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Civil Procedure II
University of Toledo School of Law
Klein, James M.

Civ Pro II Outline

Functions of Pleadings

1. Give notice

2. Deliver Facts that each party believes to exist

3. Narrow the issues of Fact and Law

4. Provides means of separating baseless claims and substantial claims

The federal requirement- the pleading only has to give fair notice to opposing party as to what the claim is, the facts of these cases will come up in discovery.

Pleadings want ultimate fact and not evidentiary, but there is not exact definition of what is evidentiary and what is ultimate fact.

Rule 7. Pleadings Allowed; Form of Motions

(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

Rule 8 (a): talks about claims for relief. You need 1. a short and plain statement of the grounds upon which the courts jurisdiction depends (let the court know why they have jurisdiction) 2. a short and plain statement of the claim showing that the pleader is entitled to relief (give defendant notice of complaint) 3. a demand for judgment for the relief the pleader seeks (what relief do you want). Relief in the alternative or several different types may be demanded.

12 (b) 6: Dismiss for failure to state a claim in which relief can be granted.

All that is required in your claim is that you give fair notice to defendant of what the claim is.

12 b 6 just attacks the face of the pleading (complaint).

Defendant must know about the transaction that occurred with the plaintiff

Every claim has elements to it and will have a prima facie case.

In your complaint you just have to give notice to the person being sued, of why they are being sued it doesn’t have to be a prima facie case.

Its very hard to get a case dismissed on a 12 (b) 6 dismissal

Pleadings regarding privilege

1.You need not plead every element of a prima facie case

2. A conditional privilege will not be grounds for a 12 (b) 6

3. A absolute privilege will be grounds for a 12 (b) 6 motion

Burden of plead- sets out what a plaintiff has to plea, need to give notice to what the nature of the lawsuit is

Burden of proof- who ever pleas, if it goes to court, must present evidence to show action occurred. Who ever has burden of pleading has the burden of proof

You attack a pleading when the plaintiff doesn’t state a claim is by a 12 (b) 6 motion

12 (e)- make a plea more definite and certain

Exceptions to Rule 8(a), Pleading special matters

9(b)- A party who pleads fraud or mistake must plead these types of cases with particularity.

A 9 (b) has to be plead more specific then a 8(a) but you are not required to show evidentiary facts and make a prima facie case, just have to show more specifically what the cause of action is

Alternative and inconsistent allegations

You are allowed to plead inconsistent theories against the defendant.

Courts allow this because you don’t know the full truth at the beginning of the case and discovery allows for more facts to figured out

8 (e) 2- allows pleading in the alternative

Rule 11- requires lawyers and parties to plead in good faith

Rule 10 (b)- when you make allegations of claim or defense, do it in numbered paragraphs. The paragraph as far a practicable will be limited to a statement of a single set of circumstances.

10 (b) also has you number each claim.

The more facts you can get agreed upon then the faster the trial will go.

Pleading Damages

9 (g)- You have general damages (don’t have to allege these damages, and in trial you can prove it with no pr

he exception of subject matter jurisdiction

A 12 (b) 6 motion if granted, will mean that the case can’t be refilled and merits argued. The exception is if the court grants the motion without prejudice.

A 12 (b) 6 attacks what is in the 4 corners of the complaint. You attack what is on the face of the complaint you can’t bring in extra evidence.

Given that all the facts in the complaint are true and you give all the benefit to the plaintiff, but there is no complaint in which relief can be granted, you file a 12 (b) 6 to dismiss the complaint as a whole.

If you present new facts and material in order to dismiss for failure to state a claim, then it isn’t a 12 (b) 6 but instead will be treated as a rule 56 summary judgment

If any 12 motion is filed within 20 days of service under rule 12 (a) 4 (A) if the motion is dismissed by the court, the responsive pleading shall be served within 10 days after notice of the court’s action.


What is include in a answer

1. Admissions and denials
2. Affirmative defenses

What is the advantage of doing a 12 b motion or any type of motion?

The case will be over quicker than filing a answer and going through discovery.

A 12 b motion must be sent 20 days after complaint is served. 12 (a) (1)

If the defense want more time to file a response he can ask the opposing attorney for more time, this can be for motion or an answer.

When you file a motion you also submit a brief of why you are filing this motion.

The plaintiff will then file a brief of memo in opposition to the motion.