Civ Pro 2 outline spring 2015
Chapter 13 (413-415; 421-467) Basic Pleading
· A complaint in federal court must contain a statement of SMJ, a short and plain statement of a claim showing that the pleader is entitled to relief under any applicable law (whether or not she identified it in the complaint), and a prayer for relief.
· Heightened pleading is required only for matters required by Rule 9b or by statute to be pled with more specific factual detail, and the courts lack the authority to require heightened pleading on their own initiative by judicial interpretation.
· The sufficiency of a complaint may be tested in federal court by a motion under Rule 12b6 to dismiss for failure to state a claim
· On a Rule 12b6 motion, the court must take all well-pleaded allegations as true and will consider only those allegations within the 4 corners of the complaint (or incorporated therein by reference).
· An allegation is not “well pleaded” if it is merely conclusory- no more than naked recital of an element of a cause of action.
· A court should grant a Rule 12b6 motion if, assuming the truth of the well-pleaded factual allegations, it determines that they do not plausibly show an entitlement to relief under the applicable law. It is not enough that such allegations are equally consistent with an “innocent” explanation as with liability-creating explanation.
· A plaintiff in federal court is not required to plead factual allegations respecting each and every element of a theory of liability under an applicable law (“elements-pleading”), but pleading allegations for each element is good practice.
· Although Rule 8 does not, in terms, require fact pleading, pleading specific facts in sufficient detail to suggest the plausibility of liability under applicable law is nevertheless a wise precaution, if not a necessity, after the Supreme Court decisions in Twombly and Iqbal.
What does Rule 8 require (at least pre-Twombly)?
· A short and plain statement of the claim showing that the pleader is entitled to relief. Rule 8
· A complaint should not be dismissed…unless it appears beyond doubt that the ¶ can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson
· All the rules require is a short and plain statement of the claim that will give the defendant fair notice of what the ¶’s claim is and the ground upon which it rests. Leatherman
· Whenever a Δ can reasonably discern the nature of the ¶’s cause of action, the compliant satisfies the notice pleading requirement. Dioguardi/Doe
Twombly
· “retires” famous conley language
· Claim must be “plausible on its face” and nudge ¶’s claims from conceivable to plausible.
· “contract, combination or conspiracy” = legal conclusion
o Don’t have to credit it in valuing the complaint
· Parallel conduct is consistent with legal conduct.
Test used in Iqbal: complaint must nudge claim from conceivable to plausible
· When a complaint contains conclusory allegations a court should ignore them.
· After that, a court should decide whether the non-conclusory allegations nudge the claim from conceivable to plausible.
· Plausibility means more than conceivable.
· How should judge decide plausibility? Their judicial experience and common sense
· What’s the textual basis in Rule 8 for this holding? “showing” from 8(a)(2).
Test Steps:
1. Identify the elements of the cause of action, ignore any allegations that merely recite the elements of the cause of action.
2. Consider whether the remaining factual allegations are plausible, not merely conceivable. That is, based on the allegations that do not merely recite the elements, do the allegations make the conduct plausible, not merely conceivable? If they are not plausible, the complaint fails to state a claim.
Iqbal and the Future of Pleading
· Complaint must state “sufficient factual matter… to ‘state a claim that is plausible on its face.'” (apply two-part test)
· Twombly/Iqbal did not overrule Rule 8(a), Conley or any other precedent, though it did “retire” Conley’s most famous sentence.
o a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the ¶ can prove no set of facts in support of his claim which would entitle him to relief
· Forms should suffice…until repeal of Rule 84
· Isqbal should particularly impact a subset of cases
o Where other side holds the facts
o Where state of mind is important
· Increased motion practice.
Chapter 14 (469-518) Responding to the Complaint or Not
· A Δ who fails to respond to the complaint within the time limit set by the Rules is subject to an entry of default when that failure is shown by affidavit or otherwise.
· A default judgment admits the facts stated in the complaint, but a default judgment nether admits the facts are sufficient to establish a defendant’s liability nor the amount of damages or other remedies.
o After entry of default, on motion, the clerk may enter judgment when a ¶’s claim is for a sum certain. 55a
o Alternatively, if a ¶ seeks a default judgment for an unliquidated sum, the court may enter judgment after finding that it has jurisdiction, that service was properly made, that the admitted facts establish liability, and that the relief sought has been established by evidentiary hearing, accounting, or other investigation. 55b
· Obey the omnibus motion rule!
o A Δ is not required to file a pre-answer motion under Rule 12, but if she does, she must consolidate all the Rule 12 defenses and objections then available to her in a single omnibus motion, and she may not thereafter make a second pre-answer motion except to dismiss for lack of SMJ.
