Eras of Pleading: Common law: the writs and all that (1200-1850)
Court had to acknowledge complaint was appropriate
Had to fit claim into some sort of formula (often times, what was in the complaint didn’t bear any relationship to what actually happen)
Almost no discovery
Code Pleading: just the facts (1850-1938)
Shift from formulas to putting a lot of facts in the complaint
Requiring pleading a lot of facts isn’t fair to plaintiff because they may not know exactly what happened/all the facts
Notice Pleading: just give me a hint, please? (1938– 2007???)
1938: FRCP were promulgated
See Rule 8(a)broad discovery
Won’t kick out a lot of cases at this stage; easy to pass the complaint phase
A lot of pressure of discovery system and a lot of unmeritorious cases survive longer than they should
Post-Twiqbal Era: ??? (2007- )
Two major Supreme Court cases (see below)
Seemingly moving us away from notice pleadings
A pleading must contain:
a short and plain statement of the grounds for the court’s jurisdiction…
a short and plain statement of the claim showing that the pleader is entitled to relief; and
a demand for the relief sought….
Problems of Pleading:
1. Learn as much as we can at the start of the case so we can screen out weak cases cheaply
2. Eliminate technical barriers to cases that will be meritorious if they can get to discovery
Notice pleading does well at #2, less well at #1.
Only cases which it screens are those where pleader lacks legal basis for claim
Facts get screened later
Example of a Modern Complaint: Michael Haddle’s Story
What happened to Michael Haddle that caused him to want to bring a lawsuit?
He claims he was wrongfully fired because he was going to testify about his boss’s indictment on several counts of fraud
How was that story transformed to get it into federal court?
Brings the claim under 42 USC § 1985(2)--this was passed to protect newly freed slaves
But his lawyer fits it in because Haddle was injured “on account of his having so attended or testified”
Why did he do this?
Cannot bring a CL claim for wrongful discharge in GA
May be a reason he wants to be in federal court (usually defendants want to be in federal court)
This statute has a fee-shifting provision--here, if plaintiff wins, he can collect attorneys fees
Who do you write a complaint for?
Drafting a Complaint:
Form 11 & 12; Model complaint on TWEN
Remember to include a civil action #
Would see girls in the car, the corporation as owner of the car (would not sue insurance companies)
Headings are something that lawyers put in to make complaint more clear and organized
Rule 8(a)(1): jurisdictional statement (needs to include: “The amount in controversy, without interest and costs, exceeds the sum or value specified…thus jurisdiction is proper under 28 USC § 1332”)
Statement of venue: venue is proper if substantial part of events of claim occur in said district
Rule 8: pleading in the alternative (reason why we can say “defendant Dolt or defendant Drip willfully or recklessly or negligently…”
Defense must accept or deny each statement
Prayer for relief: include “such other damages that may come up in trial”
1/24: Jones v. Clinton, Ch. 1: The Complaint
Case Planning: Investigation begins immediately. It does not wait for discovery to begin.
What questions would you ask her? Who? What? Where? When? Develop sources of proof.
Ex. Who she talked to immediately following--gives it some sort of credibility (included in the complaint)
What kind of relief does she want--initially, she just wants to clear her name
Develop “theory of the case” “Case theory … has been defined as the ‘basic underlying idea that explains not only the legal theory and factual background, but also ties as much of the evidence as possible into a coherent and credible whole.’ The theory of the case should be expressed in simple declarative sentences that combine the legal theory with central factual assertions…. Once a case theory is selected, it serves as the centerpiece for all strategic and tactical decisions in the case….”
Plaintiff’s theory: “that Governor Clinton abused the power of public office, using it to discriminate against Jones, a woman government employee, by treating her in a way that a male employee would not have been treated and by engaging in acts that were tortious as well as discriminatory”
Translation of sexual harassment claim into a constitutional claim:
§ 1983 claim so that a private actor can bring a claim against Governor Clinton, who acting under the color of law as an actor of the state
To get a longer statute of limitations because Title VII has expired
Color of Law Claim:
Paragraphs 9 to 14 (facts showing that Clinton and trooper were acting under color of law…as an actor of the state)
Corresponds with element 1 of Count I
Strategic Decisions: Graphic details
Pro: shock value, puts pressure on Clinton immediately, lends some credibility (very detailed)
Con: blame the victim, may offend some people
Pro/Con: plaintiff must prove all details. If defense can prove that one was inaccurate, lose credibility
Jury trial demanded
Pro: want to make sure that they avoid the politics of it (federal court, judge appointed by a Democrat/Clinton; jury has more sympathy and emotion than judgebigger award, plaintiff-friendly
Filed in federal court (could have filed in state court)
Pro: broad discovery provisions in FRCP, make up of jury pool
Didn’t sue magazine for libel
Burden of proving libel is much harder
Prayer for relief—separated each count under relief to make it clear by four counts (a, b, c, d) because some were against Clinton and some were against both Clinton and Ferguson. Wanted to make it clear to the opposition.
