Tues., Sept. 3

drafting a complaint

Bell Atlantic Corp. v. Twombly (U.S. 2007)

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.

-. Rule 8. General Rules of Pleading (a) Claim for Relief - 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.

Does Twiqbal apply to counterclaims?

P alleges that D was negligent P alleges that D was negligent. P’s allegation of negligence is subject to Twiqbal. In his answer D alleges the P was contributorily negligent. Is D’s allegation of negligence subject to Twiqbal?

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. . . .

28 U.S.C. § 2074(a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.

Six months after the dismissal in Twombly, the plaintiffs’ lawyers find in the trash outside various baby bells’ offices memos indicating that the baby bells were intentionally coordinating their behavior in just the manner that the Twombly complaint suggested. They file a new complaint in federal court with this evidence described. What result?

Aschcroft v. Iqbal (U.S. 2009)

pleading special matters (fraud)

Rule 9. Pleading Special Matters 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.

fraud - statement (omission if duty to speak) - of material fact - that is false (or misleading) - with knowledge of falsity often intent that plaintiff rely - reasonable reliance on statement by plaintiff - causation of damages

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

Are frivolous cases a problem?

(a) Signature. 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. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

(b) Representations to the Court (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:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(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; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(d) Inapplicability to Discovery (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

Murphy v. Cuomo (N.D.N.Y. 1996)