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Civil Procedure II
University of Toledo School of Law
Pizzimenti, Lee Ann

Civil Procedure II- Professor Pizzimenti Fall 2010

Modern Pleading
A.      Common Law
B.      Code Pleading – Fact Pleading
·         Ex: Gillispie, “plain and concise statement of the facts constitution a cause of action” The court said what was needed: you need the what, when, where, who, what – we need more than just conclusory legal action that there was an assault; we need the facts.
·         Ex: CA: “Include a statement of facts constitution a cause of action, in ordinary and concise language.”
Code Pleading – Fact Pleading:
What facts necessary, how to plead them:
Legal conclusions – not enough – need to have statements that support each element of the cause of action.
Ultimate facts – those entitling you to legal relief – essential to fact pleading – NEED TO HAVE THIS! Look to see if there is a prima facie case and the facts supporting. Don’t put facts that would put you in a certain “box.”
Evidentiary Facts – relevant but not essential to the matter – need not (do not?) plead. When you have too many facts which will cause confusion – complaints however, do not get dismissed because there are too many facts.
C.       Pleading Under the FRCP: The Complaint:
·         Must Include: Note Rule 84: look to see if there are Forms Sufficient under rules- look at page 1181 (they’re not just examples they’re sufficient!). As long as your complaint looks like the form complaint then it’s okay!
1.       Caption – name of the court, title of the action, file #, Complaint must include names of all parties – Rule 10(a), Form 1, page 1181
2.       Short, plain statement of grounds upon which jd depends, Rule 8(a), Form 2. The court wants to know if they have subject matter jd upfront.
3.       “Notice Pleading” – Short and plain statement of the claim showing the P is entitled to relief. 8(a)(2) – what we’re looking for when look at the federal rules!
a.       Recall Rule 84: Use Forms – see fo0rms 10-19 (pages 1185-90)
b.      Style: See Rule 10b
c.       Content – how much content is needed? See Dioguardi
i.            Dioguardi: No pleading requirement of stating facts sufficient to constitute cause of action, only short, plain statement showing P is entitled to relief…” However inafrtfully state, P has disclosed the claims.” 12b6 standard: take P’s allegations as true, construe in light most favorable to P. There was an attempt to get away from fact pleading. Twombly, Iqbal: overrule no set of facts – they get rid of the fact. Once we see what facts are we’ll give them due difference – see below.
ii.            Conley: Rules require only that a short, plain statement of claim that gives D fair notice: Not dismissed unless appears beyond doubt that P can prove no set of facts in support of claim of relief. Supreme agreed with Dioguardi, and then stated that a claim above. Looking at the complaint and the allegations, and everything is true, will be dismissed if there is no claim being made.
iii.            Swierkowicz: Rule 8 applies to all except 9b; expressio unius est exclusio alterius (expression of one excludes the others). Rule 9 says that you have to do more when dealing with cases of fraud and mistake. Rule 8 will apply notice pleading except in cases of rule 9b (fraud and mistake) and use the statutory interpretation tool. The court said that we can’t accept heightened pleading statements. 9b says that you have to plead more facts when dealing with fraud or mistake. Expressing this idea in 9b means that the rule does NOT apply in other situations. Look at page 524
1.       You can file for a more definite statement if P doesn’t have all the facts in. Rule 12e
2.       A claim lacking merit is resolved under summary judgment – Rule 56
3.       Whether there is fair notice – 8e.
4.       Rejects the argument (which is accepted in Twombly) that lawsuits rejecting will have an overburdened court system Rule 11 Federal rules do not contain a heightened pleading standard
5.       Rule 8a establishes a pleading standard of whether a claim will succeed on the merits.
1.       Generally: Notice but no set facts
2.       Twombly and Iqbal
a.       Overrule ‘no set of facts language’ à requirement of plausible claim. Closest to fact pleading
i.            Need factual content allowing the court to draw inference that D is liable. To determine how much is need they turn to two:
ii.            Not akin to probability requirement; more than sheer possibility. Possible is NOT enough, it doesn’t have to be probable however, just plausible. Number 3 however, seems to be inconsistent with number 2:
Possible    ———            Plausible           ——–    Probable
·         Facts merely consistent with liability are not enough – you have to show that more likely is that your reasoning is right. The problem with this is that it is about burden of proof, doesn’t have anything to do with a complaint.

