Pleadings

Complaint Rule 8
1) Policy Considerations: pleading is about adequate notice, promoting fairness and accuracy of proceedings over efficiency of proceedings. 2) Filing a Complaint: A. Rule 8(a): Complaint must contain: (1) Short, plain statement of the grounds for the courts jurisdiction Sub. Mat. (2) Short, plain statement of claim showing pleader entitled to relief. - Normal Standard/Notice Pleading - must know why sued. - Generally: The complaint does not have to contain all facts sufficient to establish cause of action, thats what discovery is for. - Does however have to have sufficient facts to establish plausibility of claim. Heightened Standard Rule 9 - Fraud or mistake must be alleged specifically. e.g. Who said what to whom when and for what reason? - Other states of mind may be alleged generally. - Items of special damages (things not usually flow from event) (3) A demand for the relief sought (Remedy) -Doesnt limit recovery. -Types include both monetary and injunctive. B. Rule 8(d)(3): Inconsistent allegations are allowed. TEST: If after a reasonable inquiry, there is genuine doubt as to what the facts are and what the evidence will show, a may plead inconsistent legal theories in the alternative. N.B.: - Must be after a reasonable inquire (req. R11) and must be genuine (R11). - The legal sufficiency of each theory presents its own separate question. C. Must be Legally Sufficient and Factually Sufficient. 1. Legally Insufficient (2 types) 1) Missing an element necessary for the complaint to meet the law. 2) Not missing elements, the law that the complaint applies simply doesnt support relief based upon the claim. - Claim must be recognized under law. 2. Factually Sufficient - Test

Pleadings 1) Accept all facts alleged as true (not legal conclusions) 2) Based on FACTS is there a plausible claim? Generally: - Facts cannot simply show that legal actions are as likely as illegal Not (50/50) chance MUST more plausible than not. - Some fact(s) that point toward illegal behavior or allow it to be inferred. - e.g. If one looks at facts, could we come up with an equally likely legal explanation? If so, factually insufficient. - When some sort of rational for a behavior is an element, thats where legal sufficiency pops up. Legal Elements: 1) Duty, 2) Breach, 3) Causation, 4) Injury/Damages Fact Elements: 1) Duty of , 2) Negligent Driving, 3) => Injury, 4) $100 To Both on Exam: 1) Identify the law. 2) Figure out what the elements necessary for a claim. 3) Are those elements required alleged in complaint? Y Do the elements state claim for relief? Y Move to factually sufficient N Dismiss w/ prejudice N Are they missing? Y Dismiss w/out prejudice. N Dismiss w/ prejudice. 4) Does the complaint contain facts that allege the elements of the claim? Y Factually sufficient, MTD denied N Are they missing? Y Dismiss w/out prejudice. Y, but they cant produce dismiss w/ prejudice. 3) Procedural Standpoint re: Insufficiency 1. Result if Legally Insufficient MTDismiss 12(b)(6) a) If on the face of the CLAIM, there is NO POSSIBLE WAY for to recover under law, then court dismiss with prejudice b) If failed to allege all element of complaint, the court will dismiss without prejudice so can fix and re-file - The court should allow a party to amend complaint to add allegations. 2. Result if Factually Insufficient MTDismiss 12(b)(6) a) If on face of claim, there is NO POSSIBLE WAY for to recover under the law, then court will dismiss with prejudice. b) If complaint is factually insufficient because missing key facts, the court after

Pleadings applying the test of assuming if all facts true and finding no claim, will dismiss without prejudice if possible to fix defective suit. 3. If wants to raise evidence outside of pleadings, then move for summary judgment, not a 12(b)(6). 4) Voluntary Withdrawal => without prejudice Rule 41 1) may dismiss unilaterally before answer filed or moves or summary judgment, OR by stipulation of all parties - Rule 41(a)(1)(A)(i) 2) 1st dismissal is without prejudice 2nd is with prejudice Rule 41(a)(1)(B) - FRCP counts vol. dismissal in State court for the purposes of this rule. - State court might if it adopts FRCP whole-sale or provides for it. 3) Dismissal by court order. Rule 41(a)(2) 5) Involuntary Dismissal Rule 41(b) 1) Causes/Reasons a) Failure to prosecute case b) Failure to comply with rules c) Failure to comply with Court Order 2) Sources and Result - Sua sponte court of its own volition OR by motion of - Results in dismissal with prejudice unless otherwise specified.

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Pre-Answer Response Rule 12b

1) possible responses to a complaint 1) Do nothing => Default Judgment 2) File a 12(b) Motion 3) Answer within 21 days of service of complaint if service waived, 60 days 2) 12(b) Motions - Defenses (1) Lack of Sub. Matter Jurisdiction -Can be made at any time, include through trial and on appeal (2) Lack of personal jurisdiction Waivable -Must be asserted in first post complaint action before the court (3) Improper venue Waivable -Must be asserted in first post complaint action before the court (4) Insufficient process Waivable -Must be asserted in first post complaint action before the court defect in actual papers of service (5) Insufficient service of process Waivable -Must be asserted in first post complaint action before the court -Defect in method of service, might have to reserve (6) Failure to state a claim upon which relief can be granted -May be asserted at any point until and including during the answer. If it is after the answer it becomes a 12(c) motion for summary judgment. -No outside evidence, only looks to the complaint. -Apply both Legally Sufficient Test and Factually Sufficient Test (7) Failure to join under Rule 19 -Can be asserted through the end of the trial 3) Only 1 pre-answer motion and any of waivable ones not asserted in it are waived. R12(g) 4) If matters outside pleadings involved, the result of a 12(b) motion is actually a Rule 56 motion. 5) Motion for more definite statement 12(e) - Test: so vague or ambiguous that cannot reasonably respond to it - If granted must clarify complaint within 14 days. - If not clarify, court may strike pleading or issue other appropriate order. - After clarification is submitted, has 14 days to respond to new, more def. statement. - A 12(e) will waive the aforementioned waivables, but might allow for another preanswer motion if ground for them were not clear in original complaint.

