Relevant Rules

1. FRCP 07: Types of Pleadings; Forms of Motions in General

2. FRCP 08: General Rules of Pleadings; Affirmative Defenses; Alternative or Inconsistencies Pleadings

3. FRCP 09: Pleading Special Matters (incl. Fraud/Mistake)

4. FRCP 10: Form of Pleadings

5. FRCP 11: Signing Pleadings; Representations to the Courts + Sanctions

6. FRCP 23.1: Shareholder of Corp. Derivative Action

Specificity

In General – Rule 8(a)

1. Pleading includes: Jurisdiction Statement; short & plain statement of the claim showing relief.

   1. Purposes: notice to , assert aggrievance, show case exists.

   2. (8)(a)(1): jurisdiction; (2): short/plain claim; (3) demand for relief

2. Should include some facts, not just legal conclusions (Gillispie v. Goodyear, N.C. 1963, CB119 – lady claim “trespass”, etc. Note: N.C. was code pleading; probably wouldn’t stand up in FRCP either)

   1. Look at Form 11 (Example of approved pleading)

3. Lack of detail not enough to dismiss the case, but needs some facts. has to be notified, but π doesn’t have to reveal his cards. (US v. Board of Harbor Commissioners, D.Delaware 1977, CB128 – spilling oil b/w June and November).

   1. can file 12(e) for more definite statement if pleading unintelligible; rejected in Board of Harbor Commissioners – If FRCP 8 satisfied, 12(e) is improper.

4. Excessively long pleadings not ok. (Mendez v. Draham D.N.J. 2002, CB 130 – 1020 paragraphs, granted motion to strike – 12(f)).

5. π should do “reasonable inquiry” – not necessarily need to include everything (See below, Zuk/Rule11). [Tension b/w FRCP 8 & 11]

6. Employment discrimination, previous requirement to allege prima facie case of discrimination. BUT 8(a)(2) as usual, Conley applies, not have to plead PF case. (Swierkiewicz v. Sorema, U.S. 2002, CB174) [Reaffirms Conley; Pre-Twombly]

7. Can dismiss pleadings that are inconceivable/implausible. (Richards v. Duke University, D.C.D.C. 2007, CB194 – GULC crazy lady, w/ Bill Gates’ love child).

Conley, Twombly and Iqbal – Specificity under 8(a)

8. 1950s: Relaxed pleadings. Dismissed only if “plaintiff can prove no set of facts” that would entitle him to relief. (Conley v. Gibson, U.S. 1957 CB126/192 – RR union giving unequal treatment, Civil rights case. Very π friendly.)

   1. E.g., see Swierkiewicz (2002)

9. 2007: Heightened pleading requirement. Enough facts to make complaint plausible, not merely possible/conceivable. No probability requirement, but some reasonable expectation that discovery would find necessary evidence. Retires Conley. (Bell Atlantic v. Twombly, U.S. 2007, CB 179, Souter. 7-2)

   1. Stevens Dissent: Pleading was clear about what was alleged. FRCP to keep litigants IN, not out. The fact that discovery is expensive can be mitigated other ways. Let judge control discovery, e.g.

   2. Confusion after Twombly about whether it applies only to anti-trust or all civil action…

10. 2009: Heightened pleading requirement in Twombly was extended to all federal cases. (Ashcroft v. Iqbal, U.S. 2009, Supp, Kennedy. 5-4).

Special Cases with Heightened Specificity – 9(b)

11. The Rule:

    1. Fraud or Mistake: Must state with particularity the circumstances.

    2. However, malice/intent/knowledge/other conditions of the mind can be alleged generally.

12. 2^nd Circuit Rule: can’t expect π to plead ’s actual knowledge. But, π required to supply factual basis “strong inference” for their conclusory allegations. Reasons: 1) Fair notice to on the grounds. 2) Protect reputation from harm. 3) diminish possibility of π with a largely groundless claim can get a settlement. (Ross v. A.H. Robins, 2^nd Cir 1979, CB158)

    1. π friendly

    2. Codified into Congress’ Private Securities Litigation Reform Act (PSLRA, 1995)

    3. Scienter: intention to deceive/manipulate/defraud.

13. Tellabs v. Makor Issues & Rights (U.S. 2007, CB159)

    1. Question: Defining “strong inference” of scienter

    2. Ginsburg, majority: not just...

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