THE AMERICAN REFORM EXPERIENCE

Attack on Cl pleading statement was the passage of the Code of Civil procedure or Field code
Abolished the existing forms of actions and mandated that there be but 1 form of action From the field codedifficulties
arose as the what the common facts here.
Complainta statement of the facts constituting the cause of action in ordinary and concise language
Answera specific denial of each material allegation of the complaint controverted by the D and a plain and concise
statement of any new matter constituting a defense or set-off without unnecessary repetition.

Case: Gillispie v. Goodyear Service Stores (1963)SC of NC

Facts:
1. P alleges
a. Each of 4 Ds are citizens and residents of NC
b. GY Tire and Rubber Co: corp. doing business in NC and store in NC
c. GY Service stores is a division

2. Ps Complaint
a. Ds without cause or just excuse, maliciously came upon and trespassed on her premises/residence
b. Used harsh and threatening language and physical force directed a P; assaulted P, put her in fear; humiliated
and embarrassed her by public scorn and ridicule; caused her to be seized and exhibited as a public prisoner and
confined to jail If youre the D you know that date, and occupied as a residence. Might give you enough to
answer the court. But if you were the court1) what are the claims being asserted 2) what the elements.
3. Ps requested damages
a. $25k malicious and intentional assault
b. $10k punitive damages
PP:
1) Trial Court Sustained Ds demurrer because P failed to state facts sufficient to constitute cause of action (demurrer like
motion to dismiss for failure to state a claim)
Issue:
1. Was Ps complaint okay/sufficient? No (just legal conclusions)
Holding/ Rationale
1. Complaint must contain
Plain and concise statement of the facts constituting a COA, facts not conclusion, those determinate of Ps right
of relief
Material, essential and ultimate facts upon which Ps right of action is based.
When just conclusions fails to state COA + is demurrable
Maybe hiding a relationship to give the ds the right to do this (maybe be on the land or other allegations).

2. Tort: violation of some legal duty by the D.complaint should state facts suff to show legal duty and its violation resulting
in injury to P
In action based on negligence, must show 1) facts which constitute the negligence and 2) facts which show
proximate cause
Parker v. White TC judge and D must know the exact right P seeks to assert or the legal wrong for which he
seeks redress before there is any trial.

3. In this Case: P alleges that D without cause or just excuse maliciously trespassed upon her premises, assaulted her, and
caused her to be seized and confined as a prisoner
Did not include: who did what, where it occurred, what occurred, or any other relevant factual data
P must make out his case according to allegations
Considered in a light most favorable to P.
Stivers v. Baker petition alleging d assaulted P but didnt have any facts about how the assault was made just
conclusion of law; ct held it to be demurrable
o Statement of facts necessary 1) enable opp party to form an issue 2) inform him of what his adversary
intends to prove 3) enable ct to declare law upon the facts stated
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 Shapiro v. Michelson the use of the expression assaulted is not a fact but statement which expresses a
conclusion

4. Affirms Demurrer: complaint does not state facts sufficient to constitute any COA
Concerned that p omitted things that showed that they were acting under some type of immunity.

Notes and Questions

1. 3 General Purposes for Pleading Requirements
a. Notice to D: fair that D given notice of what the P is upset about
b. Notice to the Ct: giving the ct guidelines for determining whether discovery sough or evidence offered at trial is
relevant to the case.
c. Deciding the Merits: factual basis to which the ct could apply the law. Terminate suits at an early stage. Whether
the P has asserted a claim upon which relief can be grantedif the facts can be proved they would be entitled to
relief under the law.
d. Having too many facts is better than having too few. Plead a lot of factual stuff is not likely to be thrown out for
failure to state a claim. Have been occasion where they have thrown out complaints because they were so lengthy
and undifferentiated.
e. No bright lines between Legal Conclusion|====Ultimate Facts (Elements of COA)======| Evidentiary Facts.
i. Suits would be decided on pleading failures than on their real merits.
ii. It id not use a standard of facts constituting a cause of action FRCP: statement of a claim on which relief
can be granted
2. Objective of the Pleadings
a. Ct ask whether P has adequately pled elements of the claim (defined by substantive law)
i. Assault: 1) intent to cause harm/offense contact with person OR imminent apprehension of such contact
2)person put in such imminent apprehension
ii. False Arrest/Imprisonment: 1) acts intending to confine the other within boundaries fixed 2) actor directly
or indirectly results in confinement 3) other is conscious of confinement/harmed by it
iii. IIED: 1) Extreme and outrageous conduct 2) intentionally or recklessly results in such a confinement by
the other and 3) the other is conscious of the confinement or harmed by it.
iv. Trespass to land: 1) intentionally enters land in the possession of another and 2) remains on the land.
3. Ultimate Facts: derived from the elements of the substantive claim
4. Leave to Amend if complaint is deficient, courts will usually dismiss without prejudice and grant P opportunity to file an
amended complaint before dismissing suit.
a. In Fed Ct: sometimes cts must provide such as chance to re-pled
b. Thinket Inck Info v. Sun Microsystems dismissal without leave to amend is improper unless it is clear that the
complaint could e be save by any amendment.
c. Bradley v. Val-Mejiasit is proper to deny leave to amend if the amendment would be futile because it would be
subject to dismiss
5. Ordinarily: D was said to admit Ps well-pleaded allegations by demurring and ct would not consider anything else but rules
became a little bit more relaxed
a. Ruling on 12b6 motion to dismiss, If dc considers evidence outside the pleadingsit must normal covert motion
into a Rule 56 motion for summary judgment. Must give the nonmoving party an opportunity to respond
b. However, Ct can consider certain materialsi.e attached documents to the complaint without converting the
motion to dismiss. Even if not attached it may be incorporated by reference or the document forms the basis of
the complaint.
i. Tellabs Inc v. Makor Issues and Rightsreferring to other sources cts ordinarily examine when ruling on
12b6 motionsdocuments incorporated into the complaint by reference and matters which a ct may take
judicial notice
ii. Jones v. City of Cincinnati Ps attachment to complaint of a transcript containing D;s version of events
did not mean that P adopted ds version of events
iii. Bogie v. Ronseberg when an exhibit incontrovertibly contradicts the allegation in the complain, the
exhibit ordinarily controls, even when considering a motion to dismiss.
iv. Green v. Brown & Williamson Tobacco Co ct takes judicial notice on Rule 12b6 motion that consumers
were aware that cigarette smoking posed health risk and rejected Ps product liability claim based on the
consumer expectations test.
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8 a2: intended to be more liberaleverything did not need to be included in the complaint. It didnt require the legal theory be
spelled out as long as it was inferable.

B. DESCRIBING AND TESTING PLAINTIFFS CLAIM

1. The Problem of Specificity
Rule 8(a)(2): requires only that P prove a short and plain statement of the claim showing that the pleader is entitled to
relief.
Rule 12b6: failure to state a claim upon which relief can be granted
Rule 12c: motion for judgment on the pleadings
Rule 12 e: motion for a more definite statement
Rule 12f: motion to strike portions of the pleading
Rule 13f: motion to strike
Rule 15: Right to amend
Rule 56: Motion for SJ
Dioguardi v. Durning: court reversed dismissal of an obviously home drawn complaint against the Collector of Customs for
mishandling imported merchandise because however inarticulately they may be statedthe P has disclosed his claim and
we do not see how the P may properly be deprived of his day in ct.
Resistance to the relaxed general pleadings
o Conley v. Gibson: (relaxed pleadings): P were African American members of a union who alleged that their union
maintained 2 separate locals one for white member and other for black membersblack members were afforded a
representation inferior and different to white members.
Complaint: union agreed to the abolition of 45 jobs held by Ps and the hiring of white union member to
replace them
Claimed that discriminatory action violated rights under federal Railway Labor act
Ds move to dismiss for failure to state a claim: didnt include specific facts about
discriminationREJECTED SC followed accepted rule that complaint should not be dismissed for failure
to state a claim unless it appears beyond a doubt that the P can prove no set of facts to support his claim.
Held:
Only require a short an plain statement of the claim that will give D fair notice

Sutliff Inc v. Donovan coheavy cost of modern federal litigation especially antitrust litigation and the mounting caseload
pressures on the federal ct, counsel against launching the parties into pretrial discovery if there is no reasonable prospect
that the P can make out a cause of action from events narrated in complaint.
DM Research v. College of American Pathologist the price of entry even to discovery is for P to allege a factual predicate
concrete enough to warrant future proceeding which may be costly and burdensome.

Case: Us v. Board of Harbor Commissioners (1977)USDC of DE

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 Facts:
1. Ds moved pursuant to Rule 12e for a more definite statement on the ground that the complaint filed
against them by the government is so vague and ambiguous that they are unable to frame a responsive
pleading as require by rule 11

2. Complaint alleged
a. Ds own and operate on shore facilities located on or near Wilmington Marine Terminal from which
oil was discharged into the DE River
b. Prohibited by 33 U.S.C S1321 b 3 and the owner or operator of a facility responsible for the
discharge of oil in or can be held liable for costs incurred for removal of oil

3. Ds Arguments: P 11 is too vagueFAILS TO SPECIFY

a. 1) which Ds are responsible for the alleged discharge of oil says each of them
b. 2) the amount of oil discharged + removal costs incurred statute doesnt require a specific amount ;
P may not know at this point total costs.
c. 3) actions which are alleged to have caused the discharge P probably dont know what actions
caused it.
Holding/ Rationale
1. Motion for more definite statement under Rule 12e is ordinarily restricted to situations where a pleading
suffers from unintelligibility rather than the want of detail
If the req of Rule 8 are satisfied and the opposing party is fairly notified of the nature of the claim,
Rule 12e motion is inappropriate.

