Pleading
COMPLAINTS 8(a)
Complaint must include short and plain statement:
1) jurisdiction (SMJ, PJ, Venue)
2) statement of the claim (law) and evidence that entitled to relief
(fact); and
3) a demand for the relief sought, which may include relief in the
alternative or different types of relief (judgement)
(applies to counter-claims, cross-claims, and third party complaint)
Twiqbal: plausibility as pleading standard; 12(b)(6) – Failure to State a
Claim
1) identify the cause of action and its elements
2) ignore any allegations that merely recite elements of the cause of
action with no supporting evidence (conclusory/legal elements)
3) consider whether the remaining factual allegations (taken as
true) are plausible and support liability under those elements
Taken as true unless clearly unbelievable
Fraud 9(b)– must be plausible on its face
• With particularity (must state who, what, where,
when, why of the alleged misrepresentations)
Defendant:
- Affirmative Defense must be in answer 8(c) has list
- If not pleaded, they are waived
Amendments
1. If the SOL has not run, Plaintiff can always
withdraw initial complain and refile with the
amendments
2. 15 (a) & (C) after the SOL has run
15 (A)
 A(1) a – w/in 21 days; permissive or
 A(2) – will opposing party or court give
consent
 Defendant
- More defendants alleviate the pressure
- More defendants will want to allege
wrongdoing by D
- Unnecessary delay while D’s assets are
restricted & litigation costs continue to
rise
 Court – Is this fair?
- Reasons for the delay (why was it
delayed/the amendment late)
- Bad faith?
- Whether the newly-added parties are
prejudiced by the amendment
- Whether trying the case on the merits
requires adding the other two parties
RULE 20 must be met
15 (C)  C(1) a – relation back statute included in State
Law
 Check to see if it the statute mentions that it
arises out of the same transaction or
occurrences
 C(1) b - add claim
 C(1) c - add party – 15C1b must be satisfied
 Same transactions or occurrences
 The claims arise form the same nucleus
of operative facts…(Bonerb)
 notice w/in 90 days (Rule 4m)
 Filing complaint OR SOL running
 Not be prejudiced (i) and
 Known or should have known (ii)
Joinder
18(a)- Joinder of Claims
 Against Opposing Party: ANY
CLAIMS may be joined
 Court can sever lots of unrelated
claims R42(b)
Sentence Frames:
The result is appropriate, given the efficiency and consistency
goals of R20(a)p. As long as the claims will require resolution
of common issues, joint litigation in a single suit will save time
for the parties, the witnesses, and the court.
Joinder of Lots of Unrelated Claims:
If a single trial does not make sense, the court may order a
separate trial of the unrelated counterclaim pursuant to R
42(b).
13- Crossclaims & Counter Joinder of
Claims
 13(a)(1)- Compulsory counterclaims
 (A) arises out of the same
transaction or occurrence that
is the subject matter of the
opposing party’s claim; AND
 (B) Does not require adding
another party who the court
does not have jurisdiction over
 13(b) – Permissive Counterclaim
 Any claim that is not
compulsory
 13(g)- Crossclaim
 Always compulsory
 subject matter of the
transaction or occurrence
20(b) allows to
separate parties
(factors to
consider) 
R18(a) – Permissive Joinder of Parties by Plaintiff
AND
R13(b)- Permissive Counterclaims
Function basically the same by giving plaintiffs and
defendants lots of freedom to assert all claims!!!
20Permissive Joinder of Party
(a)(1) – Plaintiffs ; (a)(2)- Defendants
 Same transaction and occurrence,
or series of transaction or
occurrences
 Common question of Law or Fact
 Judicial Economy & Prejudice
 The issues sought to be tried
separately are significantly
different from one another?
 Will there be a significant
overlap of witnesses and
testimony?
 Whether the party opposing
the severance will be
prejudiced if granted?
 Whether the party requesting
the severance will be
prejudiced if not granted?
19 (A)- Compulsory Joinder of Party
Rule 19 establishes a two-step process for analyzing compulsory party
joinder. It is meant to be a narrow requirement. The first question is
whether a person is a necessary party. Under 19(a), there are three tests to
see if a person is a required party, and only one of them must be met, not
all three.
 Rule 19(a)(1)(A) requires joinder if “in that person’s absence, the court
cannot accord complete relief among existing parties.”
 As between [current P] and [current D] , their dispute can be
completely resolved whether or not [alleged necessary party] is a
party.
 Rule 19(a)(1)(B)(i) requires joinder if the current lawsuit will impair or
impede the person’s ability to protect their interest.
 Whatever happens in the current lawsuit, [Alleged Necessary
party] remains free to bring a separate action.
 Rule 19(a)(1)(B)(ii) requires joinder if the party is required to prevent
the risk of inconsistent obligations
 As clarified by Temple, joint tortfeasors are not required parties. The
plaintiff may bring the parties together using permissive joinder of
parties pursuant to R20, but they are not required to.
