient

iii. Legal conclusions are not taken at face; conclusory statements must be supported by factual allegations that plausibly support the conclusion

1. Again, directly contradictory to Form 11

a. Also may conflict second part of 9(b)

b. Twiqbal “Two-Step”

i. Deprive all legal conclusions of the presumption of correctness

ii. Consider whether remaining allegations (the factual statements), taken as true, together make out a plausible claim for relief

1. The guilty factual scenario must be more plausible than the innocent alternative – use “judicial experience and common sense” to determine which is more plausible

c. TEST:

i. Is cause of action legally sufficient?

ii. Is the statement short and plain?

iii. Does it pass the Twiqbal two-step?

Motion to dismiss for failure to state a claim (12(b)(6)) – no need to do that because you are just informing other party. Motion for judgment on the pleadings under

V. Service Under Rule 4

a. Constitutional Standards of Notice

i. Mullane v. Centra

the complaint

ii. 5(d) – Any paper after the complaint that is required to be served must be filed within a reasonable time after service

e. Service Notes:

i. Default judgments:

1. If ∆ accepts service and does not file an answer, then π wins by default

2. Remedy for π when ∆ has not mounted a defense

3. ∆ would have to become aware if damages are due


i. Comply with Rule 4

ii. Was that method of service constitutional under the Mullane standard?

VI. Responding to the Complaint

When a complaint is filed, the ∆ must respond or he will face a default judgment being entered for the π. The ∆ may either move to dismiss the case using the motions in Rule 12 or he may file an answer under Rule 8(b) and (c).

a. Rule 8(b) Defenses; Admissions and Denial

i. Generally: In response to a complaint, a party must:

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

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

ii. When answering each allegation of a complaint, the ∆ may either admit, deny (b)(2), or state that he lacks sufficient knowledge to admit or deny (b)(5).

iii. (b)(6) – an allegation is deemed to be admitted if a responsive pleading is required and the allegation is not denied.

iv. When making a denial, a ∆ must do so in a way that won’t be considered evasive or possibly as an admission

1. Misleading denials (artful denials may be seen as admissions)

2. Negative pregnant denials – a denial that is pregnant with an admission

a. Literal: too specific; ex: ∆ owes $1000 and denies that owes $999

b. Conjuctive: ∆ denies doing X, Y, and Z, because only did X and Y

b. Rule 8(c) Affirmative Defenses

i. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense

1. Ex: statute of limitations, estoppel, illegality, res judicata etc.

c. Zielinski v. Philadelphia Piers, Inc.

i. Π injured in a forklift collision with Sandy Jonson. Johnson is employed by Carload Contractors, who had bought PPI. ∆, PPI, generally denied allegations even though there were some that should’ve been admitted.

ii. General denials should only be used when every single aspect of an allegation is intended to be denied.

iii. If any component turns out to be something that the ∆ had no intention of denying (like the collision itself here) the court will be in a position to declare the entire denial ineffective.

iv. Rule 8(b)(6) provides that all allegations not properly denied are deemed admitted