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Law Outlines Civil Procedure (Duke Trina Jones) Outlines

Pleadings Outline

Updated Pleadings Notes

Civil Procedure (Duke Trina Jones) Outlines

Civil Procedure (Duke Trina Jones)

Approximately 77 pages

Civil Procedure with Professor Jones...

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Pleadings

Complaint

  1. Pleading Functions

    1. Notice *

    2. State relevant facts *

    3. Narrow issues

    4. Guide for discovery

    5. Expose Insubstantial Claims

    6. Separate Factual & Legal Issues

  2. Rule 7: Types of pleadings allowed

  3. Rule 8: 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

      1. e.g. include “negligently” to indicate a claim of negligence

    3. a demand for the relief sought, which may include relief in the alternative or different types of relief

  4. Plausibility standard (Iqbal) to survive motion to dismiss for failure to state a claim under Rule 12(b)(6):

    1. Isolate legal allegations and conclusory statements

      1. Bare assertions that are nothing more than formulaic recitation of the elements of a claim are conclusory and not entitled to assumption of truth.

    2. The remainder of allegations must contain sufficient facts to state a claim that is plausible.

  5. Policy: Iqbal, Towmbly

    1. Iqbal is good

      1. Control the cost of discovery

      2. Function as a gateway to proceedings under generous discovery provision of FRCP

      3. Fewer cases will pass the motion to dismiss and therefore fewer judicial resources will be wasted.

    2. Flaw of Iqbal:

      1. It is the role of discovery, not complaint, to sort out the facts. It is sometimes difficult to find evidence before discovery

      2. The Iqbal rule has the potential of denying plaintiffs with meritorious claims in court by raising insurmountable hurdles at the pleading stage.

      3. Making a judgment under the Iqbal rule comes close to deciding facts that should be decided by jury

      4. Rule 11(b)(3) appears to allow the P to sue without knowing the facts necessary to establish a claim, so long as she has reason to believe that she will likely have evidentiary support after investigation or discovery.

      5. Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. A court must take the allegations as true, unless they are sufficiently fantastic as to defy reality, no matter how skeptical the court may be. Therefore should follow Rule 11 standards.

  6. Pleading alternatively or inconsistently

    1. Under Rule 8(d)(3) P may assert as many alternative versions of the claim as he has evidence to support, may include both legal and equitable claims in the same complaint, and may assert different versions of a claim regardless of consistency.

    2. It must be within the ethical limits of Rule 11.

  7. Rule 11

    1. Ethical limits on legal allegations: the representations are formed after an inquiry reasonably under the circumstances

      1. Law prong: Rule 11(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law

        1. Can argue for reversal or modification of existing law or establishment of new law.

      2. Fact prong: Rule 11(b)(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

        1. Factual allegation: must have evidentiary support

        2. Specifically identified factual allegation: will likely have evidentiary support

          1. However, if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention.

    2. Sanctions

      1. Motion for sanctions by the opposite party:

        1. Must be filed independently – cannot combine with other motion

        2. Other side has 21 days to withdraw problematic complaint (safe harbor).

          1. Rationales for safe harbor provision: encourage novel claims/ new challenges; encourage lawyers to talk; protect judicial resources

          2. Rationales against safe harbor provision: encourage inadequate investigation/ unfounded claims

      2. On the court’s initiative

        1. In this case, no attorney fee can be awarded

      3. Factors in determining necessity of sanction, a court has significant discretion

        1. Objective standard: eliminate any empty-head pure-heart justification for patently frivolous arguments.

          1. New law: need more clarification, not sure if it is...

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