I. Complaints
A. Rule 8(a) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.”
B. 3 problems with drafting a claim
1. substantive validity
a. do the given facts comprise entitlement to relief?
b. major premise (the law)
1) ex: “if the ∆ insults the π” and “if the π suffers anguish” and “unless the π provoked the insult” then π is entitled to compensation.
c. minor premise (the facts)
1) ex: ∆ insulted π, π suffered harm.
2. Burden of allegation
a. generally to the π for “if” to the ∆ for “unless”.
1) rule 8(c) lists most of the “unless”, but otherwise must look to case law for burden of allegation.
b. policy considerations
1) who has greater access to the proof (policy)
2) who has most efficient access to the proof (convenience)
3) who is causing the burden (fairness)
3. specificity of the allegation (how much detail) – “simple, concise, and direct.” – Rule 8(e); “pleadings shall be construed as to do substantial justice” – Rule 8(f) “plaintiff need not plead evidence” – Sierocinski
a. “code” states require more rigid pleadings than “rule” states.
b. goals of specificity:
1) determining the proper legal theory
2) determining the relevance of evidence
3) isolating legal issues for early determination
4) eliminate factual issues early
5) determining the bounds of res judicata
c. specificity is not needed where:
1) liberal rules of discovery – See Sierocinski
2) extensive pretrial motions/conferences
3) issue is not complicated
d. disfavored claims such as fraud, libel and deceit are often abused and hard to prove so there are special pleading requirements in Rule 9(b)
C. Definition of “claim” (legal theory or natural grouping of events?)
1. Rule 8(e)(2) allows alternate claims regardless of consistency
a. can state the same claim in several counts (redundancy)
b. can state different claims in the same count (joining under Rule 18(a).)
c. thus, the issue of the definition of claim is minimized for pleadings, assisting a π who is unsure about what he will have to prove after discovery.
2. Liberality of 8(e)(2) is subject to the obligations of rule 11.
a. 11(a) requires the attorney to sign the pleadings averring that they are not frivolous and are based on a “reasonable inquiry.” – See also Mohammed.
b. 1993 amendments relaxed sanctions:
1) making them discretionary
2) provided for a “safe harbor” of withdrawing frivolous motion/claim within 21 days after service by opposition of a motion for sanctions.
3) sanctions paid
12(f) strike immaterial or scandalous matter.
C. Two other actions/objections:
1. Counter-claim – rule 13
2. Implead – rule 14.
D. Answer or Motion??
1. All defenses and actions/objections listed above may be made by answer, except 12(e)-(f) which must be by motion.
2. Rule 12(b)(1)-(7) may be made by motion, before answer, at the option of the pleader.
3. Denials (8(b)) and Affirmative defenses (8(c)) must be in the answer, or are waived unless amended “of course” (Rule 15(a)).
a. this is not explicitly stated, but it follows from the structure of the waiver operation of 12(g) as it applies to 12(b) motions. (consolidation of defenses).
E. Preservation/Waiver of defenses:
1. Consolidation of defenses: 12(g)
a. all 12(b) defenses “then available” are to be joined into a single pre-answer motion, or they are waived (except 12(b)(6)-(7) which may be raised later).
a. bottom line: party is allowed only one pre-answer 12(b) motion (except super defense 12(b)(1))
2. Disfavored defenses: 12(h)(1)
