Pleading & Reponse Terms

Question 1

Complaint

Answer 1

Written statement that contains the claim for cause of action, allegations = facts or assertions, evidence provided later. Required statements (Rule 8a):

• jurisdiction, claims, relief sought (“prayer” or “ad damnum clause”)

Question 2

Pleadings

Answer 2

Documents that start the legal claims and defenses at the parties want to consent in a lawsuit
- Federal Rule 8 governs pleading
- furnish a basis for ID Ing and separating legal and factual contentions to discern legal issue
- establishes what parties want to prove it trial
- Biggest enemy = motion to dismiss (motions contain arguments, not allegations—unlike pleadings)
- pleading burdens: party that must prove must plead (and vice versa); Rule 8c: affirmative defenses; rationale: access to information—satisfy standard to survive motion to dismiss for defective pleadings
-Pleading sufficiency - asses allegations, what to put in your complaint

Question 3

Allegations

Answer 3

Statement purporting a fact

Question 4

Arguments

Answer 4

Need premises and an operation of reasoning to draw a conclusion

Question 5

Proof

Answer 5

A thing (photos, videos, docs you can submit to the court on one side) to demonstrate that an allegation is true

Question 6

Demurrer

Answer 6

Challenges, the legal sufficiency of P’s claim saying there’s no valid defenses

Question 7

Dilatory & Preemptory Plea

Answer 7

D: challenges the court to hear it, including jurisdiction
P: Plea in bar, on the merits

Question 8

Code Pleading

Answer 8

Citing the Code of Civil Procedure, Field Code, a prototype for codes in other states and a precursor of federal rules requiring operative facts specific facts of life that are not generic

Court provided conclusions of law, generic statements after a legal rule was applied which requires 1) certain facts; and 2) application legal rule -> conclusion of a logical argument

Question 9

Pros/Cons of Code Pleading

Answer 9

P: make sure you’re not wasting time and to give opponents a roadmap

C: difficult for those less educated to create a sufficient complaint

Question 10

Notice Pleading

Answer 10

The new system that a complaint only requires a short statement ruled by the Federal Rules of Civil Procedure (1934)

Question 11

Federal Rules of Civil Procedure

Answer 11

Required lenient, minimum, pleading requirements. It got rid of the common law, pleading system and shifted the burden to the opposing party in the courts for next steps.

Theory: a complaint should be sufficient if it gives minimal notice to the party and the court

Question 12

Pros/Cons of Notice Pleading

Answer 12

P: more civil P can access civil justice and cost is a higher burden on D’s. courts to sit on a lot of bogus actions longer. Increases the burden on the opposing party to file the motion to dismiss and because nothing will happen unless there’s a motion. Also motivates complaints to be airtight meeting the pleading standards.

C: invites bots to file lawsuits, could max out justice for meritorious claims, fewer bogus claims will be screened immediately and screened to the later stages instead.

Question 13

Analyzing Probability

Answer 13

1. Evaluate P’s argument in a vacuum on the quality argument and a P-favoring story to tie together factual elements.
   - Twombly: not a probability requirement—need to nudge beyond me or possibility to become plausible, even if D’s story is better
   - Iqbal: if equally persuasive P should win the most likely explanation. Principle of Transsubtantivity = same standard should be applied to your case, regardless of type
2. Compare/compete approach with a P-favoring story and D-favoring story and assess their weights. Tailor facts to accommodate for which plausibility standard you’re in considering context experience common sense

Question 14

Post Twombly/Iqbal Standard

Answer 14

• increases minimum requirements for pleading claims
• Allegations to relief must be plausible
• Require some facts
• presumption of truth only for allegations with some factual support
• Increase in dismissal rates by 4%

Question 15

Presumption of Truth Scale

Answer 15

Facts <————————> Conclusory
Presumption of truth / no presumption of truth

• need to reason by analogy why case should get presumption of truth

Question 16

Conley v. Common Law Code Pleading Scale

Answer 16

Conley <—————————> Common Law Code Pleading

Possibility —— Plausibility —— Super strict

Post-Twombly = dismissed / Post-Twombly = OK

Question 17

Rule 9

Answer 17

Heightened pleading standards for certain kinds of issues

Question 18

Private Securities Litigation Reform Act 1995

Answer 18

Impose a super heightened pleading standard on complaints requiring every statement alleged have been misleading and reasons why the statement was misleading must show a strong inference of scienter that he acted with the required state of mind stated with a particularity (ex: malice, recklessness)

