Civ Pro outline I. Personal Jurisdiction A. Article III in the constitution limits federal power to 3 types of cases. 1.

Cases arising under constitutional law 2. Cases arising under federal law. 3. Cases arising between citizens of different states (Diversity) a. Citizenship determined by domicile b. Domicile is defined by physical presence, along with a state of mind about remaining there. (Hawkins v McGee) 4. All other cases must be tried in state courts C. Pennoyer (1877) Created a geographic model with 3 types of personal jurisdiction. 1. In Rem only effective against property. (Constructive notice ok) 2. In Personam power over an individual. Can be gained in 3 ways under Pennoyer. (Actual notice required) a. Domicile in forum state. b. personal notice in forum state (tagged). c. voluntary consent. 3. Quasi in Rem although the property is not a part of the lawsuit, it is seized and attached at the outset of the proceedings and used to pay the judgment. 4. Sets up a framework requiring power, consent and notice. D. Federal Rules of Civil Procedure (1938) Outline the procedure for Federal Courts. 1. Rule 12G If jurisdictional issues are not raised with the first pretrial motion or first answer, the jurisdictional objection is waived. 2. If objection is raised properly, the issue is preserved. 3. D can make a special appearance, to contest jurisdiction without waiving his right to object. E. International Shoe (1945) outlined ways to gain personal jurisdiction over corporations. Shifts from the geographic model of Pennoyer. 1. Minimum contacts test (two prong test) a. D must have certain minimum contacts with the forum state. i. should be systematic and continuous ii. not irregular or casual iii. Purposeful Availment -World Wide Volkswagon foreseeability is not enough, if D made no solicitations, sales, or placed ads in a state. iv. if contacts not extensive, contact must be related to claim (Relatedness)

b. Ruling should not offend traditional notions of fair play and justice. protects against burdensome litigation. (Five factors) i. Burden on the defendant -distance travelled -location of witnesses, evidence - wealth, resources of D considered. ii. Forum states interest in adjudicating the suit - Did the injury take place in forum state? - Is plaintiff a citizen of the state? iii. Plaintiffs interest in obtaining convenient, effective relief (witnesses, evidence, etc. iv. The interstate judicial systems interest in obtaining most efficient resolution v. Shared interest of the several states in furthering fundamental substantive social policies (will continued adjudication undermine the policy of another state?) 2. Seperately addresses notice (Must be reasonably calculated to give actual notice.) 3. In a high water mark for the expansion of PJ Insurance company deemed to be under California jurisdiction because of a single contact. (McGee v International Life Ins. Co.) a. single act of special quality and nature was enough for PJ b. Solicited business in the state c. Extended obligations for both parties 4. Hanson v Drenckla a. Unilateral activity of plaintiff is not enough to establish PJ b. Not focused solely on convenience, but also on a limiting of each states sovereignty 5. Rationale: Quid Pro Quo since the D benefits from a jurisdictions rules, he is also subject to them. Purposeful Availment 6. Relatedness between defendant, forum, and litigation is key F. General Jurisdiction 1. Jurisdiction over any claim 2. Every individual or corporation is subject to general jurisdiction in at least one state. Ways to gain general jurisdiction: a. Citizenship b. Place where corporation is incorporated. c. Principle place of business (corporation) d. Extensive contacts G. Specific Jurisdiction 1. Can arise from a single contact