2. In this case
Complaint on its face can be fairly read to charge each of the ds with owning or operating on shore
facilities which discharged oil into DE river or that each of d took actions causing oil to be discharged
It fairly notifies d of the nature of the claim against them
D motion for a more definite statement was really an effort to flesh out the governments case
Evidentiary information they seek is more appropriate under Rules 26-36.
Denied motion.
D burden to prove and plead act of god/war/negligence of 3 rd party.

Notes and Questions

1. Complaint that is too long or detailed to run afoul of the short and plain statement of the claim requirement.
a. Mendez v. Draham: complaint had 1-20 numbered paragraphs in 392 pages and ct granted ds motion to strike,
would have taken superhuman patience and effort to read
b. McHenry v. Renne: the court upheld dismissal of a complaint that did set forth a claim because p refused to obey
the DC judge order that he abandon the novelized form he adopted which read like a magazine story.
c. Hearns v. San Bernarndino Police Dpt: asserting that verbosity or length is not a basis by itself for dismissing a
complaint under Rule 8a.
d. Davis v Ruby Foodsrejecting dismissal of a cluttered complaint and holding that the most that could be done
was to strike the surplusage.
2. Could the court have required more detail
a. Acuna v. Brown and Root Inc 1,600 Ps sued over 100 ds in related cases before the DC alleging injuries due to
the D;s uranium mining activities. Before discovery, the DC ordered ps to submit affidavits specifying the injuries
or illnesses haye suffered and identity the facility though to be the source. P responded with a form affidavit from
1 expert that generally identified a series of maladies that can be caused by exposure to uranium
i. DC dismissed. AC affirmed Each P should have had at least some info regarding the nature of his injuries,
the circumstance in which he could have been exposed and bases for believing that d was responsible.
b. Feliciano v. DuBois case management order requires pro se P on plain dismissal of his suit challenging
conditions in the person he was confined to file a written submission station with at least an outline of the facts
and the legal grounds of each claim.
3. Most other countries insist on more detailed and focused pleadings.
4. Rule 12f authorizes motion to strike portion of a pleading that are redundant immaterial impertinent or scandalous

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 a. Atraqchi v. Williams ct strikes complain that contains the wildly immaterial delusion and pathological allegation
that these pro se ps have made about a world wide religious inquisition , illegal wire tapping by the government
and other to homo-sexualize them and convert them to this cult and conspiracy against black people.
b. Whittlestone Inc v. Handi-Craft Coholding that Rule 12 b 6 motion rather than rule 12 f motion is proper
method to challenge a request for lost profits on the ground that claim is barred by the parties contract.

2. Consistency and Honesty in Pleading

A. Inconsistent Allegations

Case: McCormick v. Kopmann (1959)AC of IL 3rd District

Facts:
1. Ps husband Lewis McCormick was killed when a truck operated by D (Kopman) collided with his automobile.
Sue both under Rule 20arise out of same occurrence and raise CQ of Fact.
2. P sued K and Hulsowners of a tavern where MC had drunk beer before the accident
a. Count 1: damages under the IL Wrongful Death Act alleged Kopmann negligently drove his truck
across the center line and collided with MC automobile and that the husband was using ordinary care
for his own safety and that of his property.
b. Count 4: (brought in the alternative of Count 1) sought damages under the IL Dram Shop Act. Alleged
that Huls sold alcoholic beverages to MC which rendered him intoxicated and as a result he drove his
automobile in such a manner to cause collision with K

3. Ks Arguments:
a. 1) TC erred in denying his pre-trial motion to dismiss the complaint because they contain inconsistent
allegation.
i. Ct acknowledges that the two complaints cannot be reconciled with each other. (Freedom
from contributory neg is a pre-req to recovery under the Wrongful Death Act)

PP:
1. Before Trial K moved to dismiss the complaint because the contradictions between count 1 and 4 were fatal
2. TCdenied motion. D motion for directed verdict was denied, jury returned verdict for $15,500 against K
3. K appealedwhere the case is now

Holding/ Rationale
1. Counts 1 and 4 are mutually exclusive and can be pleaded together (p cannot recover under both)
IL Civil practice act contains provision similar to FRCIV PROV 8d2: claims may be made in the alternative
regardless of consistency because on trial the proof will determine on which set of facts if any the p is
entitled to recover.

2. Sound Public policy weighs in favor of alternative pleading

Controversies may be settled and complete justice accomplished in a single action
However, if pleader has knowledge of the true facts ---he knows that facts belie the alternative ---
pleading is not justified. More economical to have the case go together on the whole. Might you think
he is fine when he is actually impaired.
o Church v. Adleralternative pleading is not permitted when in the nature of things the
pleader must know which of the inconsistent averments is true and which is face. P must
know whether she will be sick sore and lame for the rest of her life or whether she has
regained her health as alleged in count to. She must make up her mind and strike inconsistent
allegation from pleading.

3. In this case nothing in record to indicate that P knew in advance of trial that the averments of Count 1 and
not Count 4 were true
Key witness is deceased, pleading alternative set of facts is often the only feasible way to proceed.

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 P had the right to go to trial on both counts.
P does not have to choose between the alternative countsentitled to join them in a single action,
introduce all of the proof and submit the entire to case to jury with appropriate instructions.

Hypo: heard a rucus either she hit her or she didnt hit her.
Notes and Questions
1. Advantages of suing them both at the same time: substantial likelihood that each D will help the P make out a case against
the other.
2. Make allegations on information and belief asserting that the pleader is not claiming person knowledge as to these
matters although they are believed to be true.
a. Fed rules generally do not require verification but rely instead on lawyers signature on a complaint to show that it
is justified. Code parties that the had to be verified and when that could not be donecould make allegations on
information and belief which they believe it to be ture
b. Surowitz v. Hilton Hotels Corp ct examined verification req in rule 23.1. P a Hilton shareholder charged that the
officers and directors of the company had defrauded it of several million dollars. P verified that she knew some of
the allegations were true and that on information and belief she though that the other allegations were trial.
i. TC allowed D to take Ps deposition before filing their answershowed that P a polish immigrant with
limited command of English did not understand or know what the lawsuit was about; she relied on her
son in law an investment advisor for Harvard who under covered the fraud. Dismissed as sham pleading
ii. SC reversedthe record showed the charges to be based on reasonable beliefs growing out of careful
investigation
c. PAE GVT services Inc c. MPRI INC courts general receptiveness to inconsistent allegations. At time filing, parties
are often uncertain about the facts and the law dont require complaints to be verified and allow pleadings in the
alternatives.each party learns more through litigation as it progresses
d. Astor Chaufferured Limousine v. Runnfeld Invest Corp cts allow pleading I never borrowed the lawn more, it
was broken when I borrowed it, and I returned it in perfect condition
e. Smith v. Cahsland Inc D ps former employer could attempt to prove not only that P was not terminated a she
claimed but that the firing would have been justified by her poor performance. Employer should have been
allowed to try to prove a hypothetical decision to terminate based on a leg, non-descrim motive.
f. Henry b. Datyop village Incp who claimed she was fired for discriminatory reasons and was not guilty of
misconduct charged against her could argue that even if she were guilty, white employees who engaged in similar
behavior were not fired.
3. Importance in Product Liabiity Suits: ie sue everyone that worked on truck because P could not ell who was responsible
and have different theories.

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B. Certification by SigningRULE 11
Case: Zuk v. Eastern Penn Psychiatric Institute of the Medical College of Penn
(1996)US CT of Appeals 3rd Circuit
Facts:
1. Zuk a psychologist on the faculty of EPPI had a technician film two of his family therapy sessions.
a. Had EPPI duplicate the films and made them available for rental through its library
b. Wrote a book which contained transcripts of the therapy session + copyrighted the book

2. (1980)After a change of ownership EPPI layed off Zuk who requested that all copies of the film be returned to
him
a. DPPI ignored request and continued to rent it out

3. (1995) Lipman filed suit on Zuks behalf alleging that EPPI was renting out the films and infringing its copyright.
14 years? A court can dismiss on SOL on the fact that it is filed late appears on the complaint. This complaint did
not allege that copyright infringement occurred prior to the 3 years proceedings. Failure to allege acts that are
copyright infringement.

4. EPPI moved 1) for dismissal under 12 b6 and 2) moved for sanctions under rule 11 C 2on the grounds that
appellant had failed to conduct an inquiry into the facts reasonable under circumstances and into the law.
a. DC entered motion to dismisscopyright did non extend to the films and that EPPI owned the films,
EPPI use was not infringement and Zuk was barred by SOL

5. Aug 16, 95 EPPI filed motion for attorneys fees pursuant to 17 USCA S 505
a. Ct held Lipman and Zuk: jointly and severally liable to D for counsel fees for $15k
b. Zuk settled for $6,250 leaving Lipman liable for $8,7250

PP:
1. DCdismissed action on a Rule 12 b 6 filed by D: Lipman and Zuk were subjected to joint and several
liability($15k in sanctions and D counsel fees)
a. Zuk Settled and Lipman appealed

2. APPEALSUS DC for Eastern District of Penn (Lipman): attorney for Zukwhere the case is now
a. Affirms in part and vacate in part
Issue: Could the sanctions be imposed under 28 USCA S 1927? No.

Holding/Rationale

1. Copyright Act: ct may award a reasonable attorneys fee to the prevailing party. (does not depend on showing of
bad faith) Entered only against the partyno basis for an award against the attorney.
Have to be justified under 28 USCA S 1927 or Rule 11

2. Review DC decision to impose sanctions under 28 USCA S 1927: standard abuse of discretion
Section 1927: any attorney or person admitted to conduct cases who so multiplies (making them
burdensome )the proceedings in any case unreasonably and vexatiously may be required to satisfy the
excess costs expenses and attorney fees incurred
Principal Purpose: deterrence of intentional and unnecessary delay in the proceedings.
Have to find willful bad faith on the attorney: Counsel for EPPI conceded that DC had made no finding of
bad faith
In this case TC imposed sanctions on P and counsel not because of any multiplicity of proceedings or
delaying tactics but for failure to make a reasonably adequate inquiry into the facts and law before filing
the lawsuit
Statute does not apply to facts here and statute is designed to discipline counsel only and does not
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 authorize sanction of attorneys client.