If they are necessary party
under R19(a) then…
19 (B) If JOINDER IS INFEASIBLE
Rule 19 (b) is required when the party finds that they are required under
R19(a) but where joinder would pose a jurisdictional issue. If the court lacks
personal jurisdiction or subject matter jurisdiction, then joinder would be
impossible.
 Does the court have Personal Jurisdiction: Rule 4(k)(1)(B) expands a
federal court’s jurisdictional reach for joining parties under R19 to
within 100 miles of the courthouse. If the party cannot be served w/I
100 miles and otherwise is not subject to the courts personal
jurisdiction, then joinder is impossible.
 Would the court retain subject matter jurisdiction?
 If answer is NO to EITHER then the court has to determine if In the
interests of justice and equity if it makes sense to proceed without the
absentee, or not to proceed at all.
 Rule 19 provides four factors for the court to consider in making
this determination
 To what extent might a judgement be prejudicial to the
parties or to the absent person?
 To what extent can relief be shaped to avoid prejudice.
 Ex. If the court can minimize the prejudicial impact
by awarding money damages instead of injunctive
relief then dismissal may be unwarranted.
 Whether judgement in the persons absence would be
adequate?
 Whether the plaintiff would have a remedy if the case was
dismissed?
Summary Judgement Checklist: - Rule 56(a): - 30 days after discovery
 Any party can move for SJ
 SJ shall be granted if:
 Shows no genuine dispute as to any material fact and movant is entitled to judgement as a
matter of law.
 Material fact: fact that might affect the outcome of the issue
 Genuine Dispute: can a jury could reasonably find for the nonmoving party?
Evidence for non-moving party must be insufficient for jury to reasonably find
for nonmoving party.
- The evidence on the record must give rise
Burden of Production/Persuasion
1) If moving party will bear burden of persuasion at trial, that party must support its motion with credible evidence
showing prima facie case– using any of the materials specified in rule 56c that would entitle it to a directed
verdict if not controverted at trial –burden production then shifts to nonmoving party to prove there will be a
genuine issue for trial
2) If the nonmoving party will bear the burden of persuasion at trial, the moving party may seek summary
judgment
o Submit affirmative evidence that negates an essential element of the nonmoving party’s claim
o The moving party may demonstrate to the Court that the nonmoving party’s evidence is insufficient to
establish an essential element of the nonmoving party’s claim- lack of supporting evidence
•
Inferences and Situation must be construed in the light most favorable to the non-movant!
Minimally Reasonable Inference:
•
•
Not enough merely to allege dispute
Need real evidence, beyond the pleadings (can be already in the record)
•
Support reasonable, alternative version of the truth
Framework for Summary Judgment Established by Trilogy:
•Celotex: A party making a motion for summary judgment does not need to provide affirmative evidence
(in the form of affidavits) to support its motion if they are moving under the idea that the plaintiff did not
sufficiently prove a material element of their claim.
•Liberty Lobby: The standard for summary judgment mirrors the standard for a direct verdict (
Zenith: If plaintiff’s claim is implausible in context, plaintiff must furnish more persuasive evidence to
defeat S.J.
Judgement as a Matter of Law (Directed Verdict) R 50(a):
 No genuine issue of material fact and so clear
 Made before case is submitted to jury
 Must specify judgement sought and basis for
motion
 Same standard as SJ
 Court’s options:
 Rule on it
 Wait until after jury verdict
Renewed Judgement as a Matter of Law (JNOV) R50(b):
 After jury verdict
 Must have previously moved for JMOL
 Must specify grounds for motion -jury returned
verdict that no reasonable jury could; jury was
irrational
 Court’s options:
 Grant motion and enter judgement as a
matter of law -no new trial
 Allow existing judgement to stand (deny
motion)
 Order a new trial (not popular)
 Only okay when evidence on one side is so weak or
so strong
Personal Jurisdiction
1. Long-Arm Statute?
§ 1.03. Personal Jurisdiction Based on Conduct.
(a) A court may exercise personal jurisdiction over a person, who acts
directly or by an agent, as to a cause of action claim for relief arising
from the person's
(1) transacting any business in this state;
(2) contracting to supply services or things in this state;
(3) causing tortious injury by an act or omission in this state;
(4) causing tortious injury in this state by an act or omission outside this
state if he regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods
used or consumed or services rendered, in this state; or
(5) having an interest in, using, or possessing real property in this state ;
or
(6) contracting to insure any person, property, or risk located within this
state at the time of contracting].
(b) When jurisdiction over a person is based solely upon this section, only a
cause of action claim for relief arising from acts enumerated in this section
may be asserted against him.
2. CONSTITUTIONAL? – Due process analysis
In multiple plaintiff cases, analyze specific
jurisdiction over the defendant on a plaintiff-byplaintiff basis
Sentence Frames:
The defendant may/may not be sued in the state on this claim under the minimum contacts
test because it has/has not purposefully conducted activities there, and the claim
does/does not arise out of this purposeful contact.