2. Contact must be related to the claim. 3. Nature of claim is crucial (Relatedness) CONTINUUM FROM GLANNON GOES HERE G. Shaffer v Heitner (1977) 1. Abolishes quasi in rem jurisdiction. 2. Instead, applies minimum contacts test to individuals 3. limits in rem jurisdiction a. The presence of property in a state may bear on the existence of jurisdiction by providing contacts. b. When the property itself is in dispute, even if the D has no other contacts in the state. c. In suits for injury suffered on the land of an absentee owner. 4. Determines that International Shoe does apply to individuals. (Constitutional yardstick) 5. Parts I-III of Shaffer are still good law. Part IV where the law applied to the facts of the shareholders derivative action not good any more. (see Brennans dissent.) also, see Burger King. H. Stream of Commerce test to determine minimum contacts 1. No one test governs (3 tests developed in Asahi opinion) a. O'Connor's test (Stream of Commerce plus) i. "something more" is needed ii. Designed product for the state iii. Ads directed to the state iv. marketing through distributors v. stations set up to give regular advice in state vi. etc. vii Kennedy's test from Nicastro same as O'Connor's b. Brennan's test i. Less stringent than O'Connor's test ii. Mere foreseeability that a product will end up in a particular state is enough to constitute minimum contacts. c. Steven's test i. not well-defined ii. Focuses on volume, value, and hazardous nature of the product in question. d. Ginsburg's dissent (Nicastro) i. very liberal ii. 4 products into a distant state enough for minimum contacts e. Breyer's test - single isolated sale is not enough. 2. These tests are only for the first prong of International Shoe. 3. Goes to establish purposeful availment

4. Side note: Asahi was decided on the basis of the fair-play test, NOT minimum contacts. I. Burger King v. Rudkzewicz 1. Single contract of a special nature allows for specific jurisdiction. a. K must have "continuous obligations" b. over a long period of time. 2. K included a choice of law clause, which weighed in decision 3. BK implicitly overrules Shaffer (in it's application of the rules to the facts of the case) 4. BK does not apply if there is overwhelming bargaining power, fraud, or undue influence 5. Stronger showing of fairness factors can balance out weaker min. contacts, and vise versa J. Determining min. contacts in special situations 1. Calder Effects Test a. Mainly used for intentional torts b. A forum state may gain jurisdiction if D knew that the brunt of the injury would be felt in that state. i. Palvlovich majority view - mere awareness is a relevant factor, but is NOT enough. There must be some act directed toward that state. ii. Minority view - awareness of harm is enough (such as circulation of newspapers.) 2. Zippo test for internet contacts a. Creates a spectrum: highly interactive websites <----------> passive, informational websites more likely to assert PJ less likely ability to form a K is relevant b. Provides minimal guidance in finding minimum contacts K. FLOW CHART FOR DETERMINING PERSONAL JURISDICTION (RECAP) 1. Examine state's particular long-arm statute a. does it stretch to the same limits of Shoe, or is it more restrictive? b. Must mention on exam, even if it folds into part 2 c. Federal courts look to the long-arm statute in the state where it is sitting 2. International Shoe Analysis (2 prong) (SPECIFIC JURISDICTION) a. Minimum Contacts test(purposeful availment) i. Long term relationship with extended obligations enough (Burger King) ii. Foreign company selling to US through a distributer does not avail itself (McIntyre, plurality). Dissent sees US as a single market for foreign company and would f

find availment on that basis ("unresolved tension in the law") Also, distributer must be found not to be acting under the control of the manufacturer as a sales agent b. Traditional notions of fair play and substantial justice test (5 prongs, 1st 3 prongs are most important) i. Burden on the defendant -distance travelled -location of witnesses, evidence - wealth, resources of D considered. ii. Forum states interest in adjudicating the suit - Did the injury take place in forum state? - Is plaintiff a citizen of the state? iii. Plaintiffs interest in obtaining convenient, effective relief (witnesses, evidence, etc. iv. The interstate judicial systems interest in obtaining most efficient resolution v. Shared interest of the several states in furthering fundamental substantive social policies (will continued adjudication undermine the policy of another state?) L. General Jurisdiction 1. No longer concerned with relatedness. Can gain jurisdiction for any type of law suit. 2. Slam dunks for finding general jurisdiction a. citizenship (indiv.) b. Principle place of business (corp.) c. state of incorporation (corp.) 3. Beyond the slam dunks, the issue is less clear. Becomes a case by case analysis of fact patterns 4. Extensive contacts a. in Perkins, general jurisdiction was found when corp. set up an office in Ohio to escape WWII i. office in Ohio ii. correspondence iii. distributed salary checks iv. maintained 2 bank accounts there v. held several director meetings vi. two secretaries vii. Jurisdiction because of necessity? Philistine courts were closed due to war - there was nowhere else to file suit) b. in Helicpteros, no jurisdiction was found i. One time visit to Texas to finalize contract ii. Pilot training in Texas iii. Regular purchase of helicopters and helicopter parts. "Mere purchases, even at regular intervals", not enough to support general jurisdiction.