· Beware the waiver trap!
o If a Δ omits the Rule 12b2-5 defenses from her pre-answer motion or from her answer, whichever she files first, she waives the omitted defense.
o If Δ omits the Rule 12b6, 7 defenses, she may still make them in any pleading or post-pleading motion until the close of trial.
· Rule 12b6 motions assume as true the well pleaded allegations of the complaint. If a Δ introduces supporting factual matter not alleged in the complaint, the court accepts that matter, then the motion is converted under Rule 12d into a Rule 56 summary judgment motion.
· Answers can include admissions and denials, Rule 12b defenses, affirmative defenses (which provide excuses why a Δ is not liable even if the facts alleged in the complaint are established), and new claims such as counterclaims and cross claims.
· A ¶ can test the legal sufficiency of a defense by moving to strike it under Rule 12f, which is decided under the same principles that the court uses to decide Rule 12b6 motions to dismiss for failure to state a claim.
Common Responses to Complaint
Δ is served with a complaint? How can she respond?
· Default/Default Judgment- Rule 55
55a: Go to clerk and ask them to enter default
55b: get default judgment: (1) clerk gives sum certain, (2) court gives unliquidated sum
· Rule 12(b) Motions (Pre-answer motions)
o SMJ
o PJ
o Venue
o Notice/Service of Process
o Failure to state a claim (legal/factual insufficiency)
· Answer
o Types of Responses to Allegations – See FRCP 8(b)
· Admit
· Deny
· Lack Sufficient Information
o Affirmative Defenses. FRCP 8(c)
o Claims by Δ (e.g. counterclaim)
o No reply is needed, unless court orders one.
o Within 21 days of service- 60 days if service was waived
Contents of an Answer
· [leftover] Rule 12(b) defenses
· Denials and admissions
· Affirmative defenses
· counterclaims
Rule 12g states that Δ must combine all Rule 12 motions (PJ, smj, venue, notice) at once.
If not all made in first response, the ones not used are waived.
If you have defenses, must raise them in the beginning (first response) or you waive them.
· “Disfavored defenses”- 12 (b)(2)-12(b)(5)- waived if not made in first response whether a pre-answer motion or an answer. (12(h)(1))
nt is filed no more than 21 days after the original pleading was served, or after a responsive pleading or motion under Rule 12 b, e, or f was served, whichever is earlier. An amendment without leave (“as a matter of course”) is effective on filing.
· In all other cases, the amending party must file a motion for leave to amend, accompanied by the proposed amendment. Leave is in the court’s discretion, which turns on the amending party’s reason for amendment, its diligence, the number of prior amendments by the same party, “preparation prejudice” to the opposing party (and not just the “merits prejudice” resulting from the change in litigating posture), and the futility of the amendment (or failure to state a claim or defense or bar by an affirmative defense). Preparation prejudice is the key factor, however, and the Rule instructs the court “should freely give leave when justice so requires.”
· The likelihood of preparation prejudice increases as the trial date approaches and is often near its maximum at trial. Nevertheless, pleadings can be amended even during and after trial by express consent or over objection, if the objecting party cannot show prejudice from the amendment.
o In addition, an issue tried by implied consent—which a court may infer from a party’s failure to object to evidence relevant only to the new issue, outside the pleadings—will be treated as if it had been raised by the pleadings. “de facto amendment”
· When an amendment presents a claim after the relevant statute of limitations has run, the amendment is time-barred (and therefore futile) unless it “relates back” to the date of a timely original pleading—that is, the amendment is treated as if it were backdated to the date of the pleading it amends.
· Amendments asserting claims or defense among the parties to the original pleading relate back when the claim or defense arose out of the same conduct, transaction, or occurrence set out in the original pleading.
· Amendments changing a party or the naming of a party but seeking recovery for the same events as the original complaint relate back when the party to be brought in by the amendment:
o Receives such notice that it would not be prejudiced in defending on the merits,
o Is or should be aware that the action would have been brought against it but for a mistake concerning the proper party’s identity, and
o Received the notice within the limitations period or 120 days (or such additional time for service as the court allows) after the filing of the original complaint (the extra time allows for services as provided by Rule 4m).
· A “mistake concerning the proper party’s identity” can be a misnomer or lack of knowledge of the party’s amenability to suit, but does not include a deliberate, knowing decision not to name the party in the original pleading. The courts are divided as to whether mistake an include ignorance of the identity of the omitted party.
When can parties amend their pleadings? Depends on whether the amendment occurs:
· Before the statute of limitations expires. See Rule 15(a)
o Some are as of right. Rule 15(a)(1)
· As a matter of course-don’t need permission to amend
· Simplicity, not much work has been done-not wasted time
o Rest are discretionary (court must decide. Rule 15(a)(2).
