History

Ancient writ system

Code pleading

Notice pleading

Federal Rules of Civil Procedure

Structure

Allocate different functions to different steps:

Pleading Under the FRCP

Pleadings allowed

Rule 7

Format of Pleadings

See FRCP Appendix of Forms

Complaints

Requirements

Rule 8

(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.

Rule 9

(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.

But consider implications of Twombly/Iqbal:

FRCP Form 11: Complaint for Negligence


  1. (Statement of Jurisdiction — See Form 7.)

  2. On (DATE), at (PLACE), the defendant negligently drove a motor vehicle against the plaintiff.

  3. As a result, the plaintiff was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $_____.

Therefore, the plaintiff demands judgment against the defendant for $_____ , plus costs.


Compare code pleading:

Challenging the Sufficiency of a Complaint

Motion to Dismiss for Failure to State a Claim

Rule 12(b)(6)

Meaning of Insufficiency: Even if everything in the complaint is true, the plaintiff does not show an entitlement to relief.

This may be true for two reasons:

  1. No such claim
    • Example: Plaintiff sues for “Offensive Bad Taste in Music”.
  2. Insufficient allegations to support claim
    • Example: Plaintiff sues for negligence, but fails to allege any injury.

Plausibility Standard

Bell Atlantic v. Twombly (US 2007)

Claim
Analysis

Ashcroft v. Iqbal (US 2009)

Claim
Analysis

Making Sense of Twombly/Iqbal

Steps to analysis
  1. Assume truth of all (non-conclusory) factual Allegations
  2. Ignore allegations that are mere legal conclusions
    • Treat these as “inferences” that must be plausible based on the factual allegations
  3. Assess whether the factual allegations plausibly suggest an entitlement to relief
    • i.e., if the factual allegations themselves are not sufficient on their face to satisfy the elements of the claim, do those allegations plausibly support an inference?
    • Consider plaintiff’s inference(s) against alternative explanations.
Meaning of “Plausibly”
Plausibility & Inferences

Inference: Additional fact(s) or conclusion(s) drawn from factual allegations in the complaint

FRCP Form 11: Complaint for negligence

On (DATE) at (PLACE), the defendant negligently drove a motor vehicle against the plaintiff.

Is negligence a plausible inference from the fact that defendant drove vehicle into plaintiff?

Answers

Requirements

Rule 8

(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.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

Ineffective Denials

Reis Robotics, USA, Inc. v. Concept Industries, Inc. (N.D. Ill. 2006)

Zielinski v. Philadelphia Piers, Inc. (E.D. Pa. 1956)

Facts & Procedural History
Holding & Analysis

Affirmative Defenses

Rule 8

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense …

Twombly/Iqbal and Answers/Defenses

Majority view: Twombly/Iqbal does not apply to answers/defenses

Amendments

Amending as a Matter of Course

Rule 15(a)(1)

Party may amend, without consent of opposing party or court, one time

Only allowed one time.

Must be within 21 days of:

Note that the time limit for amending under Rule 15(a)(1) depends on whether the pleading to be amended is one that requires a response under the FRCP.

If the pleading requires a response, the 21 day clock does not start running until the response is served.

Example 1: Plaintiff files & serves a complaint on September 1. Plaintiff may amend the complaint, as a matter of course, at any time before Defendant serves an answer or motion under Rule 12(b), (e), or (f), even if more than 21 days have passed since Plaintiff served the complaint.

A defendant must normally serve an answer or motion within 21 days from service of the complaint. Rule 12(a)(1)(A)(i).

Example 2: Plaintiff files & serves a complaint on September 1. Defendant files an answer or motion under Rule 12(b), (e), or (f) on September 5. Plaintiff has until September 26 to amend the complaint as a matter of course. Rule 15(a)(1)(B).

Example 3: Plaintiff files & serves a complaint on September 1. Defendant files an answer or motion under Rule 12(b), (e), or (f) on September 5. Defendant has until September 26 to amend the complaint as a matter of course. Rule 15(a)(1)(A).

Rule 15(a)

Amendment by Leave of Court

Rule 15(a)(2)

Subsequent amendments, or any amendent after the 21 day time limit, requires either

Party opposing amendment must show:

Shiflet v. Allstate Ins. Co. (D.S.C. 2006)

Facts & Procedural History
Analysis & Holding

Beeck v. Aquaslide ‘n’ Dive Corp.

Facts & Procedural History
Analysis

Relation Back

Relation back allows an amendment to assert a claim for which the limitations period expired after the original complaint was filed.

Rule 15(c)

Rule 15(c)(1)(A)
Rule 15(c)(1)(B)

Same Conduct, Transaction, or Occurrence

Examples

Blandings hires Simms to design & build a new house. Alleging that the house collapsed because Simms used shoddy materials, Blandings sues for breach of contract. A few weeks later, Blandings seeks to amend to add a claim for negligence. The limitations period for the negligence claim expired the day after the original complaint was filed.

Moore v. Baker (11th Cir. 1993)

Facts & Procedural History
Holding

Problem

Mottley sues R.R. for breach of contract, based on R.R.’s failure to honor lifetime free pass. R.R. moves for summary judgment, arguing the contract is void based on federal statute prohibiting free passes. Mottley seeks to amend, asserting claim that R.R. fraudulently induced Mottley to accept free pass in settlement of personal injury claim, knowing it would be void.

Change of party or naming of party

15(c)(1)(C)

Relation back is permitted if, within period for service under Rule 4(m), newly-added or newly-named party:

Mistake Concerning Party’s Identity

Worthngton v. Wilson (7th Cir. 1993)

Facts & Procedural History
Holding & Analysis
Questions
“John Doe” defendants

Palacio v. City of Springfield, (D. Mass 2014)

Facts & Procedural History
Holding & Analysis

Krupski v. Costa Crociere, S.P.A. (US 2010)

Facts & Procedural History
Issue
Analysis
Question

Good Faith in Pleadings

Signature

FRCP Rule 11(a)

Representations

Rule 11(b)

Representations to the Court
Standard

Cf. Model Rules of Professional Conduct Rule 3.1 (“Meritorious Claims and Contentions”)

Sanctions

Imposition of sanctions
Nature of sanction: Rule 11(c)(4) & (5)

In re Kunstler (4th Cir. 1990)

Facts & Procedural History
Holding & Analysis

Turton v. Virginia Dept. of Educ. (E.D. Va. 2015)

Facts & Procedural History
Defendant’s Arguments & Court’s Ruling

Good Faith Arguments for Change in Law

Hunter v. Earthgrains Co. Bakery (4th Cir. 2002)

Facts & Procedural History
Issue
Analysis
Standard
Postscript

The attorney in this case, Pamela Hunter, was censured by the NC State Bar Grievance Committee in 2010, for her conduct in connection with a medical malpractice case. Matter of Hunter, 10G0295 (2010)

Improper Purpose

Sussman v. Bank of Israel (2d Cir. 1995)