c. Tuazon v Reynolds found general jurisdiction i. hundreds of millions of dollars worth of business in Washington ii. license to do business iii. regularly advertised iv. engaged in political lobbying v. leased office space for sales office and 10 employees vi. 30 additional employees working out of their homes to assist retail stores. d. Goodyear v. Brown i. Stream of commerce going into a distant state does not support general jurisdiction 5. Personal Service (Burnham) a. If personally tagged, general jurisdiction applies. You can throw the Shoe Analysis out the window. b. Scalia justifies it on the basis of tradition. Int'l Shoe only addressing out of state D's, so personal service is effective. (4 votes) c. Brennan (also 4 votes) Personal Service is ok under fairness analysis because D is voluntarily present in the state. d. For exam - personal service cite Burnham, both Scalia and Brennan's views and go ahead and go into thorough Int'l Shoe analysis e. Ways to deliver service i. Informal waiver of service - easiest and cheapest way to deliver service -requires complaint plus waiver (as substitute for a summons) -D does not waive any objections to PJ -encouraged by the court with a carrot and a stick. -carrot: extends time to respond from 21 to 60 days. -stick: D responsible to pay for service of process if he refuses to sign waiver -D usually has 30 days to respond to waiver -May ignore waiver with good cause (usually limited to didn't recieve, or didn't understand the language) ii. Formal service -requires a summons and a complaint - must occur within 120 days of filing -process server must be 18+ and not a party to the lawsuit -serving individuals (focus on this type for exam, as opposed to corporations)

-pineapple express tagging -must follow state laws where the court is sitting, or where service will occur -substitute for service: leaving a copy of the complaint at the person's usual abode with someone with suitable age and discretion who resides there. (Actual notice not required Mullane) -Or delivering a copy to a designated agent. f. Rule 3 provides that statute of limitations stops running at filing. (State law varies - sometimes it stops upon service). 6. Consent (Carnival Cruise) a. Courts previously did not allow a limiting of forum through contracts, but now allow it because of increasing workload. b. Entire civil system may be viewed as a default system which may be contracted around. c. Diagram "C" is for clause (or Kontract) Choice of law Consent to jurisdiction Forum selection Arbitration Cognovit <-----I-------------------------I----------------------------I--------------------I--------------I------> less extreme <----> more extreme Choice of law - by itself is a relevant factor, but is not dispositive. (Court may have discretion). Consent to Jurisdiction - recognition that jurisdiction exists in a part. forum. Forum Selection - EG "Carnival Cruise - "All lawsuits must be brought in Fl." (Forum selection clause can satisfy venue and personal jurisdiction. Not subject matter jurisdiction.) Arbitration - Agree to settle disputes in front of private arbitrator who may issue a binding decision. This was only intended for B2B transactions, but has been expanded to include employment and consumer relations. Cognovit - Allows for a judgment to be immediately entered against a person (used sometimes for mortgage defaults). Some states have banned or limited it's use. 7. Reasons for upholding clauses a. Avoids Shoe confusion b. In the company's interest to bring all suits in a particular forum c. Savings theoretically passed to consumers d. for exam, know that the clauses are generally enforced by courts

8. Clauses still subject to scrutiny for fairness... a. for fraud b. for overreaching c. for undue influence d. for issues of notice e. if they are adopted in bad faith to discourage litigation f. "take-it-or-leave-it clauses are highly scrutinized -notice is essential -can get around scrutiny with 30 or 60 day cancellation windows RECAP #2 (see notes for clarification) Pennoyer Power

