Civil Procedure Review Pre-Complaint I.

FRCP #11: Signing Pleadings, Motions & Other Papers; Representations to Court; Sanctions a. (a) Must contain signature to certify compliance b. (b) Representations to court (pleadings & motions) i. Reasonable investigation (due diligence) ii. Non-frivolous arguments iii. Factual contentions have evidentiary support or likely to have support after opportunity for discovery iv. v. Sanctions can only be filed after the party has been notified of possible violation & has been corrected within 21 days vi. Courts may impose sanctions sua sponte 1. On their own accord c. Synthesis: Stop, Think, Investigate, Research i. Complaint must be non-frivolous and include allegations which only have evidentiary support or will have support after discovery or further investigation

Complaint I. FRCP #8: General Rules of Pleading a. (a) Claim for relief i. Short and plain statement for courts jurisdiction ii. Short and plain statement showing pleader is entitled to relief 1. Conley (57) 2. Twombly/Iqbal (07/09) iii. Demand for relief sought b. (b) Denials and admissions (Answer) i. Any allegation not denied is admitted; pleading lack of knowledge is considered denial ii. Twombly/Iqbal does not apply to answer 1. A short and plain statement is sufficient c. (c) Affirmative defenses (Answer) i. An affirmative defense not raised in the answer is considered waived 1. Possible to later raise defense in amendment ii. Burden of proof is on the defendant iii. Fraud must be plead with particularity iv. All affirmative defenses must be stated in the answer v. Affirmative defenses are set up in the scope of discovery FRCP #9: Pleading Special Matters a. (b) Fraud or mistake

II.

i. Claim for fraud or defense of mistake requires pleading with particularity ii. One can plead malice, intent, knowledge, and other states of mind generally iii. When pleading fraud or mistake, apply Twombly/Iqbal standard 1. Who 2. What 3. Where 4. When 5. Why Service I. FRCP #4: Service of Process a. Must give defendant notice; part of procedural due process b. (c) Service i. (1) In general 1. Summons must be served with a complaint. Plaintiff is responsible for having summons and complaint served within 21 days after complaint is filed ii. (2) By Whom 1. Any person at least 18 and not a party iii. (3) At plaintiffs request a US Marshal, deputy, or person specifically appointed by a court c. How? i. (e) Natural person (if defendant is in the US) 1. Follow state law where court is located or where service is made 2. Doing any of the following: a. Serving individual personally b. Leave copy at defendants residence usual place of abode c. Delivering a copy to an authorized agent ii. (h) Describes additional service options for serving corporate defendants in the US 1. Corporations must be served in accordance with state law [4(e)(1)] or by delivering a copy of summons and complaint to a. An officer of the corporation b. A managing or general agent c. Any agent authorized by appointment or law to accept service 2. All states allow service of process by mail. a. Usually allow: i. Certified ii. Return Receipt Requested

b. Some allow: i. FedEx ii. UPS c. None allow i. Fax ii. Email 3. Serving defendant outside US is very complicated a. Seek counsel in that country b. Follow that countrys rules concerning process Provisional Remedies I. FRCP #65: Injunctions and Restraining Orders a. Filed after complaint, but before answer i. Attachment, replevin, TROs, preliminary injunctions, due process, garnishment, balancing tests, notice, hearing, affidavits b. TROs & Preliminary Injunctions i. In general 1. Court orders prohibiting defendant from engaging in certain conduct or 2. Requiring defendant to do something (mandatory injunction) ii. Difference in in the duration 1. TRO = 14 days 2. Preliminary injunction = duration of litigation iii. A court can issue a preliminary injunction only if they notify the adverse party iv. TRO 1. A court may issue without written or oral notice only if: a. Complaint clearly shows immediate and irreparable injury will occur to movant party b. Movants attorney certifies in writing any efforts made to give notice and reasons why it shouldnt be required v. Test for Preliminary Injunction v. TRO 1. Plaintiff will suffer irreparable harm if injunction is NOT granted 2. Plaintiff will probably prevail on the merits 3. In balancing equities, defendant wont be harmed more than plaintiff is helped 4. Granting preliminary injunction is in the publics best interest

