Pleadings Outline

1. PLEADINGS

   1. Complaint

A complaint header must contain the following:

• Name of the court (e.g. United States District Court for the Eastern District of Michigan)

• Names of the parties: (e.g. Hawkins (Plaintiff) v. McGee (Defendant))

• Civil Action No. <Number>

• Title of the Complaint (e.g. Complaint for Negligence)

  1. Rule 7: Pleadings and Motions

• (a) Only these pleadings are allowed: (1) Complaint, (2) answer to complaint, (3) an answer to a counterclaim designated as a counterclaim; (4) answer to crossclaim; (5) third-party complaint; (6) answer to third-party complaint; (7) if court orders it, a reply to an answer.

• (b) Rules for Motions and Court Docs

  • (1) Motions must be:

    • (a) in writing unless made during a hearing or trial;

    • (b) state the grounds for seeking the order;

    • (c) state the relief sought

    1. Rule 8(a): Drafting a Complaint

• (1) Grounds for the court’s jurisdiction. This must be stated in sufficient detail.

• (2) A “short, plain statement showing the plaintiff is entitled to relief.”

  • * NOTE: The stated facts must add up to a claim for relief; the court will ignore conclusions of law.

• (3) A prayer for relief.

  • This must include the damages sought. The number is not binding unless there is a default judgment.

  • Special damages are damages that are not the “natural foreseeable result” of the alleged wrong. These must be stated specifically. 9(b).

• A complaint need not state the legal theory under which Π is suing, only the facts showing she deserves relief.

  1. Rule 8(d): General

• (1) Pleadings should be simple, concise, and direct.

• (2) A party may state multiple hypothetical versions of her claim.

• (3) The complaint may contain alternative, contradictory complaints initially.

  • Π must narrow her suit down to consistent complaints after discovery.

  • Discovery will let Π weed out her weak or inconsistent complaints for amendment.

    1. Twombly and Iqbal

The current pleading standard for complaints was set out in two recent legal cases:

• Bell Atlantic Corp. v. Twombly (2007):

  • This was an antitrust action. Π alleged Δ companies had colluded to set prices.

  • The court held that Π’s pleadings were insufficient, since they merely stated the fact that Δs’ prices tracked one another and the legal conclusion that collusion had occurred.

  • Assuming the facts alleged were true, Π could at best argue it was equally likely that Δs had colluded or, alternatively, that the pricing was merely responsive to market pressure.

• Ashcroft v. Iqbal

  • The court took the result in Twombly and determined that it applies to all federal suits.

  • Π alleged Δ attorney general and other officials had conspired to deprive him of his rights because he was a Muslim.

  • Π stated the facts that he was abused in prison but only the legal conclusion that Δ had conspired to make it happen.

  • The court held that, in order for Π’s complaint to be sufficient, he needed to state facts which, if true, would entitle him to relief.

The new pleading standard is as follows:

• The new reading of Rule 8(a) turns on the word “show.”

• Claims need to be supported by factual allegations, which, if presumed to be true, plausibly lead to an inference of liability. It is not sufficient that liability be merely possible.

• Conclusions of law are ignored and the complaint is examined for factual sufficiency.

• If pleadings aren’t sufficient under Iqbal, they may be dismissed under 12(b)(6).

POLICY

Upside: The Supreme Court ostensibly ruled the way it did in Iqbal to deter frivolous, poorly supported complaints from making it to discovery. Previously, a plaintiff could command the court’s attention by merely stating a prima facie case against the defendant. Now, the plaintiff must establish factual backing for every facet of his claim. This prevents plaintiffs from bringing meritless lawsuits in hopes of compelling settlement before reaching the expensive discovery stage.

Downside: Often, a plaintiff files a complaint knowing only the facts of his injury, and can’t state facts showing the defendant is liable yet. The reason we have discovery is to give parties the chance to gather facts from each other. Iqbal deprives a too-ignorant plaintiff of the right even to reach discovery, even though it may turn out he has a valid case.

Note: Iqbal does not require all the facts alleged to be true. But Rule 11(b)(3) requires parties to certify that their allegations have or likely will have evidentiary support at discovery. Perhaps a way for courts to soften Iqbal is to enforce 11(b)(3) less stringently.

1. Rule 9(b): Pleading Special Matters

• In alleging fraud or mistake, a party must state the circumstances with particularity.

• Conditions of mind such as malice, intent, or knowledge need only be alleged generally.

  1. Burden of Proof

Whichever party has the burden of pleading an issue will have the burden of proof for that issue.

1. Answer

   1. Rule 8(b): Responding to Complaint; Admissions and Denials

• (1) In responding to a complaint, a party must:

  • (A) state in short and plain terms its defenses to each claim

  • (B) admit or deny every allegation.

• (2) Denials must fairly respond the substance of the allegation.

• (3) General Denial: a party intends in good faith to deny everything. Specific denials: the party responds to designated allegations it means to deny.

  • A general denial is only appropriate when it is totally sincere.

  • If a general denial is made and part of it is found to be true, then the whole denial is treated as an admission. (Zielinski)

• (4) Denial in Part: a party admits the part that is true and denies the rest.

• (5) Lacking knowledge or information: a party that lacks knowledge sufficient to form a belief about an allegation must so state…this is treated as a denial.

• (6) Anything a party doesn’t deny is considered admitted.

  1. Rule 8(c): Affirmative Defenses

These must be raised in the response if they are to be used at all, so as not to unfairly surprise Π. At trial the defendant will bear the burden of proof on...

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