3. Proper Type and the Amount of Sanctions to be imposed pursuant to Rule 11. (No error with sanctions
according to rule 11)
Rule imposed a duty on counsel to make an inquiry into both the facts and law which is reasonable
under the circumstances.
Inquiry into the Fact:
o Rentals in the prior three yearsHighly probable that the Ps claim are barred by the 3 years
statute of limitations (SOL is an affirmative defenseRule 8c)
o Library staff was cautioned not to rent out his films. Zuk had no evidence that films were being
rented out for those 3 years.
o Dont think that further information would have been obtained during discovery.
o Needed a reasonable investigation with respect to distribution of the film during the 3 year
period prior to filling because the long period allegedly spanned the distribution

Inquiry into the Law: Personal Property law and Copyright Law.
o Rule 11 B 2 requires that all claims, defenses, and other legal contentions be warranted by
existing law or by a non-frivolous agreement for the extension, modification, or reversal of
existing law or the establishment of new law. Requires certify legal contentions are warranted
by law. By either 2 prongs.
o Look at whether his legal arguments are warranted by law.
o 1) Copyright law Registration Issue
1st copyright case he handled; thought by registering a book Zuks films were also
protected because book contained transcripts of the films
Had he presented argument as a matter of first impression + for a new interpretation
of the statue where same individual authored both works might have had more
footing. As far as derivative work goes. Had no claim under existing law because
copyrighting the book did not give him copyright in the films. If he argued that court
should recognize an infringement claim based on the pre-existing work when it was
based on the same person it could maybe have succeeded.
o 2) Law of Personal PropertyOwnership Issue
Agree that if EPPI owns the copies of the films in its possession than 17 USCA S 109
permits EPPI to rent out the films Ask to receive their rental records (then you could
see evidence) Try to rent it out.
SOL is 2 years (appellant claiming that he owns it) and EPPI possession was open,
notorious, and under a claim of right and Zuk did not do anything. EEPI holds superior
title. (adverse possession)
12b6 and rule 11 sanctions Bivens federal narcotics case can be dismissed 12b6 making an non frivolous argument
and be subjected to sanctions.
Rule 21: was not complied withnormally it would be no sanctions. At oral argumentsaid that he would not have
withdrawn the claim given the full 21 day safe harbor.
If you say withdrawthen you are saying that something is wrong.and if you say that I wouldnt have withdrawn
itthen court may find that you have violated rule 11. Its not the equivalent of being given a safe harbor.

4. Type and Amount of Sanctions Imposed

Main purpose of Rule 11 is to deter not to compensate
Contemplates greater use of nonmonetary sanctions, including reprimands, orders to undergo
continuing education and referrals to disciplinary authorities.
Min that will adequately serve to deter the undesirable behavior
Factors to consider: whether attorney has a history of this sort of behavior, ds need for compensation,
degree of frivolousness, willfulness of the violation. Doering look at his ability to pay (25k sanction
when made 40k year was reduced) assess ability to pay
Error to to invoke without common a very severe penalty (even though faces a lesser financial
burden)on remand ct should adjust penalty thinks that the sanctions here were to harsh.
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Notes and Questions

1. 1983 version resulted in too much sanction activity, deterred litigants from dropping weak contentionsmandatory nature
of the sanctions.
2. Stove Builder International Inc v. GHP Group: made the imposition of sanctions discretionary, introduced the safer harbor
in rule 11 c2 and reoriented the choice of sanction toward deterrence and away from compensation.
3. In re Pennie & Edmonds: if sanction is too sever lawyers will be deterred from making legitimate submissions on behalf
clients out of apprehension that their conduct will erroneously be deemed improper. If sanction is too lenient, lawyers
might be emboldened to make improper submission on behalf of clients, confident that their misconduct will be
undetected or dealt with too leniently.
4. S 1927: authorizes sanction for willfull multiplication of proceedings
5. Rule 11
a. Signature RequirementApplies to the person who signs the document submitted to the court, ordinarily a
lawyer and authorizes sanction against the lawyers firm. Except for discovery, rule 11 applies to all papers filed in
ct.
b. Factual Inquirythe lawyer represents that there has been a reasonable inquiry and that the claim has
evidentiary support. Calls for an objective inquiry.
i. Lichtenstein v. Consolidated Serv. Group, Inc. a party who brings a suit without conducting a
reasonable inquiry and is rewarded for his carelessness, is liable for sanctions.
ii. Garr v. United States Healthcare Incattorney who did an inadequate prefilling inquiry should not be
shielded due to the stroke of luck that the document happened to be justified.
iii. Moore v. Keegan Management Co DC that imposed Rule 11 sanctions for failure to conduct proper
pre-suit investigation erred by refusing to consider factual evidence counsel obtained after filing suit that
would have adequately supported the complaint had it been available before.
iv. Q-Pharma Inc v. Andrew Jergens Co after the suit was filed d refused to provide information about the
contents of its hand lotion that would have permitted the P to determine that its patent was not
infringed; sanctions were denied even though P could have conducted its own chemical analysis before
filing the suit
v. P may not embark on a fishing expedition by using speculative pleading then pursuing discovery to
support it.
vi. Lawyers must decide when to file when there is a factual uncertainty
1. Albright v. Upjohn Cocase decided under the 1983 version of rule 11. P claimed that she had
been injured because of a treatment she received as a girl with tetracycline based drugs. Her
lawyers investigated and found medical records from 2 drs who had treated her but as SOL was
running out were unable to find records about the treatment she had received from another dr
who had since died.
a. Sued: the pharmaceutical companies who tetracycline products had been prescribed by
the 2 drs + UPJOHN a major producer of tetracycline even though they had no evidence
that the deceased dr used their products.
b. AC held that the lawyers should be sanctioned for suing Upjohn because there was no
likelihood that the additional medical record would be located. Lawyers are in a hard
place if they sue him they could be sanctioned because they dont have evidenceif
they dont sue him the SOL would have barred the claim if they later came up with
evidence. Tough situation. IF p sued Upjohn as part of the industry on enterprise liability
theoryonly use theory when drug is generic whom who the drug has came. Could
identify some of the manufactures. Improper use of that theory.
2. UY v. Bronx Municipal Hospital Centersuit charging discriminatory discharged based on
national origin in which P claimed he was told he could be fired because he was a foreigner. After
Ds witnesses contradicted that assertion, DC found Ps lawyer guilty of violating Rule 11. Not
doing adequate financial assertion.
a. AC reversed. The attorney had no way of ascertain before he entered into
representation whether the ds witnesses would corroborate or contradict ps assertion.
Witnesses were unlikely to make themselves available to be interviewed by an attorney
contemplating represented the P. the only way to discover what adverse would say is
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 through discovery after the complaint. Some Cts dont require a factual inquiriy of the
adversary.

vii. Can lawyers just rely on clients words? If the facts can be easily corroborated. May be characteristics of
client of situationthat suggest to you unreliability. (ie if the client ahs memory impairment, if they have
been convicted of perjury. Including how much time you have.) What is reasonable investigation how
much time they have is the SOL about to run out.
1. Lawyers can be conned by clients
2. In re Taylor: Ct was confronted with the question of the degree to which an attorney may
reasonably rely on representations from her clients. Lawyers constantly rely on statements and
information provided by their clients. Difficult to imagine how attorneys might function were
they require to conduct independent investigation of every factual representations.
3. When is it not reasonable to rely on clients words
a. In re Pennie & Edmonds trademark case, the ct found in connection with the Ps
motion for preliminary injunction that Ds evidence that he had first used the trademark
before p had used it was false. D retained new counsel and said made a mistake in
supplying the evidence.explained that he was telling the truth submitted his affidavit.
Judge ordered ds new lawyer to show why the should not be sanctioned for submitting
the affidavit which judge said was false. Sanctions were improper because the DC
accepted the new lawyers assertion that they were acting in good faith.
b. Jimenz v. Madison Area Technical College upholding sanction on Ps lawyers who told
ct that it was his standing position to side with the client whenever a creditability call is
presented. When a lawyer property relies on the client, the client can be sanctioned
even if the lawyer committed no violation to the rule.
c. Business Guides v. Chromatic Communications magistrate did not recommend that
the law firm be sanctioned for the initial application for a temporary restraining order
however as the firm had been led to believe that there was an urgent need to act
quickly thus relied on the information supplied by its sophisticated corporate client.

viii. RULE 8 (C) : SOL is an affirmative defense, which only applies if D raises it
1. Sanctions where P lawyer did not even inquire as to whether the SOL had run or jx was
proper.serve to remind counsel to prepare adequate before filing suit.
Was it right to commit case under 12b6..safe harbor provision of rule 11 and whether it ws
pproperiate for court here to ask at oral argu if he wuld have withdrawn the complaing..ct
actual sanctions imposed were proerpt (non rule 11 basis for sacncti

c. Legal Inquiry: S 17 USCA S 411 (b) no action for infringement of the copyright in any US work shall be instituted
until registration of the copyright claim has been made
i. S 130 (b): the copyright in a compilation of derivative work extends only to the material contributed by
the authors of such work, as distinguished from the pre-existing material employed in the work, and does
not imply any exclusive right in the preexisting material. The court understood this provision to mean that
the (a derivate work or compilation) did not extend to the films which were preexisting material
employed in the book.
ii. Thornton v. Wahl failure to clarify that argument was not based on existing law can be sanctioned.
iii. Golden Eagle Distribution Corp v. Burroughs Corp no need to explain that argument is for an extension
of the law rather than based on existing law.