Question 19

Rule 12 (e) & (f) Motions

Answer 19

Rule 12(e) - motion for a more definite statement
- time limit
- disfavored under Conley
- under Twombly

Rule 12(f) - can move to strike for a pleading that’s redundant/scandalous/immaterial/impertinent
- legally insufficient claims or defenses
- time limit rule 12(f)(2)
- disfavored
- pleader should be the master of pleadings (with almost all autonomy to decide what goes in complaint)

Question 20

Rule 12(b)

Answer 20

Defenses against VALIDITY of the complaint
1. Lack of subject matter jurisdiction (NEVER waived—can raise anytime)
2. Lack of personal jurisdiction (MUST be put in 1st Rule 12 response or will be WAIVED)
3. Improper venue.
4. Insufficient process.
5. Insufficient service of process.
6. Failure to state a claim (can raise anytime during trial unless would cause“unfair surprise”)
- basis: factual insufficiency OR legal insufficient of claims (more common)
- Waiver: can be raised up to end of trial 12(h))
- **Effects of 12(b)(6) dismissal: with prejudice, with leave to amend

Question 21

Rule 12(c & d)

Answer 21

12c: Motion for judgment on the pleadings (post-pleadings)
12d: Motion for conversion to summary judgment
- evidence beyond the pleadings (ex; misleading statements) will be converted into summary judgment motion and held at bay until discovery

Question 22

Rule 12(g)

Answer 22

Motion for joining motions
- have to be filed within 21 days of being served
- rule 12 B allows more time for consideration of parties
- most all D’s request an extension

Question 23

Responding to the complaint

Answer 23

• Can be asserted in motion or answer (as affirmative defense).
• File motions before answer because they are offensive: don’t have to admit anything or assert your own facts
• Response takes the form of a motion or an answer within 21 days of service of process (unless waived by 4(d) —> 60 days)

Motion
- not pleadings (facts)
- arguments (asking the court to do something for you)

Question 24

Rule 8(b)3 and 9(a)2

Answer 24

8(b)3: allows a general denial of the complaint—disfavored because the court may decide the general denial does not fairly respond to the substance of the allegation
- When something is publicly true but you deny it it will be deemed admitted (X is the CEO of this company). Do not want something deemed admitted because D cannot have it removed.
- Conjunctive denial = all propositions to consider together are not true, but does not specifically deny the truth of each proposition alone

9(a)2: specific denials of obligations
- Address each allegation to admit or deny
- Including specific denial, nested within general denial is problematic because the legal rule that specifically govern general (ex: list of affirmative defense to govern general rule) is not true

Question 25

Affirmative Defense v. Avoidance; what to consider

Answer 25

Affirmative Defense = admits the allegations of complaint but challenges P’s legal right to bring action by suggesting legal assertion why relief isn’t available (8c1 lists: duress, fraud, negligence) - have to be **pleaded** - different from because raising a new fact Avoidance = brings up extraneous allegations outside of complaint while P can recover under the ordinary operation of governing law, there is a reason ordinary operation should not function in this case. INGRAHAM V. UNITED STATES If **defense is not raised as avoidance or affirmative defense, its waived**. Need to consider the logical relationship between the defense and P’s cause of action: - if matter is necessary or extrinsic to P’s cause of action (outside of claim) - Which has better access to relevant evidence—P should NOT be surprised - policy considerations

Question 26

Rule 15a

Answer 26

Amendments before trial 1. Amending as a Matter of Course - A: 21 days after serving it - B: if responsible pleating is required 21 days after service 2. Other amendments. Only with the opposing parties written consent or the courts sleeve court should freely give leave when justice so requires. - Can amend it anytime if other party agrees - Time to respond within time remaining to respond to original pleading or within 14 days - Denied only if there’s bad faith, prejudice, or delay

Question 27

Rule 15b

Answer 27

Amendments during and after trial - 15(b)1: based on an objection at trial. if at trial party objects evidence not raised in the pleadings, the court may permit the pleadings to be amended - 15(b)2: for issues tried by consent must be expressed or implied consent, not already tried completing to raise - can raise an unleaded issue at any time even after judgment