at Pennoyer - presence in state. In rem/In personam split modern day- relationship with state. Shaffer merges in rem/in personam. (Shoe and it's progeny) Consent Operates as a substitute for power at Pennoyer, - it only operated at time of proceeding modern day - advanced consent is effective Carnival Cruise Notice Seperate issue from power Constructive notice required (Mullane) Personal "tagging" will always suffice Notice should be "reasonably calculated" to actually apprise the defendant of the pendency of the action 9. Long Arm Statutes a. Cannot exceed PJ under constitution, but may limit it. b. Federal Courts adopt the state long arm where the court is sitting. c. Some long arm statutes allow to the full extent of the const. (Cali.), others much more restrictive (Fla.) (Gibbens) 10. Venue a. attempts to connect cases to the correct court b. analysis is district-by-district c. 28 USC 1391 -(a1, b1) residency test venue appropriate where any D resides, if all D's reside in the same state -(a2, b2) transactional test

any district in which a substantial part of the events or omissions giving rise to the claim occurred. (or if property that is subject to action is located) -(a3, b3) fallback test only available if 1 and 2 both fail. similar to Shoe minimum contact test, but focusing on a district as if the district were a state. Must only be satisfied for one of the Ds. (in effect, this gets rid of the venue requirement, and we fall back to Personal Jurisdiction) d. 1391c - defines where a corporation resides for purposes of venue -treated as residents for any district in which they have Personal Jurisdiction. e. 1391d An alien may be sued in any district 11. Forum Non Conveniens (State court only) a. not found in any law, but is a doctrine used by courts at their discretion. b. Plaintiff's choice of forum should be strongly preferred, rarely disturbed. c. almost never available if P is from the state d. change in law not a relevant factor, unless remedy is so inadequate as to not be a remedy at all e. Ct can dismiss on FNC before determining whether it has jurisdiction. f. FNC can be seen as a counterbalance against expansive PJ after Shoe. g. balancing test: 1- alternative forum able to hear the case 2- (priv. interest factor) when the trial in the original forum, is it excessively burdensome for the D? priv. interest factors relative ease of access to sources of proof subpeona power for unwilling witnesses cost of obtaining attendance of willing witnesses possibility of visiting premises any other practical problems, etc. 3- (public) when the original forum is innappropriate because of considerations affecting the cts own administrative and legal problems. public interest factors administrative difficulties flowing from ct congestion

local interest in having localized controversies decided at home unfairness of burdening citizens with jury duty would local court have knowledge of applicable law 12. 28 USC 1404 a. similar to FNC, but for Fed cts. b. "For convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Broad discretion given to the judge. c. tremendous overlap with FNC analysis d. only D can move for dismissal on FNC, but 1404 may be used by P's or D's. e. Ct has more discretion with 1404. No strong presumption that Ps choice of forum should not be disturbed (as with FNC) f. If in the Federal system, always use 1404, unless alternative forum is abroad (can't transfer out of Fed system). g. FNC - dismissal, 1404 - transfer II. Subject Matter Jurisdiction A. Article III 1. Every Fed. Court besides Supreme Court is optional 2. Power vested in Congress to create inferior courts 3. Section 2 allows Fed to hear cases cases: a. arising under the Constitution b. Arising under the laws of the US c. Arising under US treaties d. Between citizens of diff. states (if amt. in controversy is met) 4. There is a strong presumption that state and federal courts have concurrent jurisdiction for Federal claims. 5. Diversity cases may also be heard in state court 6. SMJ may be raised at any stage, including on appeal, and may be raised sua sponte 7. SMJ may not be consented to. 8. SMJ is analyzed at the moment of filing (subsequent events don't matter) B. Well-pleaded complaint rule 1. For SMJ to exist for Fed claims, the complaint must arise under US law based on the plaintiff's good faith complaint 2. An anticipated defense based on US laws is not sufficient. C. 12(b)(1) motion to dismiss for lack of SMJ 1. May be used at any time 2. May not be relitigated once a court has ruled on SMJ 3. not preclusive - case may be re-filed. D. 12(b)(6) motion to dismiss for failure to state a claim 1. Treated as a judgment on the merits 2. P may not re-file