d. Harassment: Sanctions are warranted under Rule 11 b 1 for actions that harass or needlessly increase the cost of
litigation.
i. National Asociation of Gvt Employees Inc v. National Fed of Federal Employeeswe do not condone
litigation institution for the purpose of ulterior purposes rather than to secure judgment on a well-
grounded complaint the plaintiff sincerely believes. If an initial complaint passes the test of non-
frivolousness, its filing does not constitute harassment of the purposes of rule 11.
ii. Sneller v. City of Brainbridge Island p landowners sued the city when it denied them permission to
develop land within a recognized wetland, and they also sued individual city employees. D served a Rule
10
 11 motion demanding dismissing the claims against the individual employees on the ground they could
not be sued for what the cited die and the Ps dropped those claims and file different ones against the
employees. Ct held that this was not sacntionable under the safer harbor . Dissent P tried to harass and
intimidate the public employees so sanctions should be allowed under Rule 11(b)(1)

e. Later Advocating: divided whether sanctions could be imposed where a party had a legitimate basis for filing
when it was made but later learned that it was unjustified.
i. Rule11b: sanction may be imposed on a lawyer for later advocating a position taken in a paper even
though no violation occurred when the paper was filed. Or later advocating ityou do look at later
advocating as well as the initial advocating to the court. You can be sanctioned than continue advocating
then you could be sanctioned.
ii. Photometric Inv c. Economy Ins of America P sued for patent infringement and DC stayed proceeding
pending a decision by the Fed cr on the construction of the patent in issue. Federal C construed the patent
in in a way that undermined the claims ps counsel told the DC it would continue to pursue the claims. D
served a rule 11 motion demanding dismissal and counsel respond that AC decision was mistake. AC
affirm the imposition of sanctions for persisting the litigation.

f. **11 c2: Safe Harbor: ct may imposes sanctions on motion only if the violator has been warned and invited to
desist
i. Provision was promoted by reports that parties raising rule 11 requests were reluctant to withdraw
positions for fear of strengthening the sanctions motion. (if you have be served a motion for
sanctionyou have 21 days to withdraw you pleading or correct your pleading---only if you dont does
the motion gets filed and ct gets to rule on it.)
ii. Giganti v. Gen X strategies incsafe harbor not available because ps never had any intention of
withdrawing their claims.
iii. Cts have applied safe harbor req virgoursly: Ridder v. City of Springfield DC granted summary
judgment to ds when the P could not come up with any evidence supporting his allegations the city had
engage in an illegal custom or practice in a case that required such proof. A month after motion, city
moved for Rule 11 sanctions. Ct: treated the safe harbor provisions as an absolute requirement held that
the city had lost the opportunity to move for sanctions by waving until after summary j was granted to
serve its motion because ps counsel might have withdraw the claim if warned of sanctions possibly. A
party seeking sanctions must leave sufficient opp for the opposing party to chose whether to withdraw or
cure the offense voluntarily before the court disposes of the challenged contention
iv. Barber v. Miller: after Ds motion to dismiss was granted it was too later for d to ever a sanctions motion
cause counsel could not then withdraw the claim
v. Full formalities of a motion are not always necessary
1. Matrix Inc v. American National Bank & Trust Co. ds counsel setn a letter to P counsel two
weeks after org complaint was filed pointing out problems with the case and asserting that the
filing violated rule 11. More than 2 years later DC dismissed case and d made a rule 11 motion Ct
held a letter informing the opposing party of the intent to seek sanctions and the basis for
imposition of sanctions is insufficient or rule 11 purposes.

6. If court decides to sanction Rules 11 c4 and 5 provide directions on what the sanction should be: Sanctions do not need
to be monetary.
a. In Re Pennie and Edmonds sanctioned firm required to send copies of the courts sanction opinion to every
lawyer in the firm.
7. Non-Sympathetic Judicial Attitude is Common
a. Rentz c. Dynasty Apparel one of the sanctioned lawyers was his first job after law school and had been following
direction from the partner for whom he work a former mayor when he signed the offending document. All
attorneys regardless of experience level or position are equally subject to Rule 11s obligation to conduct a
reasonable inquiry into the law and facts before sign the papers
8. Other Grounds for actions
a. Chambres v. NASCO IN federal courts have inherent power to sanction a litigant for bad faith conduct that has
not been displace by the more specific provision of Rule 11 and S `927 should be used rarely.
b. Need specific finding of bad faith
11
 9. Victim of litigation misconduct of the sort that may justify rule 11 sanctions may file a separate lawsuit against the
lawyer for misconduct.
a. General Refractories Co v. Firemands Fundsholding that using legal process primarily to harass an adversary
could constitute perversion of that process actionable as abuse of process under Penn la.
b. Zamos v. Stroud: holding that a lawyer could be sued for malicious prosecution if he continued to pursue a suit
after learning that it was groundless

3. Scrutinizing the Substantive Sufficiency of Plaintiffs

12b6 : if take all factual allegations assumes to be true all of the factual conclusions.
Consider things, which they can take as judicial, notice (rules of evidencethings that are beyond dispute. Like march 31
was a Monday.
There is grey area between FACT------| LEGAL CONCLUSION.
CAN RAISE 12b 6 motion WHEN???: Immediately before (pre-answer), in the answer in the complaint, in a motion for
judgment on the pleadings 12c, or at trial.
Stating a claim is all about the complaint period.dont want this to be argued to be waived.
After 12(b6): usually grants leave to amend (have to make sure that you get it) W/out leave under 41bit is a final
judgment and you would not be able/permitted to file a new suit making the same claimres judicada.
o Denywhen the problem is not curable 2) including repeated failures.
o Plaintiffs Choices: 1) Amend or 2) Stand on your complaint DC will dismiss w/o leave and P can file and
appeal. If P appeals 1) if P wins, ct reinstates the action 2) if P loses, affirms dismissal, then you dont have
leave to amend.
o At trialIF P loses and may say that TC made all kinds of errorsit erred it requiring amendment of the complaint.
Might be an error that caused a reversal.

Case: Mitchell v. Archibald & Kendall Inc. ( 1978)US Ct of Appeals 7th Circuit
Facts:
1. Mitchell, his wife, and 2 grandchildren drove a truckload of A+K products from NJ to Chicago at A and K
warehouse.
a. But when they got there another truck was unloading at the dock.
b. Mitchell was told by A and K employees to park the truck on the adjacent street, Fulton, until it was
available
c. 2 men approached him and demanded his money, when he said no, one men produced a 12 gauge shot
gun and shot him in the face (3 ft away)blast caused permanent injuries to his face.

2. Mitchell argued that A and K knew or should have known of the high risk of drivers being subjected to a
criminal attack and assault while parked because there was an armed robbery 3 weeks earlier.
a. Mitchells had no knowledge or means of becoming aware of the inherent, risk, dangers, and
probabilities of criminal assault.
b. Complaint set forth five duties which A +K breached
i. Duty to exercise ordinary care to maintain its premises and adjacent areas in a reasonably safe
condition so as to avoid leading Mitchell into a dangerous and perilous risk of injury by
criminal conduct of 3rd parties which they were aware
ii. Duty to exercise reasonable care to provide a reasonable safe means of ingress and egress to
the areas owned by A=K and beyond precise boundaries.
iii. Duty to exercise reasonable care to protect them from criminal acts of 3 rd persons while on
A=K premises and beyond such boundaries to provide a sufficient number of servants or
employees to afford protection to invitees
iv. Duty to give adequate and timely notice of warning of latent or concealed perils which were
know to A=K but not to them
v. A+K duty to keep its premise and immediate adjacent area reasonably well policed and to

12
 exercise reasonable care
PP:
1. DC: dismissed Mitchell claim 12 b6 failure to state a claim for which relief can be granted.
Issue:
1. Whether the owner/occupier of land has a duty of reasonably guarding an invitee against criminal attack that
take place beyond the boundaries of his premises on a public street? No
Holding/ Rationale
1. Claimed error in DC Use of Rule 12b6 (not really)Proper to dismiss on 12b6
DC found that Ps injuries occurred not on Ds property but on a public street. Factual dispute as if to
on the premises cannot be resolved by a motion under 12b6.
Mitchell claims that the complaint alleges sufficient facts to support the allegation that the area of
fulton street is part of A+K premises.noting that premises does not have one fixed and precise
meaning
Ct says where pleadings raise a contested issue of material fact, 12b6 must be denied.
o Ct is only required to accept only well pleaded facts as true
o DC properly relied on 12b6.
o Ps argument that a jury could find that street area was part of A=K premises sets forth a new
theory of liability. (not part of complaint)

2. Procedural Irregularity Could of amendment but chose to stand on their original complaint. Argument is
available to you now
When order dismissing the complaint was entered the Ps would have an absolute righ t file an
amended complaint embodying the claimed theory that the public street was part of ds premises
BUT by appealing, the P;s elected to stand on their original complaint and relinquished the legal theory
they now assert.
Surrounding streets and sidewalks are beyond meaning of premises.

3. Duty to Protect Against Criminal Acts of 3rd Persons on Public Streets

Ct is applying IL law.back to Eerie discussion. SC has changed this so that AC now review de novo
dont give any deference to what state law is.
In Neering Owner of land owes a duty to invitees on his premises reasonably to guard against
criminal acts of third parties when he has knowledge of them
Ct had to determine if A+K had a duty under the circumstances in the complaint .
2nd RST of torts: Mitchell was an invitee but there was no duty because he was not on the land.
Precluded liability to members of the public while they are on the land.
Dissent (Fairchild) :

1. Doesnt disagree that no duty is owed to P on public streets

2. When D ordered him to remain in his truck and park it on a street which knew or should have known that P
would be in danger of criminal acthad affirmative conduct.
3. Affirmative conduct greatly increased the risk of harm to the P and created a duty on the D to warn P of danger
or direct P to a place of safety until the delivery could be mage.
a. Affirmative conduct creates a duty to exercise reasonable care is recognized by 2 RST of torts

Notes and Questions

1. Sometimes lawyers include a lot of detail even though they know they risk dismissal.
a. Jackson v. Marion CountyIf Ps lawyers want to live dangerously or want to find out sooner rather than later
whether they have a claim they cant.
i. Discovery is often expensive and sometimes have an early ruling on whether their legal theory will satisfy
the judge can save money.

