Zoldan – Civ Pro I – Fall 2012
There is one form of action—the civil action (Rule 2)
The purpose of CP is to secure the just, speedy, and inexpensive determination of every action and proceeding (Rule 1)
Anatomy of a Law Suit:
2. Motion to Dismiss
4. Motion for Summary Judgment
7. Summary Judgment
A Civil Action is initiated by the filing of the Complaint. A Complaint needs to comply with the Rules of Civil Procedure, which require it to contain “a short and plain statement of the claims showing that the pleader is entitled to relief.” (Rule 8(a)(2))
“Short and plain statement” has been interpreted to mean that a plaintiff’s claim would not be dismissed unless there are “no set of facts that would entitle him to relief” and that complaint provides fair notice to the defendant of the claims against him.
Rule 8 – Complaint:
A. Claim for Relief
1. A short and plain statement of the grounds for the court’s jurisdiction.
Facts must nudge claim from “conceivable” to “plausible”
Court will disregard legal conclusions
2. A short and plain statement of the claim showing that the pleader is entitled to relief.
3. A demand for the relief sought.
Rule 9(b) …must state with particularity the circumstances constituting fraud or mistake.
Conley – Complaint will only be dismissed if there are no set of facts and no notice. Outdated.
Swierkiewicz – The pleading process is to reach the merits of the claim
Twombly – a 12(b)(6) motion, must show a “plausible entitlement” to relief. This plausible entitlement standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” The plaintiff must provide some factual allegations in the complaint that “raise a right to relief above the speculative level.”
· Fair notice is still central
o Facts alleged suggest liability, rather than just being consistent with liability
Defendant will use this motion for a summary judgment. The court will consider the non-moving parties facts. The court will grant the motion if there is no set of facts that the non-moving party can plead that would provide a claim for a remedy.
· Fair notice remains
· Conclusory statements are removed
· Plausibility can’t be neutral (a complaint must be plausible on its face to survive a motion to dismiss.)
How to File a Complaint
Responding to the Complaint
Rule 12 – answer or motion (motions are not pleadings)
(a) Answer or;
(b) Defenses (2-5, use them or lose them)
1. Lack of subject-matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join a party under rule 19
12b 2-5 disfavored (need to be filed before trial)
· When a defendant responds to a complaint they are effectively acknowledging that there isn’t an issue with 2-5
12b 6-7 (see 12 h 2)
12b 1 (raised anytime)
12b 6 “Failure to state a claim” is the only defense that is based upon the merits of the case.
· Meaning: Even accepting all the fact in the compliant as true the plaintiff has alleged no facts for which the law provides a remedy.
· You have failed to claim all the necessary elements for a claim
Judges have discretion to grant a 12(b) motion with prejudice or w/o prejudice.
Four corners of the complaint:
1. Anything the complaint says it accepts as true for the purposes of this motion
12c Taking al
ics of Discovery
Disclosure – Automatic transfers of information that takes place
Discovery – party initiated
Request for production
Request for admission
Which federal rules
From whom is info sought
Party, non-party (a)(1)
What type of info is obtained
Any designated documents
Physical or medical report
Limits on number of frequency of requests
1 day 7 hrs
including oral depositions
Is prior court approval required
What response if party believes that request is improper
Make an objection
Stated with specificity
Respond to each item
Grounds must be stated
ii. Description of all documents, information, etc
iii. Computation of each category of damages
iv. Insurance policies that could cover the liability