Pleading the Complaint
Motions Against the Complaint
The Complaint
Three Essential Elements of the Complaint- FRCP 8(a)
(a)(1)-Jurisdiction- plaintiff must allege case is within SMJ (some
states require PJ & Venue)
(a)(2)-Statement of the claim- short and plain statement showing the
pleader is entitled to relief- plaintiff needs to only state facts, not legal
theory relied upon.
(a)(3)-Relief- demand for specific relief (i.e. money damages, injunction,
etc.)
Special (Heightened) Pleading Rules
9(b)- must plead fraud with particularity
9(g)- must plead any special damages
Other claims do not demand a specific pleading- Leatherman
Pleading in the Alternative- 8(e)(2)A party may set forth two or more
Defenses against the validity of the
complaint
Defenses- 12(b)- defenses against the validity of the complaint
Motion for More Definite Statement- 12(e)- if complaint is so ?vague and
ambiguous that defendant cannot reasonably be required to frame a
responsive pleading?- Matos v. Nextran
Motion to Strike- 12(f)- if plaintiff has included ?redundant, immaterial,
impertinent or scandalous? material in complaint, defendant may move to
have material stricken from pleading. -Matos v. Nextran
Consolidation- defendant is limited to one pre-answer motion
Waiver- 12(h)- Certain defenses that can be raised by 12(b) motion will be
waived if they are not included in the 12(b) motion.
PJ, Venue, Insufficient service of process; but SMJ can never be waived.
Motions Delay Defendant?s Obligation to Answer
12(a)(1)- states that a defendant must file answer within 20 days of
complaint12(a)(4)- filing motions alters time allowed because defendant is
then not required to answer until 10 days after court answers motion.
Evolution of Pleadings
The Answer
3 Possible Responses to each allegation:
Admit, Deny, Lack of Sufficient Information
Affirmative Defenses
Defenses that must be explicitly pleaded
in the answer if defendant is to raise in trial
8(c)- non-exclusive list of affirmative
defenses (including contributory
negligence, fraud, res judicata, SOL,
illegality)
Counterclaim- Claim against the plaintiff
offering reason why the plaintiff is liable to
the defendant
Rule 12(h) Waiver of Defenses
(1) Waiver - the below defenses are
WAIVED if
(A) omitted from a joined motion per
12(g)(2); OR
(B) failing to either:
(i) make it by motion under this rule; OR
(ii) include it in a responsive pleading. .
.
Waived defenses - 12(b)...
(2) lack of PJ
(3) imporper venue
(4) insufficient process
(5) insufficient service of process.
(2) Raising certain claims For failure to state a claim upon which relief
can be granted, to join a person req. by
19(b), or to state: a legal defense may be
raised:
(A) in a 7(a) pleading;
(B) by 12(c) motion; OR
(C) at trial.
(3) Lack of Subject matter jurisdiction may
be raised by the court itself as grounds for
dismissal AT ANY TIME.
The Reply
The plaintiff?s response to
counterclaim (plaintiff does not
respond to affirmative defenses)
1. Does the service meet Constitutional standards?
- Must be "reasonably calculated" to appraise a party of
the action. Mullane v. Central Hanover Bank & Trust
- If ? learns that actions taken are unreasonable, he
must make additional efforts.
Formal Service to Individual -Rule 4(e)
2. Does the method of service satisfy Rule 4(e)?
(a)(2) - Delivering copy of summons to individual personally
(b)(2) - leaving copy of summons @ indvl's dwlling with a person
of suitable age.
(c)(2) - delivery by law enforcement agent
(1) - Following state procedures for service where claim is
brought
(1) - If serving ? outside forum state, ? may serve per ? 's state
rules.
Rule 4(c)(1)- Serive must include both complaint AND summons
Rule 4(a)(1)- what all has to be included
Rule (4)(b)- get the summons from the clerk's office
Conley Standard- “a complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.” BROAD.
Conley v. Gibson
Twombly Standard (Speculation)- overruled Conley standard. holding that
factual allegations of parallel conduct alone did not state a claim for relief
under § 1 of the Sherman Act. In response to the plaintiffs’ argument that
under Fed. R. Civ. P. 8(a)(2) only a “short and plain statement of the claim”
was required, Justice Souter noted that the Rule “requires a ‘showing,’
rather than a blanket assertion of entitlement to relief ” that relied merely
on labels and conclusion. To meet this standard, a §1 claim must be pled
“with enough factual matter (taken as true) to suggest that an agreement
was made,” or at least “to raise a reasonable expectation that discovery
will reveal evidence of illegal agreement. Bell Atlantic Corporation v.
Twombly
Iqbal Standard (Plausibility)- The court went further in judging what the
actual factual allegations would satisfy. The Court, in a decision written by
Justice Kennedy, held that whether a complaint is "plausible," as that term
is used by Twombly, turns not on whether the alleged conduct is unlikely,
but on whether the complaint contains sufficient non conclusory factual
allegations to support a reasonable inference that the conduct occurred.
Ashcroft v. Iqbal.
Twombly-Iqbal Standard- The Twombly/Iqbal pleading standards not only
specify that a complaint must be plausible on its face, but it must bring
forth sufficient factual allegations that nudge a claim across the line from
conceivable to plausible. Additionally, the claim must raise some legal
theory that is cognizable as a matter of law
Court must accept all allegations as true EXCEPT "'legal conclusions'.
Only a plausible claim for relief survives. Concievable does not mean
plausible. Inference of mere possibility of misconduct is insufficient to
show entitlement to relief.
Service of Process
Is service waived or formal?
Formal Service to Corp. or
Entity-Rule 4(j)
If served within United States - Rule
4(h)(1)
(A) - Pursuant to 4(e)(1) for serving
individual; or
(B) - By delievering a copy of
summpons & complaint to an officer,
managing or general agent, or any
Waiver of Process-Rule 4(d)
(1) - ? has duty to avoid
"unnecessary expenses"
(2)(B) - If ? refuses to waive w/o
good cause, he will bear expenses
of service
(3) - Gives 60 days to respond to
complaint if waived. Std. srvc gives
20 days instead.
You got served.
Rule 4(m) - Was service filed
within 120 days of complaint?
-If not, did ? have good cause
not to?
-If no to both, suit must be
dismsissed.
Challenging Service of Process - Rule 12(b)(5)
Per Rule 12(h)(1), failure to challenge sufficient service in
the initial pleadings WAIVES ? 's right to do so in the
future.
Special Rules Boles Mentioned
Rule 4(f)- individual defendant in foreign
country
Rule 4(g)- minor or incompetant person
Rule 4(i)- U.S. Government as defendant