Could the p have legitimately avoiding dismissal by pleading that he was on the premises. Would that have been proper or
violated rule 11. What advantage would have been to obtained by masking the facts and pleading that he was on the
premises9b cases Hopefully into bell Atlantic.
13
4. Heightened Requirements for Specificity
8a2: general pleading requirements, some instances require greater specificity
9b: in alleging fraud or mistake a party must state with particularity the circumstances constituting fraud AND malice,
intent, knowledge, and other conditions of a persons mind.
Ross v. AH Robins: Ps made a securities fraud claim asserting that D Robins co and several of its officers failed to disclose
the risk to the co marketing the Dalkon Shield (a contraceptive) which was found to be harmful to may users putting the co
at risk of massive tort liability.
o P who bought stock saw their value decline
o Ct found: p adequately identified the alleged misrep. It found their allegations that D knew the true facts
insufficient. Cannot expect P at this state to plead ds actual knowledge but can require them to supply a factual
basis for their conclusory allegations regarding that knowledge. (failed on intent part of it)
o 9b: 1) assures the d of fair notice of what p claim is and the ground on which it rests 2) desire to protect d from the
harm that comes to their reputations or good will when they are charged with serious wrongdoing.

Case: Tellabs, Inc v. Makor Issues & Rights (2007)--SC of the United States
Facts:
1. Private Securities Litigation Reform Act of 1995: act requires that P state 1) facts constituting the alleged violation
and 2) facts evidencing scienter (ds intention to deceive, manipulate, or defraud).
a. S 21D b2: p must state with particularity the facts giving rise to a strong inference that the D acted with
the required state of mind.
b. Congress left strong inference undefined and up to the courts
i. 7th Circuit Standardstrong inference standard met if complaint alleged facts from which a
reasonable person could infer that the D acted with the required intent.

2. Tellabs manf equipment used in fiber optics networks.

a. Shareholders who purchased stock between 2000-1 accuse Tellabs and Notebaert CEO/president of
engaging in a scheme to deceive the investing public about true value of their stocks.
b. Notebaret misled the public in four ways.
i. Statements indicating that demand for Titan 5500 was continuing to grow when it was not
ii. Statements indication that Titan 6500 (next generation device) was available for delivery and
demand for that product was strong and growing when it was not ready for delivery and
demand was weak.
iii. Falsely represented Tellabs financial results for the 4th quarter of 2000 and condoned channel
stuffing.
iv. Made a series of overstated revenue projections when demand for Titan 5500 was drying up and
production of titan 6500 was behind schedule.
3. Price of stock fell from S67 to $15.87.
a. Engaged in security fraud in violation of S 10b of Securities Exchange Act of 1934, S 78 jb and SEC rule
10b5that Notebaert was a controlling person under S 20 a and was liable for co fraudlent acts
PP:
1. DC Shareholders amended complaint added specific allegations concerning Ns mental state.this time ct
dismissed with prejudice. Insufficiently plead scienter element.
2. AC reversed in part; pleaded 1) the misleading character of N statements with suff particularity and 2)
sufficiently alleged N acted with the requisite state of mind.
a. Explicitly rejected a stiffer standard.
Issue:
1. Whether a court must consider competing inferences in determining whether a securities fraud complaint gives
rise to a strong inference of scienter? YEs
Holding/ Rationale

1. Ct looks at Section 10 b. affords a right of action to purchases or sellers of securities injured in violation.
a. P must prove d acted with scienter a mental state embracing intent to deceive, manipulate, or defraud.
14
 b. Before PSLRA the suff was governed by Rule 9b a heightened pleading standard not rule 8.

2. In this case under PSLRA instructions p did not state with particularity facts giving rise to a strong inference
that d acted with required mind

III.
A. Principles
Rule 12b6 motion to dismiss a 10b actioncts must dismiss for failure to plead a claim on which relief can be
granted
Cts must consider the complaint in its entirety as well as other sources court ordinary examine when ruling on
12b6 motions (documents incorp in the complaint)
Determine whether pleaded facts give rise to a strong inference of the scientercts must take into account
plausible opposing inferences.
o Congress required p to plead with particularity facts that give rise to strong a powerful or cognent
inference.
o Inherently comparativeconsider plausible nonculpable explanations for d conduct as well as inferences
favoring p.
o Standard: complaint will survive only if a reasonable person would deem the inference of scienter
cognent and at least as compelling as any opposing inference one could draw.
B. In this case
T says that the shareholders did not allege that N sold any shares during the class periodmotive can be a relevant
consideration (personal financial gain may weigh heavily in favor of a sceitner inference). Absence of motive is not
fatal.
T says shareholders allegations are too vague or ambiguous ie. Alleged channel stuffing. T argues failed to
specify whether it was the illegitimate kind writing orders for products customers have not requested or the
legitimate kind offering customers discounts as incentives to buy.

1. Assessment of plausible inferences while constantly assuming the Ps allegations to true, we think it plain
does not impinge upon 7th amendment right to jury trial.
2. P not forced to plead more than she would be required to prove at trial. At trial must prove her case by a
preponderance of the evidence
Vacate judgment to be re-examined.
Scalia (concur):
1. Cant see how An inference that is merely at least as compelling as any opposing can be a strong inference.
2. Test should be whether the inference of scienter is more plausible than the opposing inference of innocence
3. It is up to Congress to determined the appropriate pleading standard and Cts job to give meaning to the standard
devised by congress
4. Here, Strong inferencemust be given tis ordinary meaning. Not meant to relax ordinary rule.
Alito (concur)
1. Only those facts that are alleged with particularity may properly be considered in determining whether the
allegations of scienter are sufficient.
2. Cts interpretation of particularity req does not distinguish it from the normal pleading review
3. Endorses Scalias interpretation bceause aligns with pleading test under PSLRA with the test used at summary
judgment and judgment as a matter of law states.

Stevens (dissent)
1. Diff interpretation would be both easier to apply and more consistent with the statute.

Notes and Questions

1. On remand 7th circuit ruled that the allegations satisfied the PSLRA requirements. Looked at the likelihood that the
allegedly false statements they quoted were the result of careless mistakes at the management level based on false
information fed to from below, rather than an intent to deceive or a reckless indifference to whether statements were
misleading. Some members of the companies senior management must have known that the statements were false.

15
2. Alito argues for standard for scrutinizing the adequacy of Ps factual allegations should mirror standard cts use whether
to grant sj or to grant j as matter of law at trial.
a. Dont require that judge be persuaded by ps evidence rather a reasonable jury.
b. Mizzaro v. Home Depotasks what a reasonable person would think not what a reasonable person could think.
c. Discovery and and other proceedings shall be stayed during pendency of any motion to dismiss unless ct finds
upon the motion of any party that a particularized discovery in necessary to preserve evidence or to prevent
undue prejudice to that party.
i. SG Cowen Securities v. US DIst DC may not permit discovery that will enable Ps to uncover facts
sufficient to satisfy acts pleading requirement.
ii. Medhekar v. US Dist Ct discovery stay applies to initial disclosure under 26a1 as well as to formal
discovery.
iii. In re WorldCom Securities Litigation p could obtain copies of documents previously provided to public
agencies in related proceedings.
iv. De la fuente v. DCI ps could have discovery to respond to ds motion to dismiss.
3. Rule 9b
a. Notice: fraud cases may involve more complicated transactions and numerous parties so that more detail could be
important
b. Injury to Reputation: other peoples reputations face harsh resonses like in SPRL v. imrex case
c. Limiting in terrorem value of suit
i. Blue Chips Stamps v. Manor Drug Storesthe court dealing with an unrelated issue warned that in this
type of litigation the mere existence of an unresolved lawsuit has settlement value to the Pwhich may
accompany a groundless lawsuit
ii. Ackerman v. Northwestern Mutual Life Insurance charges of fraud and also mistake, the other charge
that Rule 9 b requires to plead with particularly frequently asks ct to rewrite the parties k or otherwise
disrupt established relationships.
d. Factors look at: risk aversion among ds when cases threatened substantial portion of co assets or personal ruin,
availability of insurance to fund settlements, unwillingness of lawyers to risk a trial, impossibility of obtaining a
judicial decision before trial.