Twombly:  Two step process to find plausible: Two part test
1.       Separate legal conclusions, which are not entitled to presumption of truth; then
2.       Review well pleaded factual allegations, (assuming that they’re true), to determine whether they’re plausible. This means that they’re more than conceivable, or plausible.
1.       Context specific –
2.       Judges relies on experience – A and B are some sensibility
3.   Need Complaint sufficient to get past motions
1.       12(b)(6) failure to state a claim on which relief can be granted.
·         You have failed to state a claim, you have under 8(a)2 or have not under 12(b)2
·         Nothing here to assert a prima facie case (in 12b6 motion)
·            Elements are not proven
·            Presumed allegations true – this was not taken away from Iqbal!
·            Doubts resolved in P’s favor
·            If there are factual issues that need to be resolved 12b(6) will not be allowed.
·            12b(6) happens the most often in comparison to 12(e) and 12(f)
·         Defendant says they have an absolute defense that will cut off your complaint
·            Both of these things happened in Garcia
2.       12(e) more definite statement (clarify)
·         Reasonable adequate to allow prep of responsive pleading
·         If a pleading is so vague or ambiguous that a responsive pleading cannot be prepared, the responding party need not serve a response, but may instead move the court for an order directing the pleader to serve a more definite statement.
·         12(e) is on page 383
·         12e motions are generally disfavored – the court wants you to do discovery first
3.       12(f) strike, redundant, immaterial, impertinent, scandalous claims.
·         You can strike if any of the above happens
·         Used when something outrageous has been said, or clearly problematic they will strike it
·         Not used very often
4.   Burden of Pleading: Generally same burden of production at trial: So
1.       P has burden to plead elements of cause of action and (inferred)
2.       If D raises affirmative defense, P must respond.    Usually in a reply; not required to plead nonexistence of every defense (well pleaded complaint rule).
·         Defendant will have the job of pleading it at trial, and P can therefore reply
·         If P has to respond, it’ll be in a reply or perhaps a proof of the case goes on; through discovery, etc.
·         Well pleaded complaint rule – P is generally not going to require anticipating every defense that D will raise and plead it.
Exceptions to Rule 8(a)(2): Heightened Pleading:
1.       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.  This is one example where in the rules; there is a heightened pleading requirement and has to be done with particularity.
·         courts have different ideas of what particularity means
·         heightened pleading cases involve where the stakes are high – i.e. security fraud –

2(a)(1)(b) -Counterclaim, cross claim = 21 days
·            12(a)(1)(c) – Reply – 21 days after order
·            ***Even though the rule says 21 days, courts will allow extensions if the other party consents (need to ask!)
·            Responding by Motion:
·            12(b) motions: following may at option of pleader may be made my motion – instead of answering you can file 12(b) motion –
2.       1-5 problems not given; rather just need to know
2.       Personal jd 12(b)(2)
3.       Improper venue – 12b3
4.       Insufficiency of process – 12b4
5.       Insufficiency of service of process – 12b5
·            Note 2-5 are waived if not raised in the first responsive pleading 12(h)(1)
·         Failure to state a claim – this defense may be raised in any pleading permitted or ordered (7a), by motion for judgment on pleadings, or at a trial on the merits 12(h)(2)
·            Separate legal claims from factual ones
·            Statement of facts assumed true
·            Dismissed only if fails to state a plausible legal claim (more than possible). Consider context, experience, judicial common sense- what p likes in American Nurses
·            Inferences in favor of P, but if equally consistent, dismiss (as seen in Twombly and Iqbal) – what D likes in American Nurses
·            Complaint doesn’t fail because part doesn’t state a claim – American Nurses – just because some of the claim is bad doesn’t mean the whole thing should be dumped. In American Nurses – they partially granted a 12b motion
1.       American Nurses’ Association v. Illinois  – class action sexual harassment, and title 7 is violated – generally this about is that state pays people in male roles more than traditionally in female classification and if you compare the positions it is not justified by relative/comparative worth.
1.       12(f) –
2.       12(c) – judgment on pleadings – after all pleadings have been filed; treated like 12(b)(6)
3.       12b6 or 12(c) with info outside the pleadings becomes SJ per Rule 56. 12(d)
5.       Joining motions
·            Rule 12 motions may be joined 12(g)(1)
·            Other than (h)(2) 12(b)(6) or 19 or h(3) 12(c) or smj, no additional Rule 12 motion raising defense or objection available to party but omitted may be made. If the information becomes available later, P or D will not be prohibited from filing a defense for objection. Example: filing a complaint, response, and then information becomes available – you have to show that information wasn’t available (not that you didn’t see it).
·         Some courts won’t allow successive 12(b)(6) motions, some do
·         Avoids filing motion after motion
·         If information becomes available later not prohibited from filing defense or objection