Pleadings

The Complaint
Rule 8. General Rules of Pleading
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Summary + Rule(s) of Law Cases +Key Concepts

Complaint alleging only that Δ’s negligent action (driving) caused Π’s injury is Bell v. Novick
sufficient under R. 8. (Accident)

Lower court held that a Π must suffer some injury to a constitutionally protected Haddle v. Garrison
interest (under the Civil Rights Act) to state a claim for damages, and loss of at-will- (Conspiracy to terminate
employment is not “property”. an At-will-employee)

Since at-will-employee’s termination by conspiracy is an actionable claim, fact the Failure to state a claim
employment at will is not “property” under Due Process Clause does not mean its (regarding damages)
loss may not injure the petitioner in his “person or property” as require by the Act.

Claim must be plausible on its face Bell v. Twombly

Complaint must include enough facts to state a claim that is plausible on its face. (Antitrust violation by
- Conceivable is not enough, it must be plausible phone companies)

Court Opinion: 12(b)(6) – Plausibility on

- said that pleading standard was not heightened and scope of R. 9 was not the face of complaint
broadened but risk of abusive litigation in antitrust like cases require greater
particularity of alleged facts in the pleading. R. 9 – Pleading Special
- said that here facts were not insufficiently particularized, but complaint Matters [(b) – Fraud or
failed to show a plausible claim. Mistake]
- set aside the Conley v. Gibson test: No dismissal “unless it appears beyond
doubt that Π can prove no set of facts in support of his claim that would Overturned Conley
entitle him to relief.”

Iqbal Analysis: Two Prong Test Iqbal v. Ashcroft

(9/11 Investigations)
1. Disregard conclusory statements in pleading
a. When assessing the sufficiency of a complaint, the Court must distinguish Separate factual
factual contentions-which allege behavior on the part of the defendant allegations from
that, if true, would satisfy one or more elements of the claim asserted- conclusory statements
from “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.”
b. “a court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than conclusions,
Summary + Rule(s) of Law Cases +Key Concepts
are not entitled to the assumption of truth.”
c. Reasoning: Although for the purposes of a motion to dismiss the Court
must assume the veracity of the facts asserted in the complaint, it is “not
bound to accept as true a legal conclusion couched as a factual
allegation.”

2. Factual Support Must contain sufficient

a. Sufficiency of facts in pleadings factual matter.
- To survive a motion for dismissal, complaint must contain
“sufficient factual matter” Facts should be
b. Plausibility of facts plausible, not merely
- Plausibility vs. Conceivability [Twombly] conceivable.
o Plausibility is a context specific task that requires review
in the court to draw on judicial experience and common
sense.
o Look at “obvious alternative explanations” for factual
allegations, to weigh and see if the conclusion is plausible.
- Facts alleged must “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the conduct alleged.”
Implications:
- allows more early dismissals by judges.
- Some judges are now allowing very limited pre-dismissal
discovery to mitigate the effects of Iqbal.
Rule 9: Pleading Special Matters Stradford v. Zurich Ins.
Under R. 9(b), a fraud claim must disclose the time, place, and nature of alleged (Insurance fraud
misrepresentation to accused party. counterclaim against
- Purpose of 9(b) is to provide the accused fair notice of the claim and the dentist)
factual ground upon which it is based.
- Circumstances constituting fraud or mistake shall be stated with Particularity of facts in
particularity, condition of mind may be averred generally. fraud claim [R.9(b)]

Rule 8(c): Affirmative Defenses list is not exhaustive Jones v. Block

Exhaustion of administrative remedies need not be pleaded by Π in complaint, but (Prisoner suffered
rather as an affirmative defense under R. 8(c). injuries)
- R. 8(c) is a non-exhaustive list of affirmative defenses

Implications: Court said that it is the advisory committee’s job to amend the rules if
a different outcome is desired.

