Pizzimenti_Civ Pro I_Fall _2010
I. Modern Pleading
A. Common law pleading- Stringent, tedious and narrow, organized writs; had to show you met all requirements of a writ
B. Code Pleading – Came about to relax C.L. pleadings. Requires only that a plaintiff set forth the facts underlying the dispute and showing a right to remedy. (no more need for organized forms)
C. Fact Pleading- the facts constituting the cause of action using the ultimate facts.
§ Ultimate facts – adequate detail but without legal argument. Not too general [conclusions] or too much detail [impermissible pleading of evidence]
D. Notice pleading- a short & plain statement of the claim showing the pleader is entitled to relieve 8(a)(2)
§ Conley v. Gibson
i. Identify the transaction out of which claim arise
ii. Give Defendant notice of the claim
iii. Not dismissed unless it appeared beyond doubt that P could not prove set of facts in support of claim for relief.
§ Twombly & Iqbal
i. Need to plead facts—– set out factual assertions sufficient to support the claim. P needs to state facts supporting a plausible claim.
ii. No conclusions of law; inferences is still for the Plaintiff
iii. Court will use its own experience & common sense to determine if claim is plausible – subjective view
§ Two part Iqbal test
i. Separate legal conclusions that are not entitled to presumption of truth, and then
ii. Review remaining well pleaded factual allegations to determine whether plausible
a. The name of the court
b. The number assigned to the action
c. A designation of the pleadings (complaint for damages)
d. The names of the parties
ii. Jurisdictional allegations —8(a)(1)
a. Grounds showing the subject matter jurisdiction of the fed court is invoked. (X is a citizen of Utah and Y is a citizen of Idaho and the amount in controversy is or exceeds the sum of $75k)
iii. Facts upon which recovery is sought—8(a)(2)-(3)
a. A short and plain statement of the claim showing that the pleader is entitled to relief
i. 10(b)- each claim or cause of action should be set forth in a separate group of serially numbered paragraphs
ii. 8(d)(1) – allegations in the complaint should be simple, concise and direct
iii. 8(d)(2 &3) – Alternative and inconsistent allegations are OKAY
1. Alternative- I’m suing you for battery because no consent and I’m suing you for negligent for same thing
2. Inconsistent – P was unconscious at the time of injury, so doesn’t know which version is true.
b. Pleading special matters – R9
i. Fraud or Mistake- must be stated w/ particularity (who, what, where, when)
ii. General damages- necessary, inevitable result of injury.
iii. Special damages- needs to be pleaded with specificity (medical expenses)
iv. Prayer for relief – A demand for the relief sought (may include relief in the alternative)
– If D defaults, relief granted can’t exceed what is prayed for (can’t exceed ad damnum clause)
– But generally, P is not limited to the relief prayed for, can be more.
– P can amend the amount he prayers through leave of court
v. Signature – R11
è Complaint doesn’t fail if one party fails – will allow amending.
B. Responding to the Complaint
a. Pre-answer Motions – must respond w/in 21 days after being served
i. 12(b) Motions
1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process (problem with the document)
5. Insufficient service of process (documents not served properly)
6. Failure to state a claim upon which relieve can be granted – court will look at the complaint, assume the facts are true and assess whether, even if all the facts are true, the complaint supports a legal claim that would entitle the P to relief. – Is P’s claim PLAUSIBLE?
7. Failure to join a party needed for just adjudication
· 12b1 can be raised any time, even first time on appeal
· 12b6-7 can be raised any time prior to trial or at trail.
ii. Motion for more definite statement 12(e)
– Need to show that the pleading is too uncertain for the D to be expected to frame an answer.
– Once submitted, opposing party has 14 days to obey
– Need to state what details are desired and what the defects are
– These motions are disfavored under notice pleading à but might allow b/c clarification might show that the claim is subject to dismissal.
iii. 12(c) – Judgment on a pleading – can be brought by P or D
1. Can be made any time after the pleadings are closed. Need not await discovery.
2. But needs to be after an answer has been filed.
3. Court accepts all well-pleaded material allegations of the nonmoving party as true, and views all facts and inferences in a light most favorable to the pleader.
4. Will be granted if the pleadings demonstrate that beyond doubt, plaintiff cannot prove the claim and that the moving party is entitled to judgment as a matter of law.
iv. Motion to strike 12(f)
– W/in 21 days after service, party may move to have stricken any insufficient defense, or redundant, immaterial, impertinent, or scandalous matter.
– Done sua sponte or on motion
è Absolute privilege-Can use 12(b)(6)
è Conditional privilege – can’t use 12(b)(6)
i. Denials/Admissions/ Affirmative defenses
2. Deny- failure to deny con
th permission of the court.
iii. “To promote the economical and speedy disposition of the controversy”
E. Provisions to Ensure Truthful Allegations — R11
a. Include within
§ Must be signed by attorney or by the party himself (if w/o counsel)
§ The signor is saying that after reasonable inquiry, the factual contentions have evidentiary support or are likely to have support after discovery [this is if client has no personal knowledge of a certain allegation, can base allegation on “information & belief”].
§ Claims, defenses, and other legal contentions are warranted by existing law
§ Also certifies that it is made in good faith and not for improper purpose (harassment, delay )
i. Although can relyàBlind reliance on the client is seldom a sufficient inquiry
b. Sanctions – court MAY impose
i. Safe harbor – after notice, party has 21 days to fix problem before motion is filed
ii. Either sua sponte or party’s motion
1. If sua sponte, no safe harbor
iii. Limited to what is sufficient to deter repetition of such conduct or comparable conduct
1. Nonmonetary directives
a. Circulate court’s opinion to members of your firm; suspension or disbarment, publication of critical opinion
b. Pay penalty to court
c. By motion, court may assess payment to movant of attorney’s fees
III. Joinder of Claims and Parties
A. Joinder of Claims—- R18
i. A party may join as many claims as it has against an opposing party ( claim, CC, CX, or 3rd party claim)
ii. A party MAY aggregate unrelated claims to meet the 75k requirement
iii. Contingent claims are okay – success on the first is a pre-req for the second.
iv. You need to have subject matter jurisdiction; always ask yourself
Ø Check if there is a federal question 1331
Ø Is there diversity 1332
Ø Is there supplemental jurisdiction 28 USC 1367
Ø 28 USC 1367(b) –
– In any civil action of which courts have original jurisdiction SOLEY on basis of 1332 (Complete Diversity), courts shall not have jurisdiction over claims by Plaintiffs over persons made parties under R14, 19, 20, or 24
– So when bringing parties in, need to ask whether 1367(b) will mess things up.