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Wed., Oct. 4 p urposes served by a complaint (and answer) Wed., Oct. 4 p urposes served by a complaint (and answer)

Wed., Oct. 4 p urposes served by a complaint (and answer) - PowerPoint Presentation

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Wed., Oct. 4 p urposes served by a complaint (and answer) - PPT Presentation

can pleading standards be used to weed out factual allegations without adequate evidentiary support before discoverytrial modern approach notice pleading Rule 8 General Rules of Pleading a Claim for Relief A pleading that states a claim for relief must contain ID: 651383

court pleading relief claim pleading court claim relief judgment motion rule state allegations party complaint statement defenses support rules

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Slide1

Wed., Oct. 4Slide2

p

urposes served by a complaint (and answer)Slide3

can pleading standards be used to weed out factual allegations without adequate evidentiary support before discovery/trial?Slide4

modern approach:

notice pleadingSlide5

- Rule 8. General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(

2) a short and plain statement of the claim showing that the pleader is entitled to relief;

…Slide6

p

rocedure for addressing the three

things that can be wrong

with the (non-jurisdictional) factual allegations in

a

complaint under the Federal Rules system:

1) legal

insufficiency

2)

inadequate specificity (even to satisfy 8(a)(2))

3)

lack of evidentiary support to justify discovery/trialSlide7

1

legal sufficiency of factual allegations

do they state a claim?Slide8

On

Wednesday, September 27, 2017

at 2:41 p.m., Defendant Jefferson Hunt

intentionally

failed to praise Plaintiff Michael Green for Plaintiff’s exemplary lecture on civil procedure, in circumstances in which praise would have been reasonable, thereby causing Plaintiff substantial psychological distress.Slide9

h

ow does the D bring up the problem

of legal insufficiency?Slide10

m

otion to dismiss for failure to state a claim

or

defense of failure to state a claim in one’s answerSlide11

2

level of specificity in factual allegations

are the factual allegations in the complaint specific enough?Slide12

Defendant Jefferson Hunt intentionally engaged in contact with the person of Plaintiff Michael Green that was harmful or offensive, causing damages.Slide13

how does the D bring up the problem of

lack of specificity?Slide14

FRCP 12(e

) Motion for a More Definite Statement.  A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but

which is

so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and

must point

out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days

after notice

of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order

.Slide15

3

evidentiary support for factual allegations Slide16

On Wednesday, September 27, 2017 at 2:41 p.m., Defendant Jefferson Hunt

hit Plaintiff

Michael

Green

in the face, causing him extensive physical harm.Slide17

h

ow is the D bring up this problem?Slide18

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

...(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

...(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; ...Slide19

Rule 56. Summary Judgment

(a) Motion for Summary Judgment or Partial Summary Judgment.  A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought.  The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.  The court should state on the record the reasons for granting or denying the motion. ...Slide20

why have this system?Slide21

i

nconsistent pleadingSlide22

pleading special matters

(fraud)Slide23

Rule 9.  Pleading Special Matters 

... 

(b) Fraud or Mistake; Conditions of Mind. 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.Slide24

Why the exception in 9(b) for scienter?Slide25

Leatherman (US 1993)Slide26

i

n the cases in the

Glannon

chapter, distinguish two types of challenges of the plaintiff’s complaintSlide27

1

really about failure to state a claim

-

D is not claiming that the

P

does not have

evidentiary support for the allegations

- D is worried that what is alleged does not add up to a violation of the law (some element of a cause of action looks like it is missing)Slide28

f

or example….

assume that under the relevant law there is no strict liability for product defects, only negligence liability

P alleges that D manufactured the product “improperly”Slide29

t

his is addressed by

Conley v. Gibson, 355 U.S. 41 (1957)Slide30

Conley v. Gibson

“complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”Slide31

Dioguardi

v.

Durning

(2d Cir. 1944)Slide32

Doe v. Smith (7

th

Cir. 2005)Slide33

2

not really about failure to state a claim

-

D

thinks P

does not have

evidentiary support for the allegations

- all the elements for a cause of action are there but the D thinks that P will not be able to prove an element (that is why the P lacks specificity)Slide34

a

ssume that under the relevant law there is no strict liability for product defects, only negligence liability

P alleges that D manufactured the product “negligently” without saying how it was negligentSlide35

b

efore 2007 this was solely a matter to be dealt with through discovery-Rule 11-summary judgment

now…Slide36

Bell Atlantic Corp. v. Twombly

(U.S. 2007)Slide37

d

id the plaintiffs fail to state a claim?Slide38

Paragraph 4

Plaintiffs allege that Defendants entered into a contract, combination or conspiracy

to prevent competitive entry in their respective local telephone and/or high speed internet services

markets by, among other things, agreeing not to compete with one another and to stifle attempts by

others to compete with them and otherwise allocating customers and markets to one another.Slide39

Paragraph

51

“In the absence of any meaningful competition between the [baby bells] in one another’s markets, and in light of the parallel course of conduct that each engaged in to prevent competition from [locals] within their respective local telephone and/or high speed internet services markets and the other facts and market circumstances alleged above, Plaintiffs allege upon information and belief that Defendants have entered into a contract, combination or conspiracy to prevent entry in their respective local telephone and/or high speed internet service markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another.”Slide40