Answer and Pre-Answer Motions

Rule 12: Defenses and Objections
(a) Time to Serve Response
(b) Presenting Defenses
(1) Lack of subject matter jurisdiction;
(2) Lack of personal jurisdiction;
Waived if not raised in first response
(3) Improper venue;
(answer or pre-answer motion)
 (4) Insufficient process;
(5) Insufficient service of process;
(6) Failure to state a claim upon which relief can be granted; and
(7) Failure to join a party under Rule 19
(c) Motion for Judgment on Pleadings: After pleadings are closed, either party may move for this.
(d) If matters outside of pleading are presented to and not excluded by court, 12(c) and 12(b)(6)
motions should be treated as Summary Judgment motions
(e) Motion for a More Definite Statement  Make before filing responsive pleading
(f) Motion to Strike
(g) Joining Motions  any motion under this rule can be joined, cannot make another motion under
this rule that was omitted, except as in 12(h)(2)
(h) Waiving and Preserving Defenses
(1) 12(b)(2)-(5) waiver
(2) 12(b)(6) can be raised in any pleading, 12(c) motion, or at trial
(3) Court must dismiss if it determines 12(b)(1) at any time.
1. Answer:
i. Defendant denies and admits the truth of the allegations of the complaint or he may deny
the allegation until he finds out if he is not sure.
ii. Defendant may assert other matters that will wholly or partially defeat plaintiff’s claim.
These are affirmative defenses.
iii. It is common for a defendant to claim that the plaintiff was contributorily negligent which in
part caused the accident.
2. Denials:
Rule 8(b) requires the defendant to deny only those allegations that he actually disputes, and Rule
8(b) (6) provides any allegation that is not denied is deemed admitted.
i. There is nothing bad in theory about a general denial but it is rare case where the defendant
can plausibly deny all allegations. Courts condemn casual blanket denials.
ii. Zielinski v. Philadelphia Piers:
a Δ who knowingly makes inaccurate statements may be estopped from denying those
inaccurate statements at the trial.
general denials are bad because the plaintiff does not know if a whole paragraph is
denied or only one particular allegation. Plaintiff should have written shorter paragraph
with only one idea per paragraph. Defendants should not respond until they do enough
research.
3. Affirmative Defenses:
Where is the borderline between a denial and an affirmative defense.
i. By failing to include it in the answer, the defendant had waived the defense and evidence
concerning defense is inadmissible.
ii. An element’s status as part of the complaint or as an affirmative defense does not end at
the pleading stage but often ripples through the entire lawsuit. That makes it important to
know when some element of a case rests on the plaintiff or defendant to plead, whether it is
part of plaintiff’s claim or an affirmative defense.
iii. Rule 8(c): has to put them in answer so that they can discuss them in trial. If not raised now
then can’t be raised later. Burden of proof on ∆.
4. Reply:
i. Answer contains a counterclaim. A reply is required only if the answer contains a
counterclaim that is labeled as a counterclaim. If answer contains allegations that are
labeled as affirmative defenses then no reply is required.
ii. Frequently lawyers will reply to all new matter to avoid a possible inadvertent admission.
 Rule 11 Sanctions
1. Factual and legal investigation before pleading. Professional obligations. Consequences for ethical
violations.
2. Every paper must be signed.
3. Attorney certifies that no improper purpose, non-frivolous, argument, factual contentions have
evidentiary support.
4. Sanctions – fines, teaching, apology.
iii. Motions for sanctions – made separate from other motions
iv. 21 day safe harbor provision- give party 21 days to fix what you are complaining about.
v. Sanctions must be limited to what will deter future Rule 11 violations.

Rule(s) of Law Cases +Key Terms

R.11 imposes obligation on lawyer to research before filing Bridges v. Diesel
R.11 imposes obligation on counsel to stop, think, and research before filing papers (Lawyer did not conduct
either to initiate suit or to conduct litigation. legal research to find
that they needed to
exhaust admin agency
options.)

Sanctions appropriate for filing clearly defective complaint Walker v. Norwest

R.11 sanctions may be appropriate for an attorney’s filing of a clearly defective (Needed complete
complaint and taking no steps to amend or dismiss it. diversity, but did not
allege citizenship of
Violates 11(b)(2) many Δ’s and said it was
too burdensome.)

Sanctions under R.11 are limited to papers signed Christian v. Mattel

Sanctions are only for written documents not behavior during discovery. (Π’s lawyer was
presented with evidence
When facts are easy to verify then there is no excuse for not doing it. that Δ had not infringed
the doll, but still refused
to voluntarily dismiss.)