4. Cash Energy Inc v. Weiner a toxic cleanup case in which p asserted claims under CERCLA against not only corps alleged
to have dumped the toxic materials that contaminated ps property but the officers of those companies as well.
Individuals ds moved to dismiss because they were bald assertions. Ct required specific pleading for the claim against the
individual ds.
a. Patent Infringement Cases: in which Ds raise the affirmative defense of inequitable conduct by P in obtaining the
patent.
i. Exergen Corp v. Walmart Storesrule 9b applies to that defense so that D must provide a particularized
basis must identify the specific who what when where how of the material misrepresentations to the
Patent office and must include sufficient allegations of underlying facts from which a ct may reasonably
infer that a specific individual 1) knew of the withheld materials information or of the falsity of the
material representation and 2) withheld or misrepresented the information with a specific intent to
deceive the PTO.
ii. Pirelli Armstrong Tire Corp v. Walgreen P sued walgreens to recoup amounts it had reimbursed the
pharmacy for purchase by its retirees of 2 commonly prescribed drugs claiming that W had disregarded
drs prescriptions for inexpensive generics and substituted more expensive drugs. D argued that Rule 9b
applied, ct agreed. Complaint alleges that W unlawfully and intentionally concealed from P or
misrepresented to it the form of the drug that was prescribed and that P suffered damages as a result.
iii. Pelman v. MCDonalds CorpCt reversed dismissal of a suit claiming that MCD had NYCPA by creating a
false impression that its food products were part of a health diet if consumed daily resulting in obesity
and other health problems for ps . Ct said: NY law extends beyond CL fraud to cover a broad range of
deceptive practices the claim was not subjected to rule 9b but only the requirements of Rule 8a

5. How much should rule 9b require?

a. McQueen v. Woodstream Corp the ct held that the rule was satisfied noting that Rule 9b is a net designed to
catch intrinsically faulty claims not a trap to ensure claims that lack rigor of detail.
b. Mattrix Initiatives Inc v. Siracusano Ct offered some insights about the application of the PSLRA standard while
16
 unanimously affirming a decision that a complaint was sufficient to allege securities fraud. Ps claimed that D had
not disclosed that it had received adverse incident reports indicating that its zinc based cold remedy Zicam was
linked to the loss of smell. Court noted that this one product accounted for 70% of the ds sales. D should have
disclosed plausible under the PSLRA standard.
6. Ct repeatedly emphasized the need for private suits to enforce security laws
7. Mitchell v. WT grantct upheld the constitutionality of a LA procedure permitting attachment without prior notice and a
right of D to be heard because it required pleading of specific facts than conclusory allegations.
8. Rule 11 doesnt satisfyCongress indicated that it was not satisfied with the reassurance and also sought to undo some of
the changes of Rule 1 effected by 93 amendments to the rule.
9. 7th amendment Right to jury Trialdoes not affect interpretation of pleading requirements of the PSLRA so long as p is not
forced to plead more than she would be required to prove at trial.

5. The Current Application of Rule 8(a)(2) Pleading Requirements

Case: Swierkiewicz v. Sorema (2002)SC of the US

Facts:
1. P (Swierkiewicz) is a native of Hungary and 53 years old when filed his complaint.
a. Initially employed for D as a senior vp and chief underwriting officer.
b. 6 years later Chavel CEO demoted P to a marketing and services position and transferred the bulk of his
underwriting responsibilities to Papadopoulolike Chavel a French national. (a year later he was
appointed as CUO)
c. P argued that Papadopoulo had only 1 year of underwriting experience when he was promotedand
that he was less experienced and qualified than he was.
i. After demotion was isolated by Chavel and excluded from business decisions/meeting and
denied the opportunity to reach full potential at SOREMA.

2. P sent a memo to Chavel outlining his grievance and requesting a severance package.
a. Received a response that he could 1) resign without a severance packager or be dismissed.
b. Chavel fired him after he refused to resign.

3. P filed lawsuit alleging that he had been terminated on account of his national origin in violation of Title 7 of the
Civil rights act and on account of his age in violation of the Age Discrimination in Employment Act.
PP:
1. US DC for SD of NY: dismissed complaint because it found that he had not adequately alleged a prima facie case --
-not alleged circumstances that that support inference of discrimination.
2. US CT Appeals 2nd Circuit: affirmed requires p to allege facts constitution a prima facie case of discrimination
(framework set by McDonnell Case). Failed to meet burdenallegations were insufficient.
a. Required in complaint to 1) membership in a protected group 2) qualification for job in question 3) an
adverse employment action and 4) circumstance that support and inference of discrimination.
Issue:
1. Whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima
facie case of discrimination under Mcdonnel douglas corp v. green framework? No
Holding/ Rationale
1. Ct holds the requirements of McDonnel case to be a evidentiary standard not a pleading requirement.
Issue in that case concerned allocation of proof.
Ordinary rules for assessing the complaint apply
MD framework does not apply in every employment discrimination case. if P is able to produce direct
evidence of discrimination he may prevail without proving all elements of prima facie case. Under MD
standard would require to plead prima facie case pleading more facts than he may ultimately need.

2. Precise Req of prima facie case can vary depending on context and were never intended to be rigid, mechanized
or ritualistic.
Operates as an evidentiary standard and should not be transposed into a rigid pleading standard for
17
 discrimination cases.
Conflicts with CIV PRO RULE 8a2provides that complaint must include only a short and plain statement
of the claim showing that the pleader is entitled to relief.
Rule 9b which has a more stringent pleading requirements does ot refer to employment discrimination
so P must only satisfy requirements of rule 8a.
3. Rule 8a
Rule 8d1: no technical forms of pleading or motions are required.
Rule 8f: all pleadings shall be construed as to do substantial justice.
Court may dismiss only if it is clear that no relief could be granted under any set of facts that could be
proved consistent with the allegations.
4. In this case
Complaint satisfies rule of 8a.
P alleged that he had been terminated on account of his national origin in violation of title 7 and on
account of his age in violation of the ADEA.
Included grounds for relief
D argued that it will burden the courts and encourage disgruntled employees to bring unsubstantial
suit ct here says that a requirement of greater specificity for claims obtaining by a process of amending
the federal rules not by judicial interpretation

Employment discrimination P does not need to plead a prima facie case of discrimination and Ps complaint is sufficient
to survive respondents motion.

Notes and Questions

1. Leatherman v. Tarrant County Narcotics and Coordination Unit: P sued under 42 USCA S 1983 claiming that local law
enforcement officers had violated their constitutional rights. Because they were suing a county and 2 municipal
corporations that employed the officersthey were required to prove that the incidents resulted from official policy
custom, or practice. 5th ct upheld dismissal under its heightened pleading standard; SC held that dismissal was wrong
because the rules provided not ground for the heightened pleading requirement. Rule 9b did not apply to this case.
2. Crawford-el v. Britton ct emphasized that the DC must exercise its discretion so that officials are not subjected to
burdensome discovery or trial proceedings. 1) order a relpy under 7a or 2) grants d motion for a more definite statement
under Rule 12 e.
a. Associated General Contractors v. CA State Council of Carpenterscertainly in a case of this magnitude, a dc must
retain the power to insist upon some specificity in pleading before allowing a potentially massive factual
controversy to proceed.
b. Dura Pharmaceuticals v. Broudo a securities fraud action not subject to the PSLRA, the court embraced a more
demanding attitude toward pleading requirements for the purpose of notice. Ps claimed that when they brought
ds stock its value was inflated due to misrepresentations about the companies financial condition and prospect.

Case: Bell Atlantic v. Twombly (2007)SC of the US

Facts:
1. P sued on behalf of a proposed class consisting of all subscribers of local telephone service 1996-2007 seeking
treble damages, declaratory and injunctive relief. Babybells, SBC< Verizon
a. D had conspired to restrain trade
i. 1) Each engaged in parallel conduct in its respective service area to inhibit the growth of
competing CLECs adopting practices designed to sabotage competition
ii. 2) LECS had agreed not to compete with each other in providing local telephone service in
another ILEC service area. Failure not to pursue their substantial competitive advantages in
certain adjacent areas even those made attractive business opportunities.
iii. Statement from Notebaert CEO of Quest quoted saying that competing in the territory might
be another good way to turn a quick dollar but that doesnt make it right.
PP:
1. DC dismissed: for failure to state a claim reasoning // conduct alone could not be a basis for alleging an anti-trust

18
 conspiracy so that the complaint must contain additional facts that tend to exclude independent self-interested
conduct as an explanation of // behavior.
2. Ct of Appeals: reversed holding that plus factors are not required so long as P plead facts that include conspiracy
among realm of plausible possibilities.
3. SC: where case is now
Issue:
1. Whether a Section 1 complaint can survive a motion to dismiss when it alleges that major telecommunications
providers engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting
agreement, as distinct from identical independent action? No
Holding/ Rationale
1. Sherman Act: does not prohibit all unreasonable restraints of trade but only restraints effected by a contract
combination or conspiracy.
Whether the conduct stemmed from independent decision or from agreement, tacit, or express.
// business behavior falls short of conclusively establishing agreement or itself constituting a Sherman Act
offense.
Factual allegations must be enough to raise a right to relief above the speculative level.
Need enough factual mater to suggest that an agreement was made.
Allegation of // conduct and bare assertion of conspiracy will not suffice.

2. Proceeding to anti-trust discovery can be expensive

Take care to require allegations that reach the level suggesting conspiracy that we can hope to avoid
enormous expense of discovery in cases with no reasonably founded home that process will reveal
relevant evidence.
Ps rely on Gibson said that should not be dismissed for failure to state a claim unless it appears
beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief.
o Under this a wholly conclusory statement of claim would survive
o Dont need a literal reading of terms in Conleymust provide grounds on which his claim rests.

3. In this case claim of conspiracy comes up short

Complaint leave no doubt that p rest their claim on description of //conduct not on any independent
allegation of actual agreement among the ILECs.
Have few statements speak directly of agreement: merely legal conclusions.
1) Absence of meaningful competitionto exclude competition in its area involved doing what was only
natural anyway and provided no basis for inferring agreement among them to behave in that manner.
They knew that if they tried to compete in the area of another ILEC they faced insurmountable barriers to
profitability.
Sweierkiewcz casereversed Ct apps decision because what amounted to a heightened pleaded req by
insisting S allege specific facts beyond those necessary to state his claim and he had grounds showing
entitlement to relief
Heredont require a heightened fact pleading of specifics but only enough facts to state a claim to relief
that is plausible on its face.

Complaint fails to state valid claim for which relief can be granted.
Dissent (STEVENS)
With NOtebaerts statement should have been construed in Ps favor not proper for DC to review and interpret
article
Abandoning Gibson was going to rewrite the nations civil procedure textbooks by a judicial decision.
Should be careful case management and strict control of discovery but not the dismissal of an adequately pleaded
complaint without even required the d to file answers denying a charge

Tellabs: 9b v. Twombly
Twombly: how expensive judicial trust can be. (maybe impose more under the limited pleading) in requiring that the complaint be
plausible.

