Civil Procedure I Outline

Civil Procedure Niehoff Fall 2017
 
Pleadings
Stating A Claim: FRCP 7, 8, 9, 10, and 12  
FRCP 7 (a) Types of Pleadings
Complaint
Answer
Counter-claim, cross-claim, third-party complaint
Reply (if ordered by the ct.)
FRCP 7 (b) Motions: refers to any court order and more narrow than a pleading (consequently it is different from a pleading)
a request for court order that must be in writing unless made during hearing or trial–> trying to get the court to do something
Case Law: Haddle v. Garrison (1998) SCOTUS asserts Haddle has claim for relief because the purpose of the statute was to address intimidation to not participate in fed. ct. Proceedings. Third-party interference with at-will employment relationships states a claim for relief under federal statute. This suffices injury to person or property requirement (broad) so that the P does have a claim for relief, and therefore, the case should not have been dismissed at the trial court level under the FRCP 12 b6.
 
Complaints
 
Specificity: FRCP 8 (a) What the Complaint Must Consist Of
Complaint: initial pleading that sets forth the original claim by the plaintiff that lays out the relief sought and describes the events.  
Notice Pleading: filing complaint with court commences the case; a summons and complaint are then served on D.
When we file a complaint we get a 1-page long summons. Gives notice to D that “they are being sued” and tells them when they must do something in response to the suit.
FRCP 8 (a) pleading that states what a claim for relief must contain:
“Short and plain statement of the grounds for the court’s jurisdiction”
Federal Question (constitutional, fed. statutes, and treaties)
Diversity
Supplemental
 “short and plain statement of the claim showing pleader is entitled to relief.” Most Frequently Challenged
Prayer for Relief: “A demand for the relief sought…may include relief in the alternative or different types of relief [equitable or legal].” May put forth a dollar figure or “damages in an amount to be shown at trial.”
 
How specific does a claim need to be? FRCP 8 (a) (2) Development of “Short and Plain statement…showing that the pleader is entitled to relief.”
Legal Sufficiency: if the plaintiff proved everything she had alleged, would she win? Does the law recognize a right to recover on the facts she has alleged?
Factual Sufficiency: Assuming that the law recognizes a claim, how much detail must the plaintiff allege to support that claim?
 
Modern Post-Twiqbal Plausibility Test; Plausible means more than Possible
Is the claim plausible on its face?
Court instructs to first disregard conclusory statements [recitation of the elements of the offense] then decide whether the remaining non-conclusory allegations appear “plausible” in light of judicial experience and common sense?
Does it have an obvious alternative explanation?
Broad: Conley v. Gibson (1957) claim sufficient “unless it appears beyond doubt that P can prove no set of facts in support of his claim which would entitled him to relief.”
This was the old standard. Give D notice; details can be fleshed out during discovery.
Narrow: Bell Atlantic Corp. v. Twombly (2007)  unclear whether agreement to price fix is evidence of price fixing or were they acting independently. Claim was possible but not probable. Ct. held “we do not require heightened fact pleading specifics, but only enough facts to state a claim to relief that is plausible on its face.”  Ask: is there an obvious alternative explanation? If yes, this means the factual allegations are probably insufficient because they have not tipped the scale to plausible.
Ashcroft v. Iqbal (2009) expanded plausibility test to all federal civil cases instead of just in antitrust cases (also featured qualified immunity for govt. officials). The Court requires  enough facts to state a claim to relief that is plausible on it face (not just possible). Disregard legal conclusions:  D “knew of, condoned, and willfully and maliciously” agreed to subject P to harsh conditions. Do remaining factual allegation appear “plausible” in “light of judicial experience and common sense?” No. Obvious alternative explanation: disproportionate impact on muslim men is not because of their race, but because Al Qaeda primarily consists of muslim men.
If the allegation of P’s complaint point to two scenarios equally forcible, then there is no plausibility and the case will be dismissed under 12 (b) (6).
 
The Problem of Incompatible goals: Learn as much as we can at the start of the case to screen out weak cases cheaply (restrictive Twiqbal) vs. eliminate technical barriers to cases that will be meritorious if they can get to discovery where we can find out the facts (open Conley version).
Cigar box problem: if the claim does not go forward, we can never see inside the box of discovery
Consequences of Twiqbal:
Very detailed complaints loaded with as many factual allegations as possible
More requests to amend under Rule 15
More motions to dismiss under 12(b)(6) because the standard for P’s is higher.
How to Assess a Complaint:
Is this an “easy case” for a complaint to fail?
Cause of action does not exist (law does not recognize the claim, injury, theory, etc.)
Claims that are inconsistent
Allegations are inconsistent with liability under the claim or the nature of the claim (Ex: Paper is not liable for libel in Morganroth case because what was said was true)
P fails to allege something that is essential to the claim
Omission of a key element to the claim
If it is not an “easy case,” how do we apply Twiqbal?
If the facts point to two equally plausible claims, complaint fails.
Practically speaking, if you make a plausible claim that is supported by factual allegations, the complaint should survive. Does P “nudge his claims across the line from conceivable to plausible.”
Nowhere in the rules is plausibility mentioned. 8 (a) (2) talks about short and plain. Twiqbal’s distinction between conclusory and non-conclusory statements reintroduces a subjective standard.
Informational Disadvantage: Twiqbal will impact cases where one side possess nearly all the information. Makes it harder to bring those suits because P needs discovery to obtain the necessary facts.
Counter: Twiqbal combats asymmetric litigation costs.
 
Special Pleading Requirements under FRCP 9 (b)
FRCP 9 (b) Fraud or Mistake; Conditio