3. If all Fed claims are dismissed, court has discretion to continue hearing state claims E. Collateral attacks 1. case brought in second forum (F2) 2. if SMJ is fully litigated, it may not be challenged in collateral attack, nor if SMJ is not objected to. 3. In the narrow context of a bankruptcy case, Supreme Ct did allow a collateral attack of SMJ 4. if D defaults, there is some evidence that a person cannot later challenge SMJ in a collateral attack F. More facts on SMJ 1. SMJ analyzed at the moment of filing 2. If D challenges both SMJ and PJ, court has discretion on which argument to hear first (12b1 or 12b6) 3. divorce, alimony, child support not allowed in federal ct (domestic jurisdiction exception) DIVERSITY G. 1332(a) - Strawbridge - complete diversity is required (no plaintiff can be from the same state of any defendant) - judicial gloss on 1332 - non-diverse parties can be dropped to continue with diversity case if they are not required for lawsuit, and case may continue - case bet. citz. of Mex and citz. of Japan (aline v. alien) cannot be brought in fed ct. - Cal citizen. v. mexico and Japan citizens - this works under 1332-a-2 - a3 is the same as a1, but builds upon it -addition of foreign parties ok - alien/citizen vs. alien is not authorized (no "build-on" to a2, like there is in a1) - alien admitted for permanent residence treated as a citizen in the place they are domiciled - Saadeh case - doesn't allow alien v alien - perm. resident (intent of statute was to contract, not expand diversity juris.) cts come down on both sides (literal vs. statutory history interpretation of statute) - DC, Guam, PR, considered states for purposes of diversity - corporations look to princ. place of business and place of incorporation for est. diversity - partnerships - treated as a collection of individuals E. Amount in Controversy 1. Must be OVER 75,000 (at least $75,000.01) 2. statute is applied literally 3. P's allegations are controlling as long as allegations are made in good faith. (Cts. rarely second-guess) 4. Injunctive relief can be problematic. Cts. look to: -Value of injunction to P -Or cost to D

-Or value or cost to whomever is seeking SMJ -Or if any of the above tests satisfy amnt.-in-cont. 5. Aggregated claims? sometimes -P vD YES -PP v D or P v DD (more than one party on either side - NO -exception - common undivided interest (eg husband and wife jointly owning common property) - P1($80,000) v D P2 ($50,000, same claim) v. D P2 may piggyback on P1's jurisdiction 6. Joint and several liability Hypo. P ($80,000) v D1, Doctor & D2, Hospital or P ($80,000) v D1, D2 co-conspirators D's are jointly and severally liable either D may be forced to pay the full liability to the P. (P may not collect more than the full amount) for exam - joint and several liability will be telegraphed if it applies 7. Counter claims - Compulsory - exists over the same basic facts (a loose factual connection will suffice) jurisdiction exists - if unrelated - requires an independent basis for SMJ F. Supplemental Jurisdiction (grant of supp. juris in 1367a) - power over claims that by themselves would normally not get into court. - must be one count over which ct does have SMJ (the "hook" claim) - governed by 1367(a) - must be so closely related to the "hook" claim that they form the same case or controversy - loose factual connection test -first identify hook claim then identify supp. claims, then determine if they are closely enough related -ct has discretion to decline supp. claims -REPO section -in certain cases 1367(b) takes away supp. juris. in certain situations -if "hook" claim is solely based on diversity, supp. juris will not exist when: -claims by P's against P's made parties Rule 14, 19, 20 or 24 - proposed to be joined by 19 -by persons seeking to intervene as Ps under Rule 24 -Repo section does not apply to fed question jurisdiction

