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Civil Procedure I
University of Toledo School of Law
Pursley, Garrick B.

Modern Pleading

Common Law
Code Pleading (fact pleading)

1. What facts necessary, how to plead them.
a. Legal conclusions. Not enough.
b. Ultimate facts- those entitling you to legal relief- essential to fact pleading.
c. Evidentiary facts- relevant but not essential to the matter- need not (do not) plead.

Pleading Under the FRCP: The complaint must include:

1. caption- name of court, title of action, file #. Complaint must include names of all parties. Rule 10(a) Form 1
2. short, plain statement of grounds upon which jurisdiction depends, Rule 8(a), Form 2 (note Rule 84: forms contained in appendix sufficient under rules)
3. “Notice Pleading”: short and plain statement of the claim showing the plaintiff is entitled to relief” 8(a)(2).
Dioguardi- (pg. 502)- No pleading requirement of stating facts sufficient to constitute cause of action, only short, plain statement showing entitled to relief… “However, inartfully stated plaintiff has disclosed his claims. “Noted 126 standards take P’s allegations as true, construe in light most favorable to P.

Conley: SC states: Rules require only that a short, plain statement of cliam that gives D fair notice of claim and grounds on which it rests.

Motions one must get by

12(b)(6)- failure to state a claim upon which relief can be issued (see Dioguardi, Conley, and Garcia)
· construed in light most favorable to plaintiff, including inferences from facts
· all doubts resolved in plaintiffs favor
· plaintiffs allegations presumed to be true for purposes of this motion
· if P could make case, don’t dismiss
· Only granted if it is a certainty that plaintiff is entitled to know relief under any set of facts

12(e)- more definite statement (clarify)
· -Use this if it is so vague or ambiguous that a party cannot reasonably be required to respond
o This motion is frowned upon by the courts

12(f)- motion to strike due to redundant, immaterial, or

Burden of pleading: Generally same as burden if production at trial. So:
· P has burden to plead elements of c of a (inferred)
· If D raises affirmative defense, P must respond usually in a reply; not required to plead nonexistence of every defense (well pleaded complaint rule)
Exceptions
· Alleged non payment, in slander cases must introduce evidence that remarks were made, were published, and injury resulted there from, Rule 9(c), some jurisdictions make P plead that they used due care
Exceptions to “notice pleading”
· Rule 9(b): In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally. According to DENNY (pg.512), Rule 9(b) is met when there is sufficient identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer to the allegations.

Heightened pleading in complex cases

· securities fraud per per PSLRA p. 515, Dura p. 516
· Other? Shouldn’t be after Leatherman and Swierkiewicz: 9a cites exceptions to Rule 8: mistake and fraud. Expressio Unius est Exclusio Alterius.
· But courts consider in- antitrust, civil rights, CERCLA, copyright (see from 17), RICO (racketeering influencing corrupt organizations)
· Take note of rule 8(e) and how it is restricted by 11

Alternative and inconsistent allegations
· ok. (last sentence 8(a), 8(e)(2), but subject to rule 11

Pleading damages: 9(g) When items of special damage are claimed, they shall be specifically stated. If not?
· part of prima facie case: dismissed
· otherwise, won’t get damages
· General damages: necessary, inevitable result of injury alleged in the petition. Ziervogel. These are natural, expected result

plaintiff can prove no set up facts in support of his claim which would entitle him to relief.
· Complaint doesn’t fail because part doesn’t state a claim. American Nurses (pg.534).
2-5 are waived if not brought up in first motion
c. 12(c) judgment on pleadings- after all pleadings have been filed; treated like 12(b)(6)
d. 12(b) or 12(c) with infor outside the pleadings becomes SJ, 56
3. Answering the complaint
· Admit- Affirmatively admit or fail to deny. 8(d). Takes issue from factfinder and is conclusive at trial.
· Deny
· General denial (of whole complaint or just a paragraph or portion). Dangers: Rule 11, Zielinski (pg.541), (information about identity). Permitted under rule 8(b), not encouraged.
· Better: specific- admit part and deny part
· Improper forms of denial
· to deny you are with out knowledge when it is presumptively within your knowledge
· negative pregnant
· Answering in alternative-
· WOK- reasonable investigation necessary
· Affirmative defenses- must be set forth in answer or D loses right to raise them. 8c. (but amendments granted, see rule 15).
1. Compare denial “yes, but”… “no, and…”
2. 8(c) examples
3. Rule 9 examples: capacity, fraud, mistake, CP
4. Example from cases: Ingrahm (pg.562)
5. Other egs: Test- need a logical relation and don’t want any unexpected surprises
· Reply: 7(a)
Pleading complaint, answer, reply to counterclaim (CC), answer to cross claim (XC), 3P complaint answer. No other EXCEPT court may order a reply to an answer or 3P answer.