Civil Procedure I Outline

Civil Procedure
Zamoff
Fall 2016
 
 
The Complaint
FRCP 3: A civil action is commenced by filing a complaint with the court
FRCP 8(a): 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
*Complaint must state the material and essential facts sufficient to constitute a cause of action rather than legal conclusions. Negligence, for example, is a legal result not a fact in itself. Gillispie
Purposes of pleading requirements 8(a)
Notice to D
Notice to court
Deciding cases on the merits
FRCP 10 Form of Pleadings
Caption; Names of Parties.  Every pleading must have a caption with the court’s name, a title, a file number, and a Rule 7(a) designation.  The title of the complaint must name all the parties . . .
Paragraphs; Separate Statements.  A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. If doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count or defense.
FRCP 10(b): If doing so would promote clarity, each claim founded on a separate transaction or occurrence – and each defense other than a denial – must be stated in a separate count or defense.
FRCP 10(c): A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion.
Arguments for Bare-bone complaint v. “Kitchen Sink”
Bare-bone can leave the opponent unprepared, avoid revealing weakness, broaden in issue and leave space for further discovery, lower cost.
Kitchen sink can make D work harder (machine-gun approach), more credibility, make an impact and perhaps force a settlement 
FRCP 8(d)(2) Pleading alternatives: a party may set out multiple statements of a claim or defense alternatively or hypothetically, either in a single count of defense or in separate ones. The pleading is sufficient if any one of them is sufficient.
*As long as in good faith, claims may be made in alternative regardless of consistency, and it will be the court that determines which set of facts P is entitled to recover. McCormick. (Plaintiff not negligent and contributory negligent at the same time)
Alternative pleading is not permitted when in the nature of things the pleader must know which of the inconsistent averments is true and which is false
FRCP 8(d)(3): “A party may state as many separate claims or defenses as it has, regardless of consistency.”
 
Claim Sufficient for Relief
FRCP 8(a)(2): “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.”
Complaint must provide “fair notice of what the plaintiff’s claim is and the grounds on which it rests.” Conley v. Gibson
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 to support his claim which would entitle him to relief. Conley v. Gibson (now widely disputed)
Questions to consider:
Meaningful factual allegations? Are they conclusory and vague?
Likelihood they are simply made up?
Complex cause of action?
Will discovery be burdensome?
Rule 8 Triology
Swierkiewicz v. Sorema, N.A. – Prima facie is a flexible evidentiary standard, not a rigid pleading standard. Imposing such standard conflicts with FRCP 8(a)(2) requiring only “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Bell Atlantic Corp. v. Twombly (2007) – Plausibility standard: Need well-pleaded facts (taken as true) to give rise to a plausible inference that an agreement was actually made. Must be enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement
Ashcroft v. Iqbal – Plausibility standard: cannot be conclusory and formulaic, must create a plausible inference of wrongful conduct. “More than a sheer possibility that a defendant has acted unlawfully”. Also have to address to “obvious alternative explanation”.
Possible: 0 – Plausible (mere possibility of misconduct is not enough)
Plausible: more than possible, less than 50% (strong inference standard)
Determining sufficiency of complaint
Disregard conclusory allegations
Consider only well-pleaded factual allegations
Then … decide whether those allegations give rise to a plausible inference that all elements of the cause of action have been satisfied
* If a theory is not established in the complaint, P is barred from raising that theory for recovery in later of the lawsuit. Mitchell.
FRCP 12(b)(6): A party may assert the following defenses by motion: failure to state a claim upon which relief can be granted.
Policy: short cut the usual litigation process
FRCP 12(e) Motion for More Definite Statement
“So vague or ambiguous that the party cannot reasonably prepare a response”
If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.”
Should only be granted if there is