Select Page

Civil Procedure I
West Virginia University School of Law
Rhee, William

 
 
Civil Procedure 1 – Rules – Rhee Spring 2013
 
 
I. Pleadings
 
A. The Complaint
 
Rule 7
(a)    Only pleadings allowed are: complaint, answer to complaint, answer to counterclaim, answer to crossclaim, third party complaint, reply to an answer (if court ordered)
(b)   Motion must be in writing unless made during hearing or trial, state with particularity the grounds for seeking the order, an state the relief sought
 
“Notice Pleading” The Conley Standard:
·         “The accepted rule is that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”
o   Requires pleading of some facts
 
Rule 8 (a) Claim for Relief—A pleading that states a claim for relief must contain:
1.      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
2.      A short and plain statement of the claim showing that the pleader is entitled to relief
3.      A demand for the relief sought
·         Plaintiff must do more than make a general reference to the nature of the action (Twombly)
·         Must allege sufficient facts to make a “plausible” chance of winning the case (Twombly)
·         Mere speculation is not enough (Twombly)
 
Pleading “With Particularity”
 
Rule 9 Pleading Special Matters
(b) Fraud or Mistake – In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
·         Only things in rule 9 can must meet higher pleading standard
 
Leatherman v. Tarrant County Narcotics
The Supreme Court held that federal court may not apply “heightened pleading standard,” more stringent than usual pleading requirements, in civil rights cases alleging municipal liability under § 1983.
·         Made stricter standard for pleading under the discrimination statute in question
 
Twombly
·         Dismissal for failure to state a claim upon which relief may be granted does not require appearance, beyond a doubt, that plaintiff can prove no set of facts in support of claim that would entitle him to relief, abrogating Conley v. Gibson
·         Raised standard for pleading from possible to plausible
 
Iqbal
·         Requirement that pleading contain a short and plain statement of claim showing that pleader is entitled to relief does not require detailed factual allegations, but demands more than unadorned “the defendant unlawfully harmed me” accusation
·         To survive motion to dismiss, complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face; claim has “facial plausibility” when plaintiff pleads factual content that allows court to draw reasonable inference that defendant is liable for misconduct alleged.
·         “Plausibility” standard, for complaint to survive motion to dismiss for failure to satisfy short and plain statement requirement, is not akin to probability requirement, but asks for more than sheer possibility that defendant has acted unlawfully.
 
After Iqbal:
1.      A plaintiff must plead plausible facts
a.       More than just possible
2.      A complaint must be dismissed only if there is insufficient facts to make it plausible that the plaintiff could win
 
Starting Point for Evaluating Any Claim: Identify the elements of the claim
 
Steps in the Iqbal Test:
1.      Disregard the conclusory statements that aren’t well-pled
a.       Well-Pled – More than a mere conclusory statement; more than a threadbare recital of the elements of the cause of action”
2.      Scrutinize the remaining factual allegations in the complaint and determine if they create a plausible cause of action
 
Rule 8(d)
1. Each allegation must be simple, concise, and direct
            2. Alternative statements are allowed, and a party must only sufficiently plead one of        them
            3. A party may state as many separate claims or defenses as they want, regardless of          consistency
·         Affirmative defenses are automatically denied by plaintiff
 
Rule 11(b)
By bringing a pleading to court, attorney certifies:
1.      It is not being presented for an improper purpose (harassment, unnecessary delay, needlessly increase litigation cost)
2.      Claims are warranted by existing law or for non-frivolous argument modifying/reversing
3.      Factual contentions have evidentiary support or likely will after discovery
4.      Denials of factual contentions are warranted by evidence or by belief or lack of info
 
B. Preliminary Injunctive Relief
Rule 65 – Injunction or Restraining Order
 
C. Motions to Dismiss under Rule 12
Doing Nothing
Rule 55(a) – Entering a Default: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,

– Affirmative Defenses (listed)
·         These don’t argue allegations, but are excuses from liability if allegations are true
·         Failure to raise an affirmative defense makes it waived; unless court allows amend
o   In determining amendment, courts consider knowledge of facts and prejudice of party who wants amendment
·         Mix-ups in stating as counterclaim or defense can be corrected by court if needed
 
Rule 12(f) motions to strike can be used by plaintiff against defenses, same as 12(b)6
 
General denials rarely work, because allegations include things like principal place of business, location, incorporation, etc.
 
If you don’t have all the info, just admit it and prepare to amend it
 
II. Ethical Standards in Filing Pleadings and Motions
Rule 11 –
1.      Attorney must sign with email, address, and telephone.
(b) By bringing a pleading to court, attorney certifies:
1.      It is not being presented for an improper purpose (harassment, unnecessary delay, needlessly increase litigation cost)
2.      Claims are warranted by existing law or for non-frivolous argument modifying/reversing
3.      Factual contentions have evidentiary support or likely will after discovery
4.      Denials of factual contentions are warranted by evidence or by belief or lack of info
(c) Sanctions
1.      If 11b has been violated, court can sanction.
2.      Motion for sanctions must be made separately, delivered, and gives sanctioned party 21 days to amend to retract
3.      Court acting independently must have party show why they didn’t violate 11b
a.       Sua Sponte, no grace period so court has to use extra care in sanctioning on this
4.      Must be limited to what would deter repetition of violation
5.      Represented party can’t be sanctioned under 11b2 and court cant sanction without motion unless under 11c3
6.      Order for sanction must describe sanctioned conduct
(d) This rule doesn’t apply to discovery
 
Must have factual basis at the time the paper is presented