Pros = clarity, emphasis, shows makes it sound worse because there are a number of claims. Repetition hurts harder.
Cons = not many, pros outweigh any miniscule cons there may be. Longer, more to read, more convoluted, may look like she is trying to find more problems than there are.
Included a lot more facts than they needed to. They wrote it like a chapter in a book--written like you could put it in a magazine article rather than a more legal document. Cite paragraph 39. Offend the sensibilities of the court because of this and the length. Maybe some of it is a bit speculative. No facts as to how her rep was damages. (π 44) “Clinton knows...” (paragraph 51) and answer “denied.”
Pros = more info because so public – may have been good since it became so public.
Cons = offend the sensibilities of the court. Only reason allowed is because so public. Judicial system flooded with so much litigation. Clogs the system; didn’t include elements of each claim (hard to tell which elements were met)
Incorporate by reference—the other facts
Pro = Better because don’t repeat...
Con = have to flip back so that you have to see which facts correspond with each count so that elements are met.
Sexual Harassment count before due process
Pro = gets attention, plays up the media aspect
Con = may not be the most legally sound claim
Sheer number of claims brought
Impressive, make defense work harder
Had to include Trooper as defendant though main actor is Clinton
Could turn on Clinton, needed the conspiracy part he brings
Asking for punitive damages (setting up for discovery)
Opens up for discovery an inquiry if this is his first time to commit harassment (higher punitive damages if he is repeat offender)
Introductory paragraph (though not required, it is a nice intro…summarizing underlying facts)
Four Counts Alleged:
--Weaknesses of damages claim
Deprivation of constitutional rights
Quid pro quo sexual harassment--tangible job detriment
Not clear/shown in complaint
Hostile work environment sexual harassment--severe conditions/impact on conditions of employment
Intentional infliction of emotional distress--severe distress
But what are her damages? She hasn’t had medical or psychological treatments.
1/26: Challenging the Complaint
Two major way to challenge complaint:
Challenge it on the law
Defense would rather have a legal defense
Challenge the facts (law is right, but facts are not true)
Problem 4 (p. 346) Plaintiff alleges that defendant insulted him in public; defendant believes that the law does not permit recovery for verbal insults unaccompanied by violence. LEGAL--Rule 12(b)(6)--demurrer
Plaintiff alleges that defendant struck her; defendant says he was not present at the time and place alleged. FACT--denial in answer
Plaintiff alleges that defendant and plaintiff signed a contract, whose terms defendant then violated. Defendant contends that she refused to honor the agreement because the plaintiff forced her to sign at gunpoint. LEGAL--plead affirmative defense
Defense’s Response in Haddle v. Garrison
No legally cognizable injury--not a factual dispute…
Classic demurrer--“so what?”
Even if all this facts are taken as true
At will employee has no property interest, so taking away his property did not deprive him of a constitutionally protected interest under the Due Process Clause
Suppose defendants had moved to dismiss on the ground that Haddle had quit his job and had not been fired, and defendants had submitted a letter signed by Haddle admitting this in support of the motion.
Even if he signed letter in which Haddle admits he was at-will employee, cannot be looked at by court in Rule 12(b)(6) because judge only looks at facts alleged in plaintiff’s complaint
If evidence is presented, a Rule 12(b)(6) motion was presented to court with signed letter, court will either treated as Rule 56 Summary Judgment motion or will say no, can’t look at this
Supreme Court in Haddle v. Garrison
Didn’t not question 12(b)(6); just legal analysis of the 11th Circuit precedent
How the court defines that particular element of the claim; all about legal issue
“Fact that employment at will is not “property” for the purposes of DPC does not mean that loss of at-will employment may not injure petitioner in his person or property”
Interference with at-will employment is a species of intentional interference with contractual relations
Rules in Plaintiff’s favor. Next step? Defendant answers complaint. But will still be a really long legal battle over factual issues once remanded
Mechanics of Rule 12(b)(6)
Motion itself is very short. Brief is longer
Jones v. Clinton Motion to Dismiss
Not a legal response--Clinton argues that Jones has not adequately plead all elements of their claims
Attack on adequacy of pleading, not on the legal claims
This is more factual
Differences between Haddle and Jones
Both are “so what?” Arguments.
