Civil Procedure Outline - Pleading

    **Abridged Pleading**

  1. Rule 8(a) created the liberal notice pleading standard, requires only "a short and plain statement of the claim showing that P is entitled to relief."
    • Evolution of requirements to survive Rule 12(b)(6) motions (test of legal sufficiency of the complaint, not evidentiary sufficiency)…
      • Complaint should not be dismissed unless P can prove "no set of facts" in support of the claim that would entitle him to relief. (Conley)
      • Complaint that fails to cite a statute or to cite the correct one, in no way affects the merits of a claim. (Northrop)
      • Complaint that follows 8(a)(2) can still be dismissed if it fails to state a legal claim. (Kirksey)
      • Complaint must have "enough facts to state a claim to relief that is plausible on its face," must cross the line from "conceivable to plausible". (Twombly)
      • Complaint cannot be comprised of only "conclusory statements …that do not have to be assumed as true." (Iqbal)
    • Heightened pleading standards
      • Rule 9(b) requires that "the circumstances constituting fraud or mistake must be stated with particularity."
      • If a heightened pleading standard isn't required by Rule 9(b) or expressly by statute, there probably isn't one (Leatherman)

**Full Pleading**

  1. Liberal Pleading Standard and Complaints
    1. From Rule 8(a), the complain must contain "a short and plain statement" of the court's jurisdiction, of the P's claim, and a demand for relief.
      1. Each allegation must be simple, concise, and direct. No technical form is required.
      2. Pleadings must state a claim on which relief may be granted.
      3. From Conley v. Gibson, all the Rules require is "a short and plain statement of the claim showing that the pleader is entitled to relief."
        1. Twombly refined this a bit and requires a bit more out of pleadings. "We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the Ps have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed."
          1. Two working principles underlie Twombly. First, the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements. Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense.
          2. This was a huge win for Ds; this pleading standard created a wave of "Twombly motions."
        1. Iqbal held that Rule 8 through Twombly requires more than just conclusory statements. Since these statements do not have to be assumed as true, there was nothing stated in the complaint which entitled Iqbal to recovery.
    1. Rule 9(b) tries to protect a defending party's reputation from harm by setting a heightened pleading standard for certain complaints in the areas of fraud and mistake.
      1. Some courts have also required heightened pleading standards for cases of libel, slander, and defamation.
      2. Leatherman, SCOTUS ruled that the court could not invoke a heightened pleading standard for 42 USC 1983 civil rights cases (use summary judgment and control of discovery to weed out unmeritorious cases, not pleadings).
      3. If a heightened pleading standard is not required by Rule 9(b) or by statute, you most probably don't need one.
    1. Rule 11(b) requires that the attorney has performed an inquiry reasonable under the circumstances to ensure that the factual contentions of the complaint have proper evidentiary support.


  2. Defendant's Answers
    1. From Rule 8(b), the D must admit or deny each allegation in the complaint.
      1. A denial may also be based on the D's lack of knowledge or information sufficient to form a belief about the truth of an allegation.
      2. A failure to deny an allegation is treated as an admission. (King Vision, demand proof = admissions of guilt!)
    1. The answer must also contain any affirmative defenses (Rule 8(c)) or counterclaims (Rule 13(a)).


  3. Rule 12(b) Motions to Dismiss
    1. D must file these motions before filing his answer.
      1. Lack of subject matter jurisdiction
      2. Lack of personal jurisdiction
      3. Improper venue
      4. Insufficient process
      5. Insufficient service of process
      6. Failure to state a claim upon which relief can be granted
        1. Failure to State a Claim (Rule 12(b)(6)) (see Twombly, Iqbal)
          1. The purpose of a motion to dismiss for failure to state a claim is to test the legal validity of the P's allegations, not their factual truth.
            1. Court does not ask whether the P is likely to prove her factual allegations.
            2. Instead, Court assesses the legal validity of the claims asserted.
          1. In ruling on a failure to state a claim motion, court must assume that the facts alleged in the complaint are true.
            1. The question is: If all the facts are true, do they set forth a claim for which the court could grant P some kind of remedy?
        1. From Northrop, In ruling on a Rule 12(b)(6) motion, the failure in a complaint to cite a statute or to cite the correct one, in no way affects the merits of a claim."
        2. From Kirksey, a complaint that followed 8(a)(2) was still dismissed because it failed to state a valid legal claim.
        3. Northrop and Kirksey can be reconciled since the burden of identifying a legal theory shifts form the P once the D makes a 12(b)(6) motion and plausibly demonstrates that there is no legal theory available to provide relief under the facts asserted.
      1. Failure to join a party under Rule 19