1. Fri., Aug. 29

2. drafting a complaint

3. Three things that can be wrong with (the factual allegations in) a complaint: 1) legal sufficiency of factual allegations 2) level of specificity in factual allegations 3) evidentiary support for factual allegations

4. 1 legal sufficiency of factual allegations do they state a claim?

5. elements of cause of action vs. affirmative defenses

6. Can the defendant get an action dismissed for legal insufficiency during the pleading period?

7. FRCP 12(b) How to Present Defenses
FRCP 12(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: ...(6) failure to state a claim upon which relief can be granted; and ...

8. Must the defendant get an action dismissed for legal insufficiency during the pleading period?

9. Is it right that an action can get dismissed for legal insufficiency during the pleading period, before discovery?

10. 2 level of specificity in factual allegations are the factual allegations in the complaint specific enough?

11. -. 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: ...(2) a short and plain statement of the claim showing that the pleader is entitled to relief...

12. Can the defendant get an action dismissed for insufficient specificity during the pleading period?

13. Must the defendant get an action dismissed for insufficient specificity during the pleading period?

14. Is it right that an action can get dismissed for insufficient specificity during the pleading period, before discovery?

15. 3 evidentiary support for factual allegations

16. 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; ...

17. 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. ...

18. Can the defendant get an action dismissed for evidentiary insufficiency during the pleading period?

19. Is it right that an action cannot get dismissed for evidentiary insufficiency during the pleading period – that the defendant must wait until after discovery?

20. can detail in a complaint be used to weed out frivolous actions?

21. Sierocinski v. E.I. Du Pont De Nemours & Co. 3d Cir. 1939

22. What are the facts that Sierocinski alleges create a cause of action?

23. Where was S’s suit originally filed?

25. What law is S suing under?

26. How did S get into federal court?

27. Who is the appellant? the appellee?

28. What decisions are being appealed?

29. The plaintiff's ‘statement of claim‘ (complaint), amended under an order of court granting defendant's motion for a more definite statement under Rule 12(e)… alleged that he was injured by the premature explosion of a dynamite cap. Specifically the plaintiff claimed as negligent acts the manufacturing and distributing of the cap ‘in such a fashion that it was unable to withstand the crimping which defendant knew it would be subjected to‘; and distributing a cap so constructed that it would explode upon being crimped, without warning, the defendant knowing it would be crimped. Judge Kalodner granted the defendant's motion to strike this amended statement, as failing to set forth any specific act of negligence, and dismissed the action. From his order the plaintiff appealed to this court.

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

31. 12(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.

32. What is DuPont’s beef with the complaint?

33. Appellee, admitting that a manufacturer is liable for injuries to a person from the use of a defectively manufactured article, argues that it is not put on notice by the complaint as to whether it must meet a claim of warranty, of misrepresentation, of the use of improper ingredients, or of faulty inspection.

34. The aforementioned premature explosion, and the injuries resulting therefrom, were caused solely by the carelessness and negligence of the defendant, in: a. manufacturing a dynamite cap in such a fashion that it was unable to withstand the crimping which defendant knew it would be subjected to, b. distributing a dynamite cap which was so constructed that it was unable to withstand the crimping which defendant knew it would be subjected to, c. distributing a dynamite cap which was so constructed that it would explode, upon being crimped, without warning or in any fashion indicating that the said dynamite cap would explode upon being crimped d. distributing a dynamite cap which it knew would be crimped when the said dynamite capo would explode upon said crimping, and such fact was known or should have been known to defendant.

35. But there is a specific averment of negligent manufacture and distribution of the cap in such a fashion as to make it explode when crimped. A plaintiff need not plead evidence. He "sets forth a claim for relief" when he makes "a short and plain statement of the claim showing that the pleader is entitled to relief (Rule 8(a)(2)." The same rule, (e)(1), requires that "each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required"; and (f) "all pleadings shall be so construed as to do substantial justice". Form 9 in the Appendix of Forms attached to the Rules, "intended to indicate * * * the simplicity and brevity of statement which the rules contemplate [Rule 84]", contains this concise allegation of negligence: "defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway". If defendant needs further information to prepare its defense it can obtain it by interrogatories (Rule 33).