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Answer Rule 8b
1) Must answer or file pre-answer motion with 21 days of service. 2) Answer must: A) Set forward defenses to claims in complaint: 1) Set forth defense to each claim asserted 2) Admit or Deny, or assert lack of information to EACH allegation. See R8(b)(1)(B) a) If fail to deny each and every allegation, such a failure is treated as admission. See Rule 8(b)(6) b) General denial is okay. 8(b)(3) c) Denials must be in good faith. 8(b)(4) i. usually this causes admit parts and deny parts. B) Assert Affirmative Defenses and Avoidances - Failure to raise => need for later amending of the pleadings to allow for the defense to be brought up. Variance: R15, might end up with waiving. - If raises an affirmative defense then has burden of proof for it. - creates both burden of production and, - burden of proof for this claim - Aff. Def. are enumerated on pg.18. - Avoidance is not enumerated, but must be still stated (easement, etc.) C) Distinction btw defense to claim and affirmative defense. - If something is an affirmative def. it is not an element of the claim. - Affirmative defenses inject new matters to dispute, elements dont - If it is a defense to an element of the claim, a denial is sufficient. - Going beyond simple denial of claim => pregnant denial and can hurt. - Sometimes tell depending upon who had the burden of proof. - Tell from Statutory language. - if x,y,z thats an element - unless d thats an affirmative defense

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Amending and Suplimental Proceedings Rule 15

1) Party may amend once as a matter of course within: 15(a)(1)(A) 21 days after serving the pleading, or 15(a)(2)(B) if pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under 12(b) (e) (f), whichever is earlier responsive pleading is a pleading that responds (i.e. answer) has ability to amend. 2) If after mater of course window has elapsed, a party MUST obtain the courts permission or the consent of the adverse party to amend. 15(a)(2) 1) other parties consent OR 2) courts permission (should be freely given when justice so requires) - generally given, sometimes not allowed if proceeded almost to trial and there was no reason why the amendment could not have been offered earlier, OR - granting would substantially prejudice ability defend case (i.e. the delay hurts ability to defend case), OR - when undue delay or bad faith on movants part, OR - opposing party fails to object. (treated as consent)

3) Unless otherwise stated, time to respond to amended pleading is within time remaining from original pleading, OR within 14 days after service of amended pleading. 12(a)(3) 4) VARIANCE or amendments DURING trail. 15(b) should (1) If evidence is not within issues raised by pleadings, the court freely permit the amendment of the pleadings to encompass evidence IF: 1) Aid in present the merits of case, AND 2) objecting party fails to prove doing so will prejudice their case - Ct. may grant continuance to allow party to meet evid. (2) Issues tried by consent issue not raised by pleadings but tried by both sides, a party may move at any time, even post judgment amend pleadings to encompass. Failure to do so, will not affect the trial.

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Statutes of Limitation and Relation Back Rule 15

1) General question to ask: Should court allow amendment under 15(a)? - Is it first time? Has the opposing party responded? What about leave of court? How far into proceedings? 2) Amendments adding CLAIMS, not changing . 15(c)(1)(A)&(B) SAME ; NEW CLAIM AST ARISING from SAME TRANSACTION TEST

A new claim is not barred under SoL if it relates back to original pleading. - Generally, if it new claim is founded on same fact situation set out in original pleading it relates back. - This includes conduct, transaction, or occurrence in original pleading. - IF new claim requires additional facts from OUTSIDE the situation, transaction, etc. in original pleading it does not relate back. 15(c)(1)(C) NEW DEFENDANT AST + NOTICE for NEW

An amendment that changes the party or naming party is allowable if: 1) It arises from same transaction AND 2) the NEW knew or should have know within 4(m) time period that the action was meant to be against them, but for a mistake concerning identity. 4(m) 120 days from time suit filed, unless shows good cause for failure of service. Doesnt apply to service in foreign countries. 4(m) req. is because of notice requirement.

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Sanctions Rule 11
1) Purpose is to force compliance with pleading standards and professional responsibilities. 2) Signature: 11a Every pleading, written motion, or court paper must be signed. Court will strike unsigned papers. 3) 11(b) - By submitting papers to court, attny. certifies that after a reasonable inquiry the following: 1) Not for improper purpose (harass, delay, increase costs) 2) Claims, defenses, and legal contentions are warranted by law or non-frivolous arguments for changing law. 3) Factual contentions have evidentially support or will have support after discovery. 4) Denials of facts are warranted and reasonably based on info. 4) Sanctions A) If after notice and reasonable opportunity to respond, court determines 11(b) is violated, court may impose sanctions on: - attny., firm or party. - Absent exceptional circumstances, a law firm must be held jointly responsible. B) SAFE HARBOR PROVISION: A motion for sanctions must be: a) made separately from any other motion and must describe specific conduct b) served under rule 5 c) must wait 21 days for served party to fix problem d) may then be presented to court, ONLY AFTER 21 day waiting period. C) If safe harbor provision VIOLATED, defense MUST be asserted by person found in violation of 11(b); failure to do so constitutes waiver of def. and def. cannot be asserted later or on appeal. D) Limits/Policy: Sanctions are to deter, must be limited to what suffices to deter repetition of conduct. May include nonmonetary directs and monetary directives.