Haddle: legal definition of particular element
Jones: pleading is insufficient (so what if all that were true, she didn’t suffer any injury)
Motion to Dismiss (12(b)(6))
12(b)(6) vs. 12(c)
Difference in the timing
Plaintiff hasn’t pled a legally cognizable claim. (Haddle)
Plaintiff hasn’t adequately pled one or more elements of claim. (Jones)
Claim-by-claim, element-by-element analysis
Lawyer as technician
Rule 8: General Rules of Pleading
“[A] short and plain statement of the claim showing that the pleader is entitled to relief.”
Before Twombly and Iqbal: Liberal Notice Pleading
“[A] complaint should not be dismissed … unless it appears beyond doubt that theplaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson*
“[A]ll the rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
“The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system.”
Bell Atlantic v. Twombly
What was plaintiffs’ claim in Twombly?
Telecommunications companies conspired to violate anti-trust laws
Under the antitrust laws, what did plaintiffs have to prove?
Showed that there was a conspiracy (intentionally and together)
Parallel conduct: policies were so similar/the same
What did plaintiffs plead in their complaint?
Plaintiff: plead parallel conduct; allegation of conspiracy (mouth language of the statute)
Defense: no facts to back up complaint
What issue did the Supreme Court have to decide?
Whether the complaint satisfies Rule 8
Is this case more like Haddle or more like Jones v. Clinton? Jones
What was the court’s holding?
Facts are not sufficient to satisfy Rule 8 because “plaintiffs have not nudged their claims across the line from conceivable to plausible…”
Showing that there is parallel conduct is not in and of itself illegal…must show conspiracy too
Only alleged parallel conduct; didn’t not plead conspiracy because did not plead any facts to infer conspiracy
Prevent speculative lawsuits
Ashcroft v. Iqbal
What was the plaintiff’s claim?
Iqbal claims he was discriminated against because he was imprisoned after 9/11 based on his race, religion, etc.
What did plaintiff plead in his complaint?
Arrested and detained thousands of Arab Muslim men…as part of its investigation of 9/11
Ashcroft and Mueller each knew of, condoned, and willfully and maliciously agreed to subject respondent to harsh conditions of confinement based on national origin, religion, and/or race
What was the court’s holding?
Dismissed complaint under 12(b)(6) b/c complaint didn’t satisfy Rule 8
Standard in Twombly applies outside anti-trust
Why did this complaint fail?
Did not nudge the claims from conceivable to plausible
See below for RULES.
So what did court want? More evidence of Ashcroft and Mueller’s intent
“[T]he [FBI], under the direction of Mueller, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” (Court says that this is not plausible; alternative explanation: good law enforcement)
Claim that this is discriminatory is not plausible…it is good law enforcement
“The policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants Ashcroft and Muller in discussions in the weeks after September 11, 2001.” (Court says that this is not plausible; alternative explanation: good law enforcement)
“[Ashcroft and Mueller] knew of, condoned and willfully and maliciously agreed to subject” Iqbal to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race and/or national origin and for no legitimate penological interest.” (Court says conclusory…not part of plausibility analysis)
Ashcroft was the “principal architect” of this policy and Mueller was “instrumental” in adopting and executing it. (Court says conclusory…not part of plausibility analysis, even though this is factually conclusory)
Iqbal and the Future of Pleading:
Complaint must state “sufficient factual matter … to ‘state a claim that is plausible on its face.’” Iqbal/Twombly
–Two-step analysis: Disregard legal AND factual conclusions and conclusory allegations
Evaluate the factual allegations to determine whether “they plausibly suggest an entitlement to relief” (using judicial experience and common sense)
–What does plausibility mean?
Complaint must “nudge claims … across the line from conceivable to plausible.”