36. Do subsequent events show that the 3d Circuit’s decision was wrong?

37. Did Raymond White violate R. 11?

38. What could DuPont have done to avoid trial?

39. Martin Sierocinski, also known as Martin Selensky, the plaintiff above named, brings this action in trespass against E.I. DuPont DeNemours & Company upon a cause of action whereof the following is a statement: 1. The plaintiff is a resident of the City and County of Philadelphia. 2. The defendant, E.I. DuPont DeNemours & Company, is and was at the time of the occurrences hereinafter described, a corporation duly organized and existing under the laws of the State of Delaware, and duly authorized to transact business in the Commonwealth of Pennsylvania The defendant is engaged in the business of manufacturing and distributing, and does manufacture and distribute, inter alia, blasting caps for use by the public

40. 6. The Ehret Magnesia Manufacturing Company furnished to the plaintiff dynamite caps manufactured by the defendant, which dynamite caps were in the same condition as they were when distributed by the said defendant. 7. On or about September 24, 1936, the plaintiff was engaged in crimping a dynamite cap, manufactured and distributed by the defendant, when it prematurely exploded causing injuries hereinafter set forth. 8. In the crimping of the said dynamite cap, the plaintiff acted in the usual and customary manner, the process being a necessary one in the using of the said dynamite cap for the purpose for which it was manufactured and distributed , and such action on his part having been anticipated by defendant.

41. The aforementioned premature explosion, and the injuries resulting therefrom, were caused solely by the carelessness and negligence of the defendant, in: a. manufacturing a dynamite cap in such a fashion that it was unable to withstand the crimping which defendant knew it would be subjected to, b. distributing a dynamite cap which was so constructed that it was unable to withstand the crimping which defendant knew it would be subjected to, c. distributing a dynamite cap which was so constructed that it would explode, upon being crimped, without warning or in any fashion indicating that the said dynamite cap would explode upon being crimped d. distributing a dynamite cap which it knew would be crimped when the said dynamite capo would explode upon said crimping, and such fact was known or should have been known to defendant.

42. 10. By reason of the said premature explosion of the said dynamite cap, manufactured and distributed by defendant, the plaintiff did suffer the following injuries: Loss of great toe of left foot; loss of sight of both eyes; lacerations of the legs, arms, shoulders, thighs, face and neck; gravel and grit were driven into various and sundry portions of his body, including his face, legs, arms, shoulders, thighs, trunk and torso; a severe shock to his nerves and nervous system; and various and sundry other injuries of a serious and permanent nature. 11. As a result of the aforesaid occurrence, the plaintiff has undergone and will continue to undergo great pain and suffering. He was confined to his bed for a long period of time and will be blind for the rest of his life. He has required and will require medical attention and treatment, thereby incurring great expenses. He has been deprived of his sole means of livelihood, and he is otherwise greatly injured and damaged.

43. Wherefore, the plaintiff claims to recover from the defendant the sum of Two Hundred Thousand Dollars ($200,000) as damages for the aforesaid injuries caused directly by the negligence of the defendant as aforesaid. (s) Raymond A. White, Jr. Attorney for Plaintiff.

44. 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”

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

46. What are facts that the plaintiffs allege give rise to a cause of action?

47. Do you think it is likely that the defendants did anything wrong?

48. What law are the plaintiffs suing under?

49. How were the plaintiffs able to sue in federal court?

50. What decision by the trial court was appealed?

51. Did the plaintiffs state a claim?

52. 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.”

53. Is parallel behavior an agreement?

54. Stevens: 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).”

55. 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 The Court's dichotomy between factual allegations and “legal conclusions” is the stuff of a bygone era, supra, at

56. What 8(a)(2) violated then?

57. Were the defendants not put on notice about the nature of the alleged agreement?

58. Assume that the complaint had alleged a handshake agreement among the CEOs of the baby bells at a particular meeting and named the date. No evidence is offered at all. Is Twombly satisfied?

59. How can an agreement in restraint of trade arise
How can an agreement in restraint of trade arise? Must there always be a “handshake”?

60. Imagine that there was a trial and all that the Ps offered for evidence of an agreement was this parallel behavior? What result?

61. 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.

62. 28 U.S.C. § 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

63. 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?

64. Aschcroft v. Iqbal (U.S. 2009)