The Complaint!

Rule 4 - Summons! Rule 4(a) - contents! Rule 4(m) - time limit, 120 days! Rule 8(a) - Making a claim for relief! The standard for specicity is a "short and plain statement" for notice pleading! balance the plaintiffs desire to survive a motion to dismiss, a court's desire to avoid frivolous claims, and a defendant's desire to have adequate notice! designed to encourage a decision on the merits of the case itself, not the form of pleading! Must show: (1) grounds for court's jurisdiction 8(a)(1), (2) plaintiff's entitlement to relief 8(a)(2), and plaintiff's relief sought 8(a)(3) - if no evidence until after discovery state "upon information and belief"! Rule(d)(1) states that each allegation must be "simple, concise, and direct" no technical form is required! Rule 8(d)(2) - permits pleading in the alternative! Rule 8(d)(3) - Pleadings in the alternative can be inconsistent with each other! McCormick - drunk driving - CB 144! " might have had a convincing theory, but brought up on appeal, rather than incorporating theory in complaint, so court considered only original complaint! Rule 11 - an attorney must sign documents submitted to the court (including pleadings): see 26(g) for disclosure/discovery requests.! Rule 11(b) - by signing, attorney is certifying that to the best of his "knowledge, information, and belief" after a reasonable inquiry on the issue presented ! without phrase "upon information and belief" one is indicating that discovery for that point is not needed as much, as it is based on personal knowledge! Rule 11(b)(3) - Factual contentions have evidentiary support, or if identied, will likely have support after discovery! Rule 11(b)(4) - applies same standards/rules to denials/factual contentions ! Rule 12(b)- presenting defenses to claims for relief - Mitchell ! Rule 12(b)(6) - Failure to state a claim upon which relief can be granted! demurrer = failure to state a claim! focus: is there a legal wrong, is the court jurisdiction over this issue proper, what is the scope of the law! Rule 9(b) - Pleading special matters! Higher standard than Rule 8(a), must state with particularity the circumstances of fraud or mistake! Usually fact pleading! States of mind can be alleged generally! Rule 15 - Amended and supplemental pleadings! Rule 15(a) - may amend once 21 days after serving - Mitchell (truck shooting)CB 164 (167) - DENY - raised new theory on appeal! otherwise with opposition consent or courts leave! Rule 15 (b) - amendment during trial - Crompton (paper shredder) CB 246 - DENY undue delay and undue prejudice ! should have known! court may allow if new evidence is introduced and is objected to! new issue may be expressly or impliedly introduced! Rule 15(c) - Relation back - Krupski v. Costa Crociere CB 250 - GRANTED! Statute of limitations may allow relation back is;! arises out of the same transaction/occurrence ! Rule 15(c)(1)(c)changes party, and party knew or should have known action would be brought agains them; and will not be unreasonably prejudiced by the action!

Cases!
Cases supporting "short and plain statement" notice pleading: Conley, Erickson! Cases in support of fact pleading: Twombly, Iqbal, Gillispie (however, this was more of an issue with a complaint made up of entirely conclusory language)!

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Rule 8(a)! Gillispie CB 130 ! Plaintiff uses conclusory language i.e. assault/false imprisonment in her complaint, rather than stating the actual conduct that provoked her complaint - the elements of those causes of action! calls for some specicity, perhaps beyond the plain language of 8(a) in that it wants facts, rather than just a cause of action: what, when, where, who, relationships between " and #! Conley CB 137 (notes) - supports relaxed pleading! " complaint alleges discrimination, but fails to specically state a claim, or intent! court strays from Gillispie in that it does not require facts to be stated in complaint! nature of of complaint (discrimination) is in its essence circumstantial - and would require discovery to denitively prove.! circumstances make the complaint a plausible explanation for what has happened! "not be dismissed for failure to state a claim unless beyond doubt... no set of facts"! Twombly CB 197! Departs from the prior relaxed pleading standard! " makes conclusory allegations of conspiracy in a similar sense to Conley (circumstantial) - court wants facts! Develops idea of plausibility: " must show plausibility of allegations (more than possibility, less than probability) : a plus factor - with relation to other plausible legal explanations i.e. coincidental parallel behavior rather than conspiracy! Dissent by Stevens compares proceeding to Rule 56 summary judgement standards than one for pleading! Large scope of complaint and huge discovery costs are considered! Erickson CB 213 (notes) - decided two weeks after twombly! complaint like twombly doesn't show that injury was caused by the cause of action alleged any more than any other explanation ! trial and appellate dismiss - supreme court allows and criticizes lower courts for now using "liberal pleading standards"! Court says it found this complaint to be more plausible than the one in twombly! Iqbal CB 205! Differs from Erickson because of the scope of the complaint ( racial proling government policy against a group of people + Ashcroft) takes on a greater burden of proof! Conclusory language used, based on twombly (and conley), will not indicate plausibility! Moves the court away from short and plain statements (see form 11)! !