Stevens’s dissent:

But the plaintiffs allege in three places in their complaint, ¶¶ 4, 51, 64, App. 11, 27, 30, that the [baby bells] did in fact agree both to prevent competitors from entering into their local markets and to forgo competition with each other. And as the Court recognizes, at the motion to dismiss stage, a judge assumes “that all the allegations in the complaint are true (even if doubtful in fact).”Slide41

The majority circumvents this obvious obstacle to dismissal by pretending that it does not exist. The Court admits that “in form a few stray statements in the complaint speak directly of agreement,” but disregards those allegations by saying that “on fair reading these are merely legal conclusions resting on the prior allegations” of parallel conduct. Ante, at 1970. The Court's dichotomy between factual allegations and “legal conclusions” is the stuff of a bygone era, supra, at 1976 - 1977.Slide42

w

hat 8(a)(2) violated then?Slide43

w

ere the defendants not put on notice about the nature of the alleged agreement?Slide44

h

ow can an agreement in restraint of trade arise?

must there always be a “handshake”?Slide45

w

ere the defendants put on notice…?Slide46

t

he real problem is evidentiary support…Slide47

h

ow do you show a tacit agreement?Slide48

i

magine that there was a trial

and all that the Ps offered for evidence of an agreement was this parallel behavior?

what result?Slide49

Souter:

Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.Slide50

d

oes

Twombly

frustrate other purposes of a complaint?Slide51

d

oes the

SCt

have the power to do this?Slide52

28 U.S.C. § 2072. - Rules of procedure and evidence; power to prescribe

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. . . .Slide53

Aschcroft v. Iqbal

(U.S. 2009)Slide54

d

oes Iqbal state a claim?Slide55

a

re the defendants put on notice about the subject matter of the suit?Slide56

w

hat is wrong with the complaint then?Slide57

w

hat should Iqbal have put in his complaint then?Slide58

how does the Iqbal court justify the plausibility standard, given the language of R 8(a)(2)?Slide59

- Rule 8. General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(

2) a short and plain statement of the claim showing that the pleader is entitled to relief;

…Slide60

Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

But

where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not

“show[n]”

—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).Slide61

i

s

there a reason to think

Twombly

and

Iqbal

are both special situations in which we want protection for

Ds?Slide62

i

s there an other way of weeding out frivolous complaints before discovery without using heightened pleading standards?Slide63

w

hat allegations does

Twiqbal

apply to?Slide64

a

llegations of jurisdiction?Slide65

Rule 8. General Rules of

Pleading

(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; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Slide66

c

ounterclaims?Slide67

- P sues D for negligence in federal court

- In his answer, D adds a counterclaim asking for the damages that D sustained due to P’s negligence in the same accident

- Do the standards in Twiqbal apply to the allegations of P’s negligence in the counterclaim?Slide68

Rule 8. General Rules of

Pleading

(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; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Slide69

a

ffirmative defenses?Slide70

- P sues D for negligence in federal court

- In his answer, D introduces the defense of contributory negligence

- Do the standards in Twiqbal apply to the allegations of P’s negligence in the affirmative defense?Slide71

Rule 8. General Rules of Pleading

(b) Defenses; Admissions and Denials.

    (1) In General.

In responding to a pleading, a party must:

        (A) state in short and plain terms its defenses to each claim asserted against it;

and

        (B) admit or deny the allegations asserted against it by an opposing party.Slide72

c

ompare Rule 9(b) – does it apply to affirmative defenses?Slide73

Rule 9.  Pleading Special Matters 

... 

(b) Fraud or Mistake; Conditions of Mind.

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.Slide74

h

ow to plead to satisfy

Twiqbal

…Slide75

e

fficiency

accuracy

autonomySlide76

r

esponding to a complaint…Slide77

defaultSlide78

Virgin Records America, Inc. v. Lacey (S.D. Ala. 2007)Slide79

e

ntry of defaultSlide80

m

otion for a default judgmentSlide81

-

P

sues

D

in federal court in New York

- D

appears and argues lack of PJ and SMJ

- D loses and appeals are not pursued

-

P

then sues on the

judgment

in state court in CA, where D has assets

- can D challenge the

federal judgment

for want of SMJ and PJ?Slide82

-

P

sues

D

in federal court in New York

- D defaults

- P brings a motion for a default

judgment

- the court determines whether it has SMJ and PJ before entering the default judgment

- P then sues on the default judgment in state court in CA, where D has assets

- can D challenge the default judgment for want of SMJ and PJ?Slide83

-

P

sues

D

in federal court in New York

- D

appears and does not mention PJ or SMJ (the court doesn’t mention SMJ either)

- D loses and appeals are not pursued

-

P

then sues on the

judgment

in state court in CA, where D has assets

- can D challenge the

federal judgment

for want of SMJ and PJ?Slide84

Rule

12 motionsSlide85

Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

…(

b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(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; and

(7) failure to join a party under Rule

19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim.

No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

…(

d) Result of Presenting Matters Outside the Pleadings.

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading

.Slide86

Matos v.

Nextran

, Inc. (D.V.I.

2009)