Amendments
15(a) – Amendments Before Trial: Amendments of Right (as a matter of course) and Permissive
Amendments (with leave of court)
1. Amendments of Right: 15(a)(1) A pleading may be amended once as a “matter of course” before
being served with a responsive pleading or within 20 days after serving the pleading if a responsive
pleading is not allowed.
2. Permissive Amendments: 15(a)(2) Amendments whenever else during the trial with leave of the
court or with express consent. Courts “should freely give leave when justice so requires.”
a. Reasons to deny an amendment – Burden of proving is on objecting party:
i. Amendment made in bad faith
ii. Amendment to cause undue delay
iii. Amendment will cause prejudice to the other party
 Relation Back – 15(c): Rule 15(c) deals with amendments that are interposed after the statute of
limitations on the “new” claim has run.
1. Has statute of limitations passed?
a. If no, amend if justice requires (15(a))
b. If yes, does claim arise from same “conduct, transaction, or occurrence” (CTO) set out in
complaint (15(c)(1)(B)) (To achieve goal of notice that statute of limitations addresses).
i. CTO – Moore NOT ALLOWED (Consent claim didn’t give notice of negligence claim,
might be OK if reverse); Bonerb ALLOWED (general negligence gave notice for improper
supervision)
ii. If no, NO RELATION BACK
iii. If yes, does justice require (15(a))
1. If no, NO RELATION BACK
2. If yes, claim relates back to date of original complaint
iv. Cases usually go from general claims to narrower claims. Cannot amend so that it goes
from narrower to general.
2. Relation Back When Amending Party Names
a. If claim out of same CTO(15(c)(1)(B))
b. New party received notice within timeframe of 4(m) and knew or should have known would
be a party in action
c. Only for mistakes
d. Will NOT relate back to add new party
15(b) Amendments During Trial: Variance: Variances are allowed, so long as:
1. Opposing Party Objects: 15(b)(1) Court should “freely permit” an amendment when doing so will
a. “aid in presenting the merits”
b. and the objecting party fails to give evidence that they would be prejudiced
2. Opposing Party Consents: 15(b)(2): The issue is tried by the parties’ “express or implied consent”
a. Explicit Consent: The party says “ok”
b. Implicit Consent: To determine implicit consent the court should consider (Moore v.
Moore):
i. Opposing party had adequate notice that the issue would be tried
ii. Opposing party did not object to the admittance of the evidence
iii. Opposing party had adequate opportunity to litigate and/or presented evidence on
the issue themselves
iv. The issue is sufficiently related to the issues raised int eh pleadings
Note: 15(b) also provides for “amending the pleadings to conform them to the evidence” –
housekeeping measure
Policy Implications: Tension between easy amendment and prejudice. The later the possibility of
amendment then the greater prejudice to the other party.

Rule(s) of Law Cases +Key Terms

Balance of prejudice to non-movant against injustice of not granting Beeck v. Aquaslide
Balancing between injustice of not granting amendment vs. prejudice to opposing side of (Π was alleged to have
granting been injured by a pool
1. Process Value: Finality & Notice & Efficiency vs. Flexibility manufactured by the Δ,
a. Factors for: No undue delay, bad faith, prejudice to P, Same proof, Notice, after Δ admitted
No trial date set. manufacturing in
b. Factors Against: Opportunity to raise the issue from the beginning, opposite answer, it sought leave to
 site will undergo significant planning, late in case, manipulation, will also amend to deny this fact.)
deny for asserting legally insufficient claims, delay, loss of evidence.
2. Farther along in case, less likely will be granted (More prejudice)

No relation back if allegations are distinct in time and involve separate and Moore v. Baker
distinct conduct (Π’s initial complaint
R.15(c) – A claim that does not arise out of the same conduct, transaction, or alleged doctor’s violation
occurrence as the original claim. of informed-consent, but
later wanted to add a
[Failure-to-warn claim focused on actions prior to the surgery, and negligence claim negligence claim.)
focuses on actions during and post-surgery. ]

Same nucleus of operative facts Bonerb v. Richard

When allegations in an amended complaint derive from same nucleus of operative (Π’s initially filed suit for
facts, the amended complaint relates back to the date of the original complaint. injuries received on
basketball court while
Determining Factor: Whether the facts stated in original complaint put the Δ on being treated at Δ’s
notice of the claim which Π seeks to later add. rehab in mandatory
training. Sought to
[Same conduct that caused injury constituted the malpractice.] amend and add claim for
“counseling
malpractice”.)