The plaintiff’s unilateral contacts with the forum do not create a constitutional basis for
requiring the defendant to defend there. Hanson
Though the action may be foreseeable, that is not enough. WWV
There is a critical difference between an act which has an effect in the forum state and one
directed at the forum itself. See Walden
X has waived their jurisdictional elements by defending on the merits without objecting to
jurisdiction. It must always be raised in the first response!
Failed Collateral Attack: [STATE] is bound by the Full Faith and Credit Clause to enforce the
judgment.
Subject Matter Jurisdiction
 1331 – FQ
 Tort Actions, K claims = State Law
 Patent/Copyright Law, admiralty or maritime = Fed
 Must be basis of Plaintiffs Claim (well pleaded complaint)
Sentence Frames:
Here, X relies directly on federal law as the source of the substantive right they seek
to enforce
 1332 -- Diversity Jurisdiction
 Citizenship:
 Individuals: Domiciled -physical presence and intent
 Corporations: incorporation and principal place of
business (“nerve center”)
 Complete diversity needed (Strawbridge)
 Amount in Controversy:
 75,000+
 Good faith claim
 P can aggregate Claims
 1367 – Supplemental
 (a) – FQ & Diversity – so related
 Party can be joined if their AiC does not meet but
satisfies the so related req’t
 (b) If Diversity alone, and plaintiff joining claim would destroy
diversity then not allowed
Discretionary Refusal of Supplemental Jurisdiction
 Will the court decline jurisdiction over the additional claim?
 Does the claim raise a difficult issue of state law?
 Does the state law claim substantially predominate?
 Has the court dismissed the claim over which it has original
jurisdiction?
 Is there some other compelling reason to decline jurisdiction?
 If yes to any  court may decline to exercise supplemental
jurisdiction
Not
Valid
$40,000
$80,000
Valid
△
△
𝜋1
𝜋2
$40,000
$40,000
△
$40,000
𝜋
$40,000
$40,000
△1
△2
Preclusion – Efficiency, Consistency, Finality
Res Judicata/Claim Preclusion
 Same Claim
 Transactional Test- **majority** does it arise
out of the same underlying transaction or
series of transactions (factual situation)?
 Same Parties or those In Privity (Gonzalez)
 Substantial Control
 Virtual Representation
 Valid & Final Judgment
 Did the first court have PJ or SMJ?
 Interlocutory judgments are not final enough
 Judgements on Appeals are still considered
final (in most jurisdictions)
 On the Merits
 Judgments for plaintiffs are nearly always on
the merits
 Dismissals for lack of jurisdiction, improper
venue, or failure to join a party are NOT on the
merits
 Other dismissals are on the merits UNLESS
court dismisses “without prejudice” or “with
leave to amend”
 Voluntary Dismissals are w/o prejudice unless
specified
Substantial Control
 Insurer assuming insured’s defense
 Indemnitor who defends action
against indemnitee
 Owner who controls litigation against
firm
 NO: nonparty retaining attorney of
party
 NO: nonparty assisted in financing
 NO: nonparty testified as witness
 NO: nonparty procured
witnesses/evidence
 NO: nonparty furnished his attorneys
assistance
Burden on D who asserts there was sub
control
Virtual Representation
 No Special or Legal Relationship
Between the Groups
 Always Constructive or Actual Notice
of Earlier Suit
 Actual or Implied Consent to Be
If all of these are true, then the Def can file a 12b6 motion
Bound
or R8c Affirmative defense.
 No signs of bad faith for not joining
Sentence Frames:
group
The underlying goal of claim preclusion is to promote efficiency, consistency, and
finality, and the transactional test tends to further those goals.
The rights of different plaintiffs to relief arising out of a single incidence are not
considered one claim just because they arise out of the same transaction/facts
Issue Preclusion/Collateral Estoppel
 Identical Issue of fact/law
 Actually litigated
 Was evidence about the issue presented at a pervious
trial or in SJ papers?
 Logically, is it clear (even in a general verdict) that the
issue was litigated?
 Valid and Final judgment
 Essential to judgment → Jarosz
 Did the issue get treated closely and carefully enough to
be essential to the judgement?
 Did this issue actually impact the verdict?
 Alternative holdings? May not have preclusive effect
 Was the party to be bound either a Party or in Privity with a
Party
 Non- Mutual Issue Preclusion
 Offensive C/E: courts are much more reluctant to
permit- Parklane
 Could the party trying to assert Collateral
Estoppel have intervened in the earlier
suit?
 Did defendant have incentive to litigate the
first action?
 Are there previous inconsistent
judgments?
 Are there any procedural opportunities
available to defendant in the second suit
that was not available in the first suit?
 Defensive: Non-mutual Def uses to preclude P on
issue they lost on already. – PLAINTIFF HAD TO
LOSE ALREADY