Question 28

Rule 15c

Answer 28

Relation Back of Amendments (1) **When an Amendment Relates Back**. An amendment to pleading relates back to date of OG pleading when: A. **applicable statutes of limitations allows relation back**; B. **Amendment asserts claim or defense** that arose out of the **conduct, transaction or occurrence** set out or attempted to be set out in the original pleading or C. Seeks to change the party name. If 15(c)(1)(b) satisfied, party brought in from amendment: 1) received notice of action 2) **right D knew or should have known** action would have been brought against it - would know through relationships, public docs

Question 29

Rule 15(d)

Answer 29

Supplemental pleadings allowed based on facts not existing when the court complaint was filed can be used to: 1. Cure effects and original pleading. 2. Add new claims. 3. Provide additional facts that update the complaint (concerning transactions occurrences events that happen after filing of initial pleading) - Adding another “count” (knowable but not known)

Question 30

Federal Rules of Civil Procedure

Answer 30

Lenient minimum pleading requirements Rule 7 - General Pleading Rules - 7(a) - Types of pleadings allowed (complaint, answers to compliant, counterclaims, and cross claims, third-party pleadings) - 7(b) - Motions (requests for court order)

Question 31

Motion to Dismiss

Answer 31

Challenges the court’s jurisdiction over the subject matter or person, service of process or venue. 3 situations where a motion could be granted: 1. Complaint shows the injury is one where the **law has no redress**. 2. P may have **failed to include allegation** necessary to part of the case. 3. Complaint may be so **general and confusing** the court finds it doesn’t give adequate notice of what P’s claim is.

Question 32

Pleading rules

Answer 32

7 - General Pleading Rules 7(a) - Types of pleadings allowed (complaint, answers to complaint, counterclaims Crossclaim) 7(b) - motions (requests for court order) 7.1 - Disclosure statements 9 - Heightened pleading for certain claims 10 - Form of pleadings 11 - Verify pleadings (avoids frivolous pleadings) 12 - Motions relating to pleadings 15 - Amending and supplemental pleadings (Former) Rule 84 - Form pleadings

Question 33

Rule 8 = Requirements for Pleading Content

Answer 33

8(a) - Complaint Requirements - (2) “ short and plain” statement of **claim** - construct all allegations as true - *Conley v. Gibson*: claim sufficiently plead unless “appears beyond doubt P can prove no set of facts in support of his claim” - *conley* governed until *Twombly* - **jurisdiction** - **relief** sought (“prayer” or “*ad damnum* clause) 8(b) & (c) - Answer Requirements - **defenses** - admit or deny **allegations** - affirmative defenses, need to be highlighted and are for you to prove something to succeed in your defense 8(d) & (e) - Misc - “concise and direct” - abolished the common law writ system which was full of traps - can plead alternative and inconsistent allegations

Question 34

Process of filing a complaint

Answer 34

Complaint —> clerk of judge —> case on judge’s docket - court most likely won’t look at it unless there’s a motion (court is invoked) - lowering the pleading standard increases the burden on the opposing party to file the motion to dismiss / enforce the pleading standard - this is why you want your complaint to be airtight meeting the pleading standards

Question 35

Analyzing Plausibility post-Iqbal

Answer 35

1. Evaluate **p’s argument in a vacuum** on its quality favoring P & tying together factual elements - *Twombly*: not a probability requirement—need to nudge beyond mere possibility to become plausible even if D’s story is better - *Iqbal*: if equally persuasive, P should win the most likely explanation **Principle of Tranasubtabtivity** = same standard should be applied to your case regardless of type 2. Compare/competing approach with P-favoring and D-favoring story and assess their weights. Tailor your factor to accommodate for which plausibility standard you’re considering in context, experience, common sense

Question 36

Post-Twombly/Iqbal Standard

Answer 36

- **Increases minimum requirements** for pleading claims - allegations to relief must be “**plausible**” - requires some facts - **presumption of truth** only for allegations with some factual support - **increase in dismissal rates** by 4%

Question 37

Answer

Answer 37

A pleading (facts). D either admits or denies, or pleads **insufficient evidence** to do either - failure to deny = an admission on any allegation except for damages 1. Respond to factual allegations (8(a)(2)) and then (2) legal allegations (rest of Rule 8) 2. Assert affirmative defenses 3. Raise counter-claims

Question 38

Rule 15(d) - Supplemental Pleadings

Answer 38

Want to add something that occurred *after* the case was filed: - cure effects in original pleading - add new claims - provide additional facts that update the complaint (concerning transactions, occurences, events occurred AFTER filing) - adding another “count” (knowable but not known)