- would dismissal or settlement of state claims affect the hook claim? ct has discretion -Ameriquest dismissed on ct's discretionary basis -discretionary factors under 1367(c) 1. claim raises a novel or complex issue 2. state claims predominate over the state claims (scope and number) - Szandrey-Ramos 3. district ct has dismissed all hook claims 4. in exceptional cases, there are other compelling reasons for dismissal. - Can't usually appeal a discretionary dismissal, because there is no final judgment ******for exam - expect question on the "repo" section"*************** G. Removal - Fed cts will often share SMJ w/ State courts - Removal is used by D's to second-guess P's decision of forum - to nearest Federal courthouse (that encompasses the state court at issue) -30 day clock for removal 30 day window applies to all removals at time complaint is amended, even after 1 year from commencement -for diversity cases - 1 year clock from commencement of suit -Can wait to challenge PJ until after removal to fed ct. -If removal is flawed, you can get remanded back to state court - Forum defendant rule: Only applies to diversity removals - may not remove if D is a citizen of the state where suit is filed. (1441(b)) - federal question jurisdiction - removal ok without considering citizenship of parties - Catterpillar v Lewis -Non-diverse party settles, so diversity is established -in-state D added explicitly to stop removal by destroying diversity - commonplace tactic - outside party - ins. company "crashes the party" as second P - District court treated Wayne as effectively dropped, but diversity was not effectively established at the time of removal - fraudulent joinder - no valid legal claim against joined party - very high standard H. Eerie (choice of law) - Every state has it's own "choice of law" law - Eerie is vertical choice of law issue (Federal or State) in the context of diversity cases - State law will provide the governing standards except where federal law applies (Federal Question cases) - Eeire overturns Swift

I. Pleadings -Complaints always derived from a "story" - pleading rules often linked to later stages of litigation. - Pleading serve a "screening out function"

-Swift decided that Federal courts were bound to follow state statutes, but not state judge-made common law - Rule 1652 - Laws of several states = only applies to state statutes (overruled by Eerie) -Swift led to massive forum shopping - citizen of a state could be bound by 2 different laws - viewed as "evil" or "pernicious". - eg Black and White Taxi Co - P absolves Kentucky corp., moves across state lines, and re-files in Fed courts. -(several justifications) -under Swift, outsiders were using Swift as an advantage against in-state parties -Also unconstitutional (Legislature not allowed to create state laws) - if Congress can't make laws, why would a Federal court be allowed to do so?) -Eerie adopts a more "common-law" mentality (as opposed to civil.) There is no such thing as federal general common law. - Rules of Decision Act - Must apply state substantive law, but federal procedural law - what is substantive, and what is procedural? - burden of proof? so closely connected to the property right that it should be viewed as substantive - statute of limitations? also substantive (out of concern for forum shopping) - no strict test for determining substantive/procedural - if rule "touches conduct outside of the court system" standard proposed, but there is no bright line rule.

-Historical perspective 1) Common Law 1200s - 1850s -key word: "writ" - a royal order directing the sheriff to take action. -only about 30 different writs. rigid/formalistic system -tend to obscure real issues 2) Code pleading (1850- ) -Field Codes (NY) -Complaint had to state in ordinary plain language all the facts which would permit recovery. -disadvantage - led to disputes over what was a "fact", "evidence of a fact", or "mere conclusions"

-30 rules quickly expanded to about 3,000 rules 3) Notice pleading (1938 - ) -Fed. rules of Civ. procedure adopted -short and plain statement of claim showing the pleader is entitled to relief (fair notice) -most liberal system evah (very low hurdle) -detailed facts developed at later stages. -lowered threshold for P's -procedure should be supportive of substantive law, not frustrate subst. law on technicalities -discovery - requests for admissions, documents, interrogatories, depositions -Example of Notice Pleading -"On date, at place, the D negligently drove a motor vehicle against the P." -this is enough under rule 8. -IRL, complaints are far more detailed to force the D to respond to each allegation (admit, deny, or insufficient evidence). -detailed complaint puts the D to the test. -detailed allegations may allow a lawyer to speak to the media about a matter he would otherwise be ethically bound not to discuss. - Supreme ct in Conley (overturned by Twombly): -"accepted rule is that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." -12(b)(6) - no set of facts can possibly be a valid claim if all factual allegations are assumed to be correct. 4) Twombly arguably creates a new era of pleading (2007-) "Plausibility pleading" -illustrates the basic pleading problem: "How much detail?" -little detail -allows parties to adjust dispute to facts as they develop -opens courtroom door -not a strong screening-out function -can leave D's in the dark about what's really going on -Vague pleadings not problematic (discovery would narrow the facts)