The Answer & Motions!

Responses to a complaint! Rule 8(b) - admit/deny/lack of knowledge! Admit all, deny all, or partial - must give specic responses to each section! Admission is evidence, lack of knowledge is essentially a denial - unless you should have reason to know - then it becomes an admission!

Rule 8(b)(5) - Crompton 246 - information was in their control - should have known! Rule 8(c)(1) - Afrmative defenses! Has same effect as motion to dismiss! Burden to plead Afrmative Defense is on the #! Rule 12 - Defense/Object/Motions! Answer in 21 days! Dismiss! Judgement on the pleadings! Rule 12(h)(3) - lack of subject matter jurisdiction cannot be waived.! Counterclaims ! Rule 13(a) - Compulsory Counterclaim - (use it or lose it)! Arises out of same transaction or occurrence - Wigglesworth CB 238 - Deny - not out of same occurrence ! Claim based on the same evidence! Does not add another party! Exception! claim was already subject of a pending action! Rule 13(b) - permissive - may state a claim that is not compulsory - or may save for another time! Crossclaim! Rule 13(g) - made against a Co-party - always permissive! usually against a co-defendant! can be made if arrises out of same transaction or occurrence or property that is the subject matter of original claim! includes a claim that a co-defendant may be liable for all or part of the claim against the cross claimant.! Amendments! Rule 15 - SEE ABOVE! !

Third Parties!
Rule 14 - Impleader: If i'm liable to them, you are liable to me: Third Party Practice Clark CB299 - Granted - repo men subcontracted liable. - Rule 42 allows separate trials Klotz CB 304 - Denied - improper impleader! Rule 20 - Permissive Joinder: " or # can join if they have right to relief jointly or right to relief is asserted against them jointly! Rule 22 - Interpleader - Stakeholder: insurance i.e. life insurance policy with multiple claims - bring in the claimants to ght against each other! Rule 24 - Intervention - party may force its way into a suit if its interests are related to the subject matter of the action! !

Discovery!
Rule 26 governs - Rule 16 has pretrial conference (related)! Rule26(a)(1) - initial disclosures! disclosure of the basics of your case (witness/docs it may use to support claim/ defense CB392! Rule 26(a)(2) & 26(b)(4)! disclosure of expert testimony! Rule 26(a)(3) - Pretrial Disclosure ! Names of witnesses, identication of deposition excerpts, exhibits to be submitted in trial! relates to RULE 16(e)!

Rule 26(b) - discovery scope and limits! any non privileged material reasonably calculated to lead to the discovery of evidence (does not need to be admissible)! Rule 26(b)(2) - limits! standard for unreasonable duplicity or unreasonably cumulative ! relevance weighed against burden/cost to produce! Rule 26(b)(3) & 26(b)(5) - WORK PRODUCT - See bottom of CB 439! Rule 26(c) - Protective Orders! Order issued by the court to protect one of the parties from abusive discovery! Rule 26(d) - Timing and sequence - Cannot seek discovery until parties have conferred under Rule 26(f)! Rule 26(e) - Supplementing disclosure - must supplement in timely fashion if learns that disclosure or response was incorrect ! Rule 26(f) - Conference of the parties: planning for discovery! after pleadings, before discovery/scheduling conference! parties go through checklist before going before judge for rule 16 ! !

Discovery Devices!
Rule 30 - Depositions! Rule 30(b)(6) - directed to an organization! Rule 33 - Interrogatories ! Rule 33(a) - may serve up to 25, may relate to any matter that can be inquired into under 26(b)! Rule 33(b) - must be answered or objected to within 30 days! Rule 33(d) - option to produce business records! Rule 34 - Document requirement! Rule 34(a)(1) - Required to produce docs in your "possession, custody, or control"! Rule 45 - Subpoena! discovery from non parties, for live testimony and documents!