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Flashcards in Civil Procedure II Deck (23):

The inference of “scienter”?

Scienter is a (fraudulent state of mind) need not be irrefutable, but it must be more than “reasonable” or “permissible” it must be cogent and compelling, thus strong in light of other explanations


What is the new pleading standard?

Plaintiff must nudged their claims across the line from conceivable to plausible.


Besides the plausible standard what else is needed in a pleading?

The pleader must show that they are entitled to relief. Where there are well-pleaded factual allegations a court should assume their veracity and then determine whether they plausible give rise to an entitled relief.


What is rule 11

It establishes an interlocking set of standards, procedures, and sanctions It covers every aspect of litigation that involves a written document


What is a 12(b)(6) motion/demurrer

(1) admits, for the purposes of the motion, all facts alleged in the complaint. (2) even if all the facts are true, the law grants plaintiff no legal remedy.


What is a pleading?

Rule 7(a) defines pleading to include the complaint; the answer to the complaint; an answer to a crossclaim deigned as a counterclaim; answer to cross claim;


What is a motion?

Motion is any request for a court order. Must be (a) in writing unless made during hearing or trial; (b) state with particularity the grounds for seeking the order; (c) state the relief sought.


What is a "dilatory plea"

Rule 12(b)(1) - (7); pleas which postpone the case but does not end the case.


What is the relationship between Rule 8 and Rule 11?

Rule 8 tells us that your complaint need only have “bare allegations”, while Rule 11 requires you to have investigated and have evidentiary support for your factual allegations. Rules are in tension with each other.


What must a party do in response to a pleading?

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


What is an answer?

An answer is a response to the substantive allergations of the complaint. Meaning it is either a (1) admit; (2) deny; (3) A party lacks knowledge or information sufficient to form a belief about the truth of an allegation. That statement has the effect of a denial.


What is a general denial?

A party that intends in good faith to deny all the allegations of a pleading — including the jurisdictional grounds — may do so by a general denial


What about partial denials?

A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.


Compulsory counterclaim

Must be stated in the Answer or it is barred. Claim arises from the same occurrence of facts.


Does the allow Plaintiff to amend?

It is a universal principle that before granting a motion to dismiss for failure to state a claim, a court will give the PL. a chance to amend the complaint, to cure the deficiency the DEF. & the court have identified.


Magic Language from Twombly

formulaic recitation of the elements of a cause of action will not do.


What are we looking for in the complaint, for exam purposes

Are there enough facts and does it establish the steps to the DEF.’s liability. The reasoning of both sides. What facts/proofs that you can use to say conclusion or factual allegation? Plausible claim is how can you write your answers.


What does" Conclusory" mean?

We are not bound to accept legal conclusions couched as factual allegations.


How does the S.C. look to identify the line between possible and plausible?

The Supreme Court characterizes it evaluation of this line of cases as a process for measuring the factual allegations in a PL.s complaint in order to determine if they plausibly suggest an entitlement to relief. Courts decide plausibility based on common sense and judicial experience.


Rule 11 Signature Sanctions

Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented.


Black Letter Rule for Relates Back is

i) If the Litigant has been advised at the outset
ii) Of the general fact from which the belatedly asserted claim arises
iii) The amendment will relate back
b) Even though the STATUE of LIMITATION may have run in the interim
c) An amendment which Changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same and original pleading brought it to defendants attention


When is discovery

Intermediate state Between the pleading and the trial.


Chief Benefit of Surviving Dismissal

Getting to Discovery