“More than sheer possibility” but less than “probability”
Not conclusory facts or mere recitation of elements on claim
Twombly/Iqbal did not overrule Rule 8(a), Conley v. or any other precedent, though it did “retire” Conley’s most famous sentence
Forms SHOULD still suffice (Rule 84)
Defendants bring more 12(b)(6) motions
If Plaintiff pleads more, plaintiff is pigeon-holed in those claims
More Rule 12 motions have been filed…whether they are granted is open for discussion
State of mind poses a special problem now…
“Defendant knew that what there were doing was wrong…”
If that is all you plead, court will throw this out because it is conclusory. This is info you would find in discovery (depositions, etc.)
Congress has introduced bills to repeal Iqbal
The Notice Pleading Restoration Act (S. 1504): goes back to Conley v. Gibson:
Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (c) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).
The Open Access to Courts Act (HR 4115): uses Conley language
A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim, which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.
Rules usually do not get made this way…usually go through Federal Rules Committee, SC, and then back to Congress
Stradford v. Zurich Insurance
What led to this litigation? Dentist’s insurance policy lapsed but resumed payments eventually. Allegedly, while his policy was lapsed, a flood occurred, causing lots of damaged. He claimed that it happened when he resumed his coverage
Dentist sues to recover from a breach on his insurance policy
Also another path to take: Zurich could have just asserted affirmative defense of fraud and therefore no obligation on K
Why do they choose that path? Insurance companies are usually seen in negative light by a jury, but by doing this, it puts the dentist in a bad light (best defense is a good offense)
If we accept Zurich’s allegations as true, did Stradford commit fraud?
It is enough to satisfy Rule 8 (probably, but maybe not now with Iqbal--could be conclusory), but does not satisfy Rule 9(b)
Rule 9(b): “a party must state with particularity the circumstances constituting fraud or mistake”--needed to allege that the flood occurred while his policy lapsed and that he lied about when it occurred
Why should parties have to plead fraud with specificity?
What effect on fraud claim? Higher burden
Why is it harder? Fraud opens up the door to punitive damages; put other party on notice; harder on plaintiffs to plead fraud because they may not have access to specific info at this point
“Special” Claims, Special Pleadings
If legislature identifies “disfavored” claims, one tool is to create special pleading regimes.
E.g. Private Securities Litigation Reform Act of 1995: extra specificity requirements
Standard car accident: plaintiff says defendant ran red light; defendant says plaintiff was drunk.
What are the elements at issue? DBCD
Who does the work to establish those elements?
Burden of pleading--complaint/answer
Burden of production--evidence
Burden of persuasion--jury
If complaint alleges simply that plaintiff was driving his car, that defendant and plaintiff collided and that plaintiff was injured, what should defendant do?
Plaintiff has failed to satisfy burden of pleading those elements so motion to dismiss would be granted
What if, following amendment of the complaint, defendant files a motion to dismiss because plaintiff failed to allege that he was not contributorily negligent?
Doesn’t matter because the burden of pleading contributory negligence is on the defendant
(1) “Persons shall be liable for injuries to others caused by failure to take reasonable care; provided, however, that no person shall be liable if the plaintiff’s own negligence was the primary cause of injury.”
Prima Facie case: “failure to state reasonable care”
(2) “A person who is not himself negligent but who is injured by the negligence of another, has a cause of action against the insurer.”
Prima Facie case: “who himself is not negligent”
Burden of pleading contributory negligence IS on the plaintiff
Jones v. Block
What is the substantive claim at stake? Prisoner claimed he was injured but forced to work
What is the issue before the court? Who must plead exhaustion under the PLRA…the plaintiff or the defendant
Court is not dealing with whether he exhausted all proceedings at the prison before filing the claim in court (as required by statute)
Holding: prison’s obligation to plead it as an affirmative defense
Why? Specific pleading requirements are mandated by the Federal Rules of Civil Procedure and not as a general rule, through case-by-case determinations of the federal courts
Also doesn’t say that plaintiff must plead that he exhausted all remedies in statutes
Exhaustion in other areas of law is treated as an affirmative defense (Rule 8(c)--its not listed, but this list is non-exhaustive)
Act of judicial restraint; this is not up to us to change pleading requirements
Hard to square this with Twombly and Iqbal where court did change pleading requirements
Ethical Obligations in Pleading: Rule 11
What was the factual defect in Haddle’s complaint? Why didn’t Haddle just fix it?
Didn’t say if he was an at-will employee he was. He didn’t just amend it to say that he had a contract saying he was an at-will employee. But this contract didn’t exist
P. 376, Problem 1 (a): Party calls Opponent on the telephone threatening her with a lawsuit that Party knows to be groundless. Sanctionable under Rule 11? What if Lawyer makes call?