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Lower courts and commentators debated how broadly this test should apply. Effects of alleged discriminationless here offered by
plaintiff. Said that Muslim arabs are getting thrown in.

Case: Ashcroft v. Iqbal (2009)SC of the US

Facts:
1. Iqbal a citizen of Pakistan and a Muslim was arrested in the wake of Sept 11. Terrorist attacks on criminal charges
and detained by federal officers. (arrested on immigration charges)
2. He filed a complaint against federal officials (Ashcroft former Attorney Gen, Mueller Director of FBI)
a. That he was deprived of various constitutional protections while confined on account of his race,
religion, or national origin. (A+M abused him while he was in custody)
b. A+M knew of, condoned, and willfylly and maliciously agreed subjecting him to harsh conditions of
confinement soley on grounds of his religion, race or national origion.
c. He didnt provide account of his prison ordeal on complaint
PP:
1. DC: denies ds motion to dismiss even though had broad immunity to suit..A and M move to dismiss the
complaint as facially insufficient and raised defense of qualified immunity based on their official status DC
denied motion and A+M took an interlocutory appeal to the 2 nd ct of of Appeals.
2. Ct of Appeals: Affirms
3. US SC: where the case is now ; reverse and remands
Issue:
1. Did Iqbal in the DC plead factual matter that if as true states a claim that petitioners deprived him of his
constitutional right? Ct holds pleadings are insufficient.
Holding/ Rationale
1. Because vicarious liability is inapplicable p had to plead that each gvt D violated constitutional rights.
Purposeful discrimination required . Iqba had to plead facts sufficient to show that detention policy at issue for
the purpose of discriminating.
2. I must prove and plead that each d acted with a discriminatory purpose.
3. Iqbals complaint alleges that officers had a policy of detain muslims after the 9/11 attacks.
Claimed that Ashcroft was the architect of policy and Muller was instrumental in its adoption,
promulgation, and implementation remaining factual allegations were bare assertions.

4. To survive a motion to dismiss in Twombly, a complaint must contain suff factual matter, accepted as true to
state a claim of relief that is plausible on its face..
Requires more than conclusions of misconduct
principles 1) that a court accepts factual allegations on the complaint are true but doesnt have to
accept the legal conclusions. Rule 8: does not permit mere conclusions. 2) a complaint that states a
plausible claim for relief survives a motion to dismiss. Mere conclusions are not assumed to true.

5. In this Case, Iqbal only states conclusions bare assertions that A was principal architect and M was
implementer. Claim was conceivable but not plausible.
Fails to include factual allegations that support his conclusion
It was reasonably for I to be held for other reasons than race, religion, or national origin.
Attack was perpetrated by 19 Muslim hijackers so it should com as no surprise that a legislate policy
directing law enforcement to arrest and detail individuals because of their suspected link to the acts
would produce an incidental impact on Arab Muslims.
Discrimination was not a plausible conclusion given alternate explanation that the detention were
focused on people illegal present in country that has connections to terrorists. It is not because they are
unrealisticyou have to ask what do you need to plead not to be making. Complaint didnt contain on th
ground specifics.
Why does the complaint have to be so specifichow do you know these things without discovery.
Does this go to farYes far from the normal notice pleading.

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 6. I argues that
1) Twombly be limited to antitrust pleadingct rejects that. Decision was based on the application of
Rule 8 governs the pleading standard in all civil actions and proceedings in US DC.
Twombly is the pleading standard for all civil actions
2) 9b permits him general rather than specific pleading for an alleged constitutional violation;
Particularity requirement applicable to fraud or mistake.
o Ct says that 9b does not override the pleading requirments of Rule 8 just requires great
specificity for certain types of claims
Reverses and Remands
Dissent (Souter): author of twombly said this is not like twomblyits not just naked conlusions. Thought that p did state
a claim that was. Also disagreed with the holding of substantive law for the acts of their subordinates.
1. Majority is eliminating supervisory liability entirely
2. Complaint Satisfies Rule 8 a 2 A +M admit they are liable for their subordinates conduct if they had actual
knowledge of the discriminatory nature
3. complaint alleges at a bare min that A=M knew of and condoned discriminatory policy and acted to created
discriminatory detention policy.
4. Take the complaint as a whole with the background aftermath of 9/11.
5. Facts on complaint should be taken as true unless they are sufficiently fantastic to defy reality.
6. Key allegations here were not conclusory and facts of the complaint were sufficient.
Dissent (Breyer)
1. Agreed with the goal of preventing unwarranted litigation from interfering with the work of the government but
believed that the DC can structure discovery in ways that diminish the risk of imposing unwarranted burdens of
public officials.

Ct rejected argument that Twombly would be limited to anti-trust actions. Even though conditions of mind are commited to be
alleged generally. Cts dont have to credit complaints conclusory statement of discriminatory intent.

SChwerowitz: alleging discrimination on basis of age did not have to allege the elements..enough without factual support.
Sends it back to the second circuit to decide it should be remanded.
People concerned that it reflected bad policy. Rule enabling act process or congress not the SC should be making these decisions
not the court.

Whether some of the forms

T + I: makes it important what gets written out as mere conclusions. Fa
Notes and Questions
1. A lot of debate and discussion about a new pleading standard after these two cases:

Teachers Update

Case: Nielson v. Rabin (2002)SC of the US

Facts:
1. P was arrested by NYPD officers in an altercation which he alleges caused a broken collar bone. Officers took
him to the ER where dr rated his pain at 2 on scale 1-10
2. Acting pro se, he sued the officer and dr. alleging that she had been deliberately indifferent to his medical
needsthat officer told dr that he had attacked a female officer and that he should be left alone.
PP:
1. DC: granted motion to dismiss on the ground that the complaint did not adequately allege that dr had a culpable
state of mind, and declined to allow P to amend his complaint to add what he put in the opposition to the
motion.
2. AC: reversed, pro se Ps in particular should be granted a leave to amend.
Issue:

Holding/ Rationale
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 1. Allegations supported the conclusion that the doctor was influenced to give P minimal care by what the officer
told her and that the DC reliance on medical records proffered by the defense improperly resolved factual issues
against the P.
2. Complaint plausible enough to satisfy Twombly
Dissent:
1. Implausible that dr would neglect a patient at request of police officer. Medical file attached shows that p did
not report conditions indicative of serious medical injury, that p was examined by multiple medical professionals,
that some treatment was administered
2. 2 Drs violated their oaths and that a nurse falsely reported P was in a low level of pain at the time of the
discharge all at the behest of a police officer was an implausible claim.

C. Defendants Response
1. Pre Answer Motions Under Rule 12
Rule 12b6: failure to state a claim upon which relief can be granted
Rule 12c: motion for judgment on the pleadings
Rule 12 e: motion for a more definite statement
Rule 12f: motion to strike portions of the pleading redundant, immaterial, impertinent or scandalous matter
Defenses of Rule 12 (b) 1-5;7 =procedural 6=legal sufficiency of allegations.
o 12b1: court is not empowered to exercise subject matter of the suit
o 12b2: court lacks pj over d
o 12b3: particular court is not the proper location or venue for the suit
o 12b4/5: circumstances or method for serving were incorrect
o 12b6: failure to state a claim upon which relief can be granted.
o 12b 7: suit should go forward with a required party

Substantive Sufficiency (12b6, 12c, 12 ) | Form (12e, 12f strike scandalous matter) | Matters in abatement (12b1-5+7)
Answer rather than Pre-Answer: Certain omissions you can cure for an amended
P want answer want resolve at outset? If there a certainty that hes not going to win then might want to get the legal issue early.
D tactics the lead d from refraining to do doing so If D moves to dimissbut court will grant leave to cure defect at trial it will be
proob in supportif D does not make motion. It might think that all it needs to provewould fail and D would get judgment with res
judicata.
12h2: allows you to make it in any pleading.you have not waived that pointvehicles you can use for raising it is limited.

IF you dont know of a defense and it is availableignorance is not excuse.

No waiver until time has expired and you failed to include by amendment under 151

P (IL)) v. D Indiana (pre answer under 12b7) + d2 ( citizen of ohio) DC of Indiana. IF all ds are residents are the states they are
located. 1) claim occurred or ALL Ds reside if they all reside in the same state..had to be available from first motionit was not
available so it is permitted. Know district of Indiana is a bad venueneither where the cause of action arose or the state where
they reside. If he had such objection he would have had it at the time of filing.

b) 4 weeks in 28 days more than 21 days. Under 12 h2 defense is preserved failure to state a claimcan raise.
PJ VENUE Improper Service process you have to raise or it is raised.

IF D files a pre-answer within 21 period following service, the deadline for filing an answer is extended (Rule 12a4)
o IF court denies motion or postpones its disposition, d has 14 days after notice of the court action to file an answer
o If court grants motion, p will usually be granted leave to amend, which starts process over again OR the suit will be
dismissed. IF more definite statement is granted d has until 14 days after the amendment complaint to file its
answer.

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 Rules 12g +hset out consolidation and waiver provision concerning the Rule 12 motions.
o Prevent the pleader form using multiple pre-answer motion for different defenses and omitting certain defenses
from motions/answers.
o 12g: if a party makes a pre answer motion but omits one of the Rule 12 defenses then availableit cannot make
any further pre-answer motion.
o 12h1: 4 disfavored defenses (lack of jx, improper venue, insufficiency of process, or insuff of service) will be
waived forever if omitted from a pre-answer motion or if no motion is made from answer
o 12 h2: 3 favored defensesfailure to state a claim upon which relief can be granted, failure to join and
indispensible party, and failure to state a legal defense to a claim.
o 12h3: Most favored defenselack of jx of the subject matter can be made at any time.

