I) Pleading(Essentially position statements & responses)
A) P’s Opening Move
1) Elements for a Successful Complaint (Rule 8:Modern Pleading)
(a) Short and Plain Statement of Jurisdiction
(i) State citizenship and $$ in controversy (§1332) OR;
(ii) State a Federal Question (§1331)
(b) Short & Plain Statement of the Claim, showing entitlement to relief
(i) Include sufficient facts (not legal conclusions, but facts) to allow the court to infer.
(a) Need not include substantive law or specific CoA.
(ii) e.g. “Hale hit me” would be sufficient, under modern standards, but most will include more to be safe/greedy/forceful
(iii) This simply gets the ball rolling and can be amended later.
(iv) Need not establish prima facie case, P doesn’t need to prove anything, just needs enough to give D notice and get to discovery.
(v) SC ruled that only Congress and Rules Committee have the power to raise pleading standards.
(vi) Exception: PSLRA (Private Securities Litigation Reform Act) which requires more detailed pleading in securities cases b/c discovery is so $$$. There is concern about this though.
(vii) Bell Atlantic case: Naked allegations are not enough for antitrust actions. There must be something more to satisfy 8(a)(2). Must have “plausible grounds to infer an agreement.” Supreme Court says “not enough.” came out last year. SC didn’t purport to change anything about Rule 8(a)(2). SC said they were taking the law back to what they had originally meant under 8(a)(2). Couches this in what it says Rule 8(a)(2) says (cannot rely on naked conclusions or implausible inferences.) ½ of civpro professors think this is a significant change in notice pleading, ½ think it applies only to antitrust cases. “Post-Twombly it may be that you need enough to show that you have a way to prove your claim.”
(c) A Demand for Relief
(i) Less important because 54(c) compels court to grant all relief to which P proves he is entitled.
(a) Need only demand something, but can claim everything.
(ii) Can ask for coercive or declaratory relief.
2) Pleading Special Matters (Rule 9)
(a) 9(b): Fraud or Mistake
(i) Requires a heightened standard of pleading b/c fraud is so damaging to a reputation/ very serious charge.
(ii) In doing so “must state w/peculiarity the circumstances constituting fraud or mistake.”
(iii) “Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally.”
(b) 9(g): Special Damages
(i) To plead special damages, must plead the damage specifically.
(ii) Court wants to avoid surprises to D.
B) Defendant’s Response (Either answers under rule 8 or files a pre-answer motion under rule 12)
1) 12: Pre-Answer Motions
(a) (a)(1)(A): Timing and tolling.
(i) w/in 20 days of service of process
(a) If service waived under 4(d), w/in 60 days of request for waiver sent (90 days if international)
· (a)(1)(B): must answer counterclaim/cross claim w/in 20 days of being served w/counter pleading.
· (a)(1)(C): party must serve reply to an answer w/in 20 days of being served w/an order to reply, unless otherwise specified.
(b) (b): Pre-answer motions, filed before responsive pleadings
1) Lack of SMJ
2) Lack of PJ
3) Improper Venue
4) Insufficient process
5) Insufficient service of process
6) Failure to state a claim upon which relief can be granted
(a) Most common rule 12 motion in litigation
(b) Challenges technical sufficiency of pleading and details (not enough)
(c) Challenges legal sufficiency of complaint
(d) If D files this, court will only look at face of complain and motion.
1. Exception if document is referred to, but not included in complain, can be attached to 12(b)(6) motion.
(e) Court accepts facts of complaint as true and determines if they add up to a claim.
(f) American Nurses Assn: court may not dismiss claim unless P can produce no set of facts that would support the claim.
(g) 12(b)(6): dismissal in Fed Ct. is on the merits unless the court specifies otherwise (dismissed with leave to amend). Judges must give leave if P asks for it and granting it wouldn’t be futile. CL rule: screw up a 2nd time you are SOL; you should get it right.
(h) If D files 12(b)(6), then P should ask for leave to amend.
7) Failure to join a party under rule 19
· Rule 12 motion is optional to raise defenses pre-answer. Once pre-answer is filed, everything is on hold until judge rules on it.
(c) Motion for Judgment on the Pleadings. After the Pleadings (answers) are closed and before trial any party can raise this; I
efore being served w/a responsive pleading, OR;
(b) (a)(1)(B): w/in 20 days of serving the pleading if responsive pleading is not allowed and action is not yet on trial calendar.
(c) CAN AMEND:
1. Before responsive pleading is served
2. w/in 20 days in resp. pleading allowed.
3. P gets to amend once before D answers
4. If D files pre-trial motions, it delays D’s answer until court has ruled on the former, could take months/years.
5. D can amend once as a matter of right w/in 20 days. Simple b/c P doesn’t get a RP.
(ii) (a)(2): in all other cases, party may amend its pleadings only with permission of other party or leave of court (ct. should freely give where justice so requires).
(iii) (a)(3): unless court orders otherwise, any required response to an amended pleading must be made w/in time remaining to respond to the original pleading or w/in 10 days of service of amended pleading, whichever is later.
(b) 15(b): Trial Amendments: If when litigating, opponent begins expanding scope of pleadings, I object. Judge then decides whether to exclude evidence or amend the pleading to conform to the trial.
(c) 15(c): Relation Back of Amendments
(i) (c)(1): When does it relate back?
(a) Can ask court to deem an otherwise properly made amendment to relate back to a prior pleading.
(b) Never use 15(c) before also invoking 15(a), you have to make an amendment to be able to relate it back. Asks court to relate it back to original complaint.
(c) Only needed to make an untimely amendment, timely.
1. Ie. My amendment comes after SOL runs, would need to relate it back.
(d) (c)(1)(A): relates back when the law that provides the applicable statute of limits allows relation back.
1. If this works for me, go no farther. (c)(1)(B) & (c)(1)(C) are minimums; underlying law usually more generous.