Not actionable because Rule 11 only applies to a “pleading, written motion, or other paper”
A phone call is not a Rule 11
Problem 1(c): Lawyer files groundless interrogatory. Sanctionable under R. 11?
Yes, because this is “other paper”
Every document submitted must be signed (11(a)) by the attorney
Either lawyer or the party can be sanctioned under Rule 11, but lawyer is independently responsible
Lawyer would have been on firmer ground here if he had evidence (like photographs, etc.). But the plaintiff’s statement is evidence too.
Lawyer must perform “an investigation reasonable under the circumstances”
If the statute of limitations is about to run, you are on firmer ground
But if you aren’t up against it, you should do something more than rely on the client
(a) No, certain procedural requirements in place--Rule 11 must be a separate motion
Safe Harbor Rule: must serve motion on the other side (not with the court) and then wait for them to correct it (they have 21 days). If they don’t correct it, can file with court
(a) Affirmative obligation to correct it
(b) Yes, don’t have to fix it but you can’t advocate it later knowing that it is not true
2/7: Responding to the Complaint: Pre-Answer Motions
What did plaintiff’s lawyer do wrong? He alleged diversity of citizenship but did not specifically allege that there was complete diversity. He said: “Plaintiff and some of the Defendants are citizens of different states.” He stated that some of the defendants were South Dakota residents (which the plaintiff was too)
What portion of Rule 11 was violated? Rule 11(b)(2)-(3)
Did not allege complete diversity
Also problems with factual contentions because he didn’t bother to allege exact citizenship of the defendants
Did the district court have to impose a sanction?
No, court “may” impose sanctions; discretionary
Court could have said that defendant’s lawyer had learned his lesson
Any errors in the court’s opinion?
Not clear that 21 day rule was followed in this case before motion was presented to court
Against whom was sanction awarded? Lawyer
Could it have been awarded against the plaintiff? No, because it is not the plaintiff himself who is responsible for allegations relating to the law of diversity of citizenship
Christian v. Mattell, Inc.
What is the underlying substantive dispute? Copyright infringement of Mattell with Cool Blue Barbie of Claudene doll
What did Hicks do wrong? Mattell’s Barbie came out in 1991. Claudene came out in 1996. He refused to inspect the doll and refused to amend/do away with his complaint
Why did district court sanction him?
Failed to appear at oral argument
His behavior tossing Barbie off the table
Failure to file memo in support of motion to dismiss
Yelling at his client on videotape
Misrepresentations during oral argument
Misstatement of law in summary judgment opposition brief about the circuit’s holding…
What portion of Rule 11 was violated? Rule 11(b)(1), (3)
Why did the Ninth Circuit reverse? Rule 11 is limited to written submissions to court; it does not cover discovery abuses, misstatements made during oral argument, and conduct in litigation (also not covered because occurred during discovery period)
Why did opposing party seek a sanction even after winning on summary judgment?
One argument is that they were possibly thinking attorneys fees
Another is that they wanted to make a point…defendant will think it “won” the Rule 11 motion even if it never collected a dime from plaintiff’s counsel
Now district court will fix its opinion to only include Rule 11 sanctions
Responding to the Complaint: Do nothing -- default
Forces plaintiff to show more of their hand [12(b)(6)]
Efficient and cheap way to get rid of case
Tolls running for how long you have to answer
Answer (see 2/9)
How long do you have to respond to a complaint? 20 days, unless defendant has waived service. If they do, they have 60 days. In addition, lawyers can usually get an extension from the other side.
What is a motion? Request for a court order; asking the court to do something. See Rule 7(a) &(b)
Rule 12(h) & (g): a trap for the unwary!
(1) Multiple Rule 12 motions may be brought at once
(2) Generally, ALL rule 12 motions MUST be brought at once. Why? Would take years of litigation over rule 12 motions; this makes it more efficient
Exception: if motion is unavailable to you (ex. if defense not apparent from reading complaint)
“Favored defenses” receive special treatment (see 12(h))
“Disfavored defenses” -- 12(b)(2)-(5) -- waived if not made in first response whether a pre-answer motion or an answer
Lack of PJ
Insufficient service of process
These are all things that defendant will know immediately
“Favored defenses” -- 12(b)(1), (6), &(7) -- these cannot be waived
Lack of SMJ
Failure to state a claim upon which relief can be granted