-liberal pleading justified by expansive discovery rights -more detail -courts can more easily screen out cases - May cause wrangling over pleading details -Charles Clark: "Every generation will have to come to the conclusion that there is no substitute for trial." - FRCP 8 has been described as the cornerstone of the system. Twombly has arguably destabilized the whole system - Rule 8(a)(1) -allegation of SMJ, (NOT PERSONAL JURISDICTION) - early dismissal hugely beneficial for D (much cheaper) - also better for plaintiff - en banc review (very rare) - every single active judge hears a case. Only way to overturn a prior panel decision -Generally, there is a right to appeal from a district ct judgment, but Supreme Court review is discretionary - FRCP 8(3)(d) Inconsistent Claims or Defenses -A party may state as many separate claims or defenses that it has, regardless of consistency - Rule 8(a) "a short and plain statement of the claim showing that the pleader is entitled to relief." - Twombly - radical reinterpretation of rule 8 - Issue in Twombly - how detailed do complaints have to be? Court is addressing the general "No set of facts" standard from Conley. -Conley retired by Twombly (not limited to antitrust cases, or cases with a high cost of discovery) -New Regime: Plausibility pleading standard -12(b)(6) - now examines factual sufficiency in the complaint (instead of legal sufficiency) -does not require "extremely detailed facts" -nor does it not require"no facts at all" -requires a "showing" of enough factual content to make the claim "plausible" -"impossible to make a showing without some facts." -standard forms in the appendix are still technically approved -must be enough factual allegations to raise a right to relief above a speculative level - Iqbal - explained that Twombly applies to all cases (not just antitrust) - State courts have not adopted Twombly plausibility pleading yet. --Twombly fits with a larger narrative shutting the courthouse door.

- Rule 8(a) -3 core requirements -jurisdiction -short plain statement of the claim (reinterpreted by Twombly) -relief requested -(need not address PJ or venue) -Rule 9(b) - specialized pleading rules for fraud - requires that the "time, place, and nature of the alleged misrepresentations be disclosed to the party accused of fraud." - policy reasons -fraud allegations considered more serious - implying "bad moral character" -concern with undoing commercial transactions -fair notice to the opposing party - pleadings often serve as a blueprint for the trial proceedings (Jones v Block) -Rule 11 (Sanctions) - pleadings, motions, papers must be signed by attorney or pro se party - when presenting a pleading, motion or paper, signature certifies that to the best of your knowledge after a reasonable investigation... 1) not presenting paper for improper purpose (ie harassment) 2) legal arguments are warranted by existing law or by a good faith argument to extend, reverse or modify existing law 3) Factual contentions have evidentiary support 4) Denials have evidentiary support -later oral advocacy of a paper previously filed also falls under rule 11 -sanctions are discretionary. "may" impose sanctions after appropriate notice has been given, and an opportunity to be heard -two way to impose sanctions -Court may impose su esponte (Ct must issue an order to show cause) "tell me why you should not be sanctioned" -Party may file a motion for rule 11 sanctions (must file a separate motion after 21 day "safe harbor") -possible penalties -nonmonetary -fine paid to court -attorney fees paid to innocent party (only imposed upon a motion, not su esponte) -sanctions are discretionary -rule 11 does not cover discovery misconduct -party is not responsible for monetary fines under rule 11, just their lawyers -Responding to a complaint

-21 days to respond -answer -must respond to each allegation in the complaint -3 responses - admit, deny, lack information -if allegation not denied, it is deemed admitted -8b - D's denial must respond fairly to the allegations -if denying a part - must admit what is true, and deny the rest (no blanket denials) -complaint plus answer is a great blueprint for the rest of the case (points of conflict) -pre-answer motion -does not respond to each allegation -includes 12b1-12b7 motions -often do not involve detailed facts (possible exception - minimum contacts) -12b2-12b5 automatically waived if not included in 1st response -12b6 argument for failure to state a claim NOT waived -if unsuccessful, 14 days allowed to file answer -default -third option - judgment entered against D automatically -motions: -12e motion for more definite statement rarely used (use 12b6 instead) -sometimes used as an answer for fraud claims (because of 9b) -12f motion to strike -removes inappropriate/irrelevant/scandalous language -can be used to strike an allegation that is simply not allowed under law -12c motion for judgment on the pleadings -if D admits enough to satisfy claim, a judgment can be issued on the basis of the pleadings