Select Page

Civil Procedure I
University of Toledo School of Law
Lammon, Bryan

Lammon

Civil Procedure Practice & Pleading

Fall 2016

Basic Pleading

Rule 8(a): Claim for Relief. A pleading that states a claim for relief must contain:

A short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
A short and plain statement of the claim showing that the pleader is entitled to relief. Rule 8(a)(2).

New framework for 8(a)(2) test:

Twombly-Iqbal Two Prong Test:

Are the allegations well-pleaded?

(more than conclusory? Not a restatement of elements of claim or a recital? If well-pleaded → taken as true)

Are the well-pleaded allegations plausible?

Consider alternative explanations, judges use their common sense

A demand for relief sought. May include relief in the alternative or different types of relief.

Note: look to substantive law when making pleading, this is where you find your claim which entitles you to relief. Also, it is not a judge’s job to find your law for you.

Elements of Pleading:

Claim for relief (short, clear)
Demand for relief (ask for something!)

Purposes of pleading:

Give notice of nature of claim or defense
State facts
Narrowing issues for litigation
Help the court throw out bogus claims

Insufficient claim will be attacked in federal court by defendant’s motion to dismiss for failure to state a claim. Rule 12(b)(6)
Note: You need not make argue law at this point. If it can be understood and is not superfluous, the pleading will be sufficient under Rule 8.
Conley standard: “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove not set of facts in support of his claim which would entitle him to relief.”

“Notice pleading”: a bare statement of a claim suffices under the rule in favor of surviving a motion to dismiss.

Rule 8(d): Pleadings to beConcise and Direct; Alternative Statements; Inconsistency
Rule 8(e): Construing Pleadings. Pleading must be construed so as to do justice.
Rule 9(b): Heightened pleading standard for fraud or mistake. In alleging fraud or mistake, must state with particularity the circumstances constituting fraud or mistake.

“Well-Pleaded” = not entirely conclusory

Twombly & Iqbal

Are the allegations well-pleaded?

(more than conclusory? Not a restatement of elements of claim or a recital? If well-pleaded → taken as true)

Are the well-pleaded allegations plausible?

Consider alternative explanations, judges use their common sense

Rule 12 Motions

D can answer complaint one of 3 ways:

Default (doing nothing)
Rule 12 Motion

Rule 7
Default (do nothing)

Rule 55(a)?: failure to respond → motion for default
After default is entered → P can seek default judgment Rule 55(b)(1)?

Rule 12:

Defense can file Rule 12(b) motion and assert certain defenses (SMJ, PJ, Rule 19, etc.) aka Pre-Trial Motion
Rule 12(e): Motion for a more definitive statement (if unintelligible)
Rule 12(f): motion to strike (if scandalous)
Rule 12(b)(6): motion to dismiss for failure to state a claim upon which relief can be granted
Rule 12(g)(1): motions can be joined (*in fact, failure to consolidate can waive Rule 12 claims)

Note: Rule 12 motions are pre-answer motions.

Adequately pled?

Sufficient facts? (equivalent to notice)

State a defense? (look at factual allegations for jury to find the defense)
Note: To allegations → must admit or deny (or claim lack of knowledge/information) defenses deny or dispute facts

Rule 11

Rule 11 Elements:

No Improper Purpose
Claims, defense and legal contentions are warranted by existing law or nonfrivilous argument to change law
Factual contentions have evidentiary support (or will soon)
Denials or facts are warranted

Rationale: to not waste time, $, resources
Bad faith not required, good faith is not a defense
Must undertake inquiry into law % evidence (reasonable) (balance cost, time)
Presenting a paper certifies it has proper purpose (legal basis, evidentiary report at the time)
No duty to correct ater info is required(?) but cannot continue to advocate what is insupportable
Must disclose adverse authority, but you can argue nonfrivolously to change it
Presenting certifies no improper purpose (nonfrivolous can be improper purpose if inferred from objective facts.

21 days to withdraw – safe harbor rule
Court must choose least severe
Courts can use inherent authority to punish bad faith litigation conduct and statutory authority under U.S.C. 197 to punish unreasonably and vexatiously “multiplied” litigation.