Motion to Dismiss I. FRCP #12: Defenses and Objections

a. (a) Sets time limits for responding to Complaint/Answer i. (1)(a) Defendant must serve answer 1. Within 21 days after being served with summons and complaint; or 2. If it has timely waived service under Rule 4(d) within 60 days after the request for a waiver was sent or within 90 days after it was sent to defend outside the US ii. (1)(b) Party must serve an answer to counterclaim within 21 days after being served with the pleading iii. (1)(c) Party must reply to answer within 21 days after being served with an order to reply, unless order specifies different time iv. (4) Effects of a Motion 1. (a) If court denies motion, responsive pleading must be served within 14 days after notice 2. (b) If court grants motion for a more definite statement, pleading must be served within 14 days after more definite statement is served b. (b) How to Present Defenses i. (1) Lack of subject matter jurisdiction ii. (2) Lack of personal jurisdiction iii. (3) Improper venue iv. (4) Insufficient process v. (5) Insufficient service of process vi. (6) Failure to state a claim upon which relief can be granted vii. (7) Failure to join a party under Rule 19 1. Defenses must be asserted BEFORE the answer/pleading 2. If you dont file 12(b) motion before your answer, you waive the defenses in Rule 12(b) 2-5 unless you assert them in your answer 3. Rule 12(b)(6) or 12(b)(7) are NOT waived if not raised preanswer and can be raised in the answer, in a Rule 12(c) motion or as late as trial. 4. Rule 12(b)(1) is never waived and can be raised at any time c. (c) Motion for Judgment on the Pleadings i. Court matches up allegations of the complaint with the answer and decides whether judgment for the plaintiff should be entered on the basis of the pleadings. ii. Allegations made it clear the statute of limitations has run d. (e) Motion for More Definite Statement i. Motion for a more definite and certain statement ii. Serves as a form of discovery not otherwise permitted iii. Rarely and almost never successfully invoked e. (f) Motion to Strike i. Allows either party to challenge a part of the pleading that fails under the substantive law 1. Only applies to the answer and complaint

ii. Forces removal of irrelevant and prejudicial allegations in a pleading 1. Not relevant to case, immaterial, redundant, or scandalous f. (g) Joining Motions i. Motion under this rule may be joined with any other motion allowed by this rule g. (h) Waiving and preserving certain defenses i. Rule 12(b) 2-5 are waived unless they are inserted in the answer or by failing to make it a motion under this rule ii. Rule 12(b)(6) or 12(b)(7) are NOT waived if nor raised pre-answer and can be raised in the answer, in a Rule 12(c) motion or as late as trial iii. (3) Lack of subject matter jurisdiction can be raised at any time and is never waived. Amending the Complaint I. FRCP #15: Amended & Supplemental Pleadings a. (a) Amendments before trial i. (1) Party can amend once as a matter of right within 1. 21 days after serving it, or 2. After answer, motion to dismiss, motion for more definite statement, or motion to strike is filed a. You have 21 days to respond ii. (2) Party can amend its pleading only with opposing parties written consent or the courts leave 1. Court should freely give leave when justice so requires 2. Not granted if there is bad faith, futility, prejudice or undue delay iii. (3) Once a complaint is amended the opposing party has 14 days to respond b. (c) Relation Back of Amendments i. Only applies if youre trying to amend a complaint to add a new complaint and that claim relates back to the initial claim in the first complaint 1. Comes down to notice, due process standard ii. (1)(a) The law provides the applicable statute of limitations allows relation back or iii. (1)(b) The claim or defense must arise out of the conduct transaction or occurrence set out from the original pleading iv. (1)(c) Trying to add a new party in order to assert a claim against them. The claim asserted must arise out of the original pleading 1. (B), and within 120 days from filing complaint the party to be brought in by amendment

Rule 8(a) States that, in order for a complaint to be legally sufficient, it must contain three things: 1) Allegations to invoke the courts subject matter jurisdiction 2) Short and plain statement of the claim showing that the pleader is entitled to relief 3) A demand for relief sought Rule 8(a)(2) short and plain statement was the standard for over fifty years. However, in Twombly/Iqbal the court held that in order for a complaint to be sufficient under Rule 8(a)(2) and to survive a motion to dismiss under Rule 12(b)(6) the complaint must contain facts that if accepted as true will assert the claim as facially plausible. Facts plead must enable the court to make a reasonable inference that the defendant is liable. 1) Conley a. 1950 b. What is a short and plain statement? i. Gives defendant fair notice of plaintiffs claim and grounds upon which it rests ii. Simple, concise, and direct iii. Pleadings must be construed as to do justice 2) Swierkiewicz a. 2002 b. Should plaintiff plead prima facie case in age discrimination instead of a short and plain statement pursuant to Rule 8(a)? i. Only short and plain statement required ii. No facts! 3) Twombly a. 2007 b. Does short and plain statement per Rule 8(a) require fact pleading instead of merely notice pleading? i. New pleading standard: PLAUSIBILITY ii. Plaintiff must plead enough facts to raise a right to relief above the speculative level. 1. Must be plausible on its face iii. Complaint must contain enough facts to raise a reasonable expectation that discovery will reveal evidence 4) Iqbal a. (2009) b. What is plausibility pleading and what does it apply to? i. Applies to all civil actions c. Two Part Test i. Identify any conclusions (legal or factual) and disregard them ii. Consider whether facts that are left state a plausible claim d. Where the facts permit the court to infer the mere possibility of this conduct, the complaint has alleged but not shown an entitlement to relief i. Plausible is more than speculative, possible, conceivable

ii. Plausible is less than probable iii. Plausible is not naked assertions or facts consistent with defendants liability. iv. Plausible IS facts that nudge claim across the line from conceivable v. Plausible is reasonable expectation of support in discovery