2. Failure to AnswerDefault
Rules impose on d a burden to respond rule 12---21 days after being served to file and answer. A4 if you
serve a motion under this rule in alters time to answer.
Pre-answer motion are protected from default initially if you file a motion if fail to do anything then enter
default judgment.
Case: Shepard Claim Service Inc v. William Darrah & Associates (1986)US CT of
Appeals
Facts:
1. Shepard filed k action in DC against Darrah with jx based on diversity of citizenship .
2. Complaint alleged that Darrah (SC based insurance broke) failed to pay them (a MI independent claims adjuster)
for services rendered.
3. Service carried out on Feb 7,1985.
a. On Feb 22, D attorney secured by telephone an extension of time for filing an answer. A confirmation
letter from defense counsel, drafted and signed by secretary stated that you have granted by office 45
days from Feb 22 to answer the complaint.
b. By April 10, D had filed no answer so Shepard request clerk to enter a default judgment for D.
c. April 19, D filed a notice of retention, following on April 26 with an answer , April 29 notice of defenses a
counterclaim, a request for production of documents.
d. On May 1, d filed response to motion for default judgment and a motion to set aside entry of default
pursuant to Rule 55c.
e. D believed that their understanding of the extension to rule 45 days in addition to the normal period of 30
days under Rule 4e. Under their interpretation answer would have been due on April 23. Confirming
letter contained a mis-statement of what she believed to be the arrangement and what she informed her
employer.
4. D argues that he did not learn of the April 10 entry of default until April 29 by the opposing counsel.
PP:
1. DC: held hearing on pending motion on May 28. Denied d motion to set aside entry of default found ds attorney
engaged in culpable conduct when he permitted his secretary to make arrangements for the extension and then
failed to review the letter upon returning from vacation.
Issue:

Holding/ Rationale
1. Looked at United Coin Meter Co v. Seaboard Coastline Casecircumstances similar to this case. Opposing counsel
agreed to a 20 day period for the d to file an answer. P construed the agreement as running from April 28, while d
believed time ran from May 5. DC found no excusable neglect on ds part but this court reversed dc finding that
criteria that controlled the courts decision on a Rule 55c motion that had not been satisfied.
Factors: 1) Whether P would be prejudiced 2) Whether D has a meritorious defense 3) Whether culpable
conduct of the D led to the default
3rd factor was not met in united because the d conduct had not been willful

2. This case differs from United: in united a default judgment was entered where this interlocutory appeal was taken
before entry of judgment.
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 3. Rule 55c: leaves to the discretion of the trial judge the decision whether to set aside an entry of default. A strong
preference for trial on the merits in fed cts have led to aoption of a modified standard of review where defaults are
involved.
Distinction between 2 standard in Jackson v. Beech A default j can be set aside under Rule 55cfor
good cause shown but a default that has become final as a judgment can be set aside only under stricter
60b
4. In this case: 1) P suffered no prejudice by tardy pleadings 2) d presented a meritorious defense in its answer 3) Ds
counsel was careless an inexcusablet is not necessary that the conduct be excusable to qualify for relief under the
good cause standard of Rule 55c.
To be culpable the conduct of the d must display either an intent to thwart judicial proceeding or a
reckless disregard for the effect of its conduct on those proceedings.
Delay was not lengthy and there was no pattern of disregard for court orders or rules.
Strong policy of deciding cases on their merits outweighs any convenience to the court or Shepard
resulting form the relatively short delay in answering.
Would deprive client of his day and court and should not be used as a vehicle for disciplining attorneys.

5. DC can stil assess or determine some penalty for d or his counsel for delay.

Reversed.

Notes and Questions

1. Rule 55b1: one exception where clerk rather than judge may enter default judgment. It provides that if a D has been
defaulted for failure to appear and isnt a minor or incompetent the clerk, upon Ps request and filing an affidavit as to the
amount due, must enter judgment if the claim is for a sum certain or a sum that can be made by computation. D must have
completely failed to appear and not merely have defaulted after an initial appearance.

2. Entry of default would be routine unless d has filed an answer, clerk may enter default when the time to answer expires. D
entitled to notice of further hearings only if it has entered an appearance

3. Determining what should be treated as an answer

a. Wheat v. Eakin pro se d responded to the complaint with a handwritten document addressed to clerknot only
do I deny all the allegations in the above style suitp is full of bull shit. AC held that it was an error to enter
default , he did state in short plain terms his general denial of appellees claims.
b. Interscope Records v. Benavides pro se ds letter to the court denying ps charges did not constitute an
appearance because it was not sent to ps counsel.

4. Once default is entered, what impact should that action have on the courts evaluation of the merits of the case?
a. Court may refuse to grant a judgment for p if the complaint fails to state a claim for relief.
b. Ct may insist that p make some showing of factual support for his allegations.

5. Where P seeks equitable relief rather than money damages

a. US v. Di Mucci: d were charged with discriminating against black applicants for apartments in their apartment
complexes in violation of the Fair Housing Act.
i. Default was entered for failure to comply with discovery, gvt requested an injunction directing them to
undertake a variety of curative measures.
ii. On appeal d argued that government had to prove a continuing pattern and practice of discrimination
to support an injunction noting that ordinarily no showing of violation need be made at the remedy
stage. Upheld the injunction entry of default judgment established that D violated the Fair Housing Act.
iii. Di muccis liability was established by default, the law in this circuit indicates that that in a case such as
this an evidentiary hearing may be required to establish what type of relief is necessary.

6. In order to have properly entered default set aside d must make a motion and show a meritorious defense
a. Some that defense is good at law and not that it is likely to succeed.
b. Want more than conclusory statements about defenses in support of motions to set aside defaults, insisting
instead on some factual showing of a basis for defense.
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 c. Peralta v. Heights Medical Center Inc court held that where d has not been served, the resulting default must be
set aside even though d cannot cite a good defense.
7. P must show some prejudice to preserve the default
8. D fails to participate in lawsuit after filing answer may find that his answer is stricken and default entered.

3. The Answer
A. Admitting or Denying Averments
Rule 8b1 requires a d in the answer to admit or deny the allegations asserted against its by an opposing party
o Going down each paragraph in the complaint and stating that it is either admitted or denied. (should be avoided
because sentence can contained # of allegations.

CL was permissible to make a general denial limited circumstances under Rule 8b3
Rule 8b5: if d lacks the knowledge or information sufficient to form a belief as to the truth of an allegation it may so state in
its answer which has the effect of a denial

Case: David v. Crompton & Knowles Corp (1973)USDC Eastern District of Penn
Facts:
1. Products liability action involving a serious personal injury.
2. Crompton seek to amend its answer to P 5 of the complaint which alleges that Crompton designed, manf, and sold a
shredding machine to Craw (ps employer).
3. Crompton averred that it was without sufficient knowledge or information to admit or deny the allegation and demanded
proof.
4. Crompton now seeks to deny that it designed manufacture and sold the machine in question.
a. Machine was designed, manufactured and sold by James hunter corp prior to its purchase of hunter and that it did
not assume liability for their negligent design manf or sale of machines by hunter prior to its purchase of hunters
assets.
PP:

Issue:

Holding/ Rationale
1. An answer to an averment in a complaint which states that the party lacks sufficient info or knowledge to admit or deny the
averments is permitted by FED rule 8b and has the effect of a denial.
a. A party may not deny sufficient info or knowledge with impunity but is subject to the requirements of honesty in
pleading.
b. Averment will be deemed admitted when the matter is one as to which d has knowledge or information.
2. In this case
Crompton admits knowledge of hunters role in the design, manf, and sale of the machine
Its assertion of lack of knowledge or information must have been in relation to responsibility which it assumed for
such a claim.
Terms of the agreement were within the control and knowledge of Crompton.
It is not seem to burdensome to hold Crompton to knowledge of the terms of its purchase agreement and their
effect on tis rights and liabilities more than 9 years after sale of hunter was completed.

Notes and Questions

1. Rules governing denials is the effect of an admission
a. When d admits an allegation of the complaint , the allegation is taken as true for purpose of litigation when or not
it is in fact accurate Rule 8b6.

2. What should d do if not abs certain as to the truth of a fact alleged in the complaint.
a. Pleading lack of knowledge can be taken as an admission when the matter is one as to which d has knowledge or
information.
b. Rule 11 b4 expresses legitimate grounds for denial.
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 c. Zielinski v. Philadelphia Piers p sued PPI for personal injuries he alleged he sustained in an accident on Pier 96 in
Philadelphia. In P 5 com complaint, P alleges that on the date of accident a forklift operated by d was carelessly
managed that it came into contact with him causing him harm. D denies averments of P 5. PPI had once operated
the pier involved had transferred operation to Carload carries before date of Ps injuries. Fact did not surface until
it was too late for p to substitute CCI as d because the SOL had run.
i. Ct held that PPI would be estopped to deny that it had operated pier 96 of date of ps accident. PPI
discovery responses which failed to alert P to the problem, PPI had failed to comply with rule 8Bs
direction at the time that when a pleader intends in good faith to deny only a party or qualification of an
averment p shall specity so much of it as is true and material and shall deny only the remainder.
ii. Specific denial of parts by PPI would have warned the P.

3. Should Ds obligation to admit parts of the P of complaint pursuant to Rule 8b be relaxed where the complaint itself is
ambiguously or confusingly drafted?
a. Existence of poorly draw complaint gives the d no excuse unless d has objected to complaint under rule 12.

4. Reasons why P may incline toward vague allegations: to get relief??

a. Willinger .v Mercy Catholic Medical Center P healthy five year old son checked into hospital for tonsillectomy
and died shortly after the operation.

B. Affirmative Defense
1. Policies affecting burden allocation
a. Policy
b. Fairness
c. Probability
2. Relation to motion to dismiss under 12 b6.
3. Relation to motion for judgment on the pleadings
4. Effect of failure to plead an affirmative defense
5. Pleading standards for affirmative defense

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