1. Wed., Oct. 4

2. purposes served by a complaint (and answer)

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

4. modern approach: notice pleading

5. -. 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; …

6. procedure 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/trial

7. 1 legal sufficiency of factual allegations do they state a claim?

8. On Wednesday, September 27, 2017 at 2:41 p. m
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.

9. how does the D bring up the problem of legal insufficiency?

10. motion to dismiss for failure to state a claim or defense of failure to state a claim in one’s answer

11. 2 level of specificity in factual allegations are the factual allegations in the complaint specific enough?

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

13. how does the D bring up the problem of lack of specificity?

14. FRCP 12(e) Motion for a More Definite Statement
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.

15. 3 evidentiary support for factual allegations

16. On Wednesday, September 27, 2017 at 2:41 p. m
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.

17. how is the D bring up this problem?

18. 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; ...

19. 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. ...

20. why have this system?

21. inconsistent pleading

22. pleading special matters (fraud)

23. 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.

24. Why the exception in 9(b) for scienter?

25. Leatherman (US 1993)

26. in the cases in the Glannon chapter, distinguish two types of challenges of the plaintiff’s complaint

27. 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)

28. for 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”

29. this is addressed by Conley v. Gibson, 355 U.S. 41 (1957)

30. 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”

31. Dioguardi v. Durning (2d Cir. 1944)

32. Doe v. Smith (7th Cir. 2005)

33. 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)

34. assume 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 negligent

35. before 2007 this was solely a matter to be dealt with through discovery-Rule 11-summary judgment now…

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

37. did the plaintiffs fail to state a claim?

38. 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.

39. 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.”

40. 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).”

41. 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

42. what 8(a)(2) violated then?

43. were the defendants not put on notice about the nature of the alleged agreement?

44. how can an agreement in restraint of trade arise
how can an agreement in restraint of trade arise? must there always be a “handshake”?

45. were the defendants put on notice…?

46. the real problem is evidentiary support…

47. how do you show a tacit agreement?

48. imagine that there was a trial and all that the Ps offered for evidence of an agreement was this parallel behavior? what result?

49. 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.

50. does Twombly frustrate other purposes of a complaint?

51. does the SCt have the power to do this?

52. 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

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

54. does Iqbal state a claim?

55. are the defendants put on notice about the subject matter of the suit?

56. what is wrong with the complaint then?

57. what should Iqbal have put in his complaint then?

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

59. -. 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; …

60. 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).

61. is there a reason to think Twombly and Iqbal are both special situations in which we want protection for Ds?

62. is there an other way of weeding out frivolous complaints before discovery without using heightened pleading standards?

63. what allegations does Twiqbal apply to?

64. allegations of jurisdiction?

65. 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.

66. counterclaims?

67. - 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?

68. 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.

69. affirmative defenses?

70. - 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?

71. Rule 8. General Rules of Pleading (b) Defenses; Admissions and Denials
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.

72. compare Rule 9(b) – does it apply to affirmative defenses?

73. 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.

74. how to plead to satisfy Twiqbal…

75. efficiency accuracy autonomy

76. responding to a complaint…

77. default

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

79. entry of default

80. motion for a default judgment

81. - 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?

82. - 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?

83. - 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?

84. Rule 12 motions

85. 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.

86. Matos v. Nextran, Inc. (D.V.I. 2009)