Litigation in Federal Court
Pleading
Historical Ways to State a Claim
[1] Common Law: Rules Courts
[2] Equitable Pleading: Specialty Courts
[3] Code Pleading: Fact-Based Civil Actions
Notice Pleading — The Modern Era
FRCP 7(a): Only these pleadings are allowed:
[1] The Plaintiff’s complaint
[2] The Defendant’s answer to a complaint
[3-7] Complicated and less-common counter/cross claims
FRCP 8(a): A plaintiff’s pleading must contain:
[1] a short and plain statement of the grounds for the court’s jurisdiction
[2] a short and plain statement of the claim showing that the pleader is entitled to relief
[3] a demand for the relief sought
FRCP 9: Heightened pleading standards for special claims;if the claim is not explicitly listed in FRCP 9 or another statute, no heightened pleading is required.
Notice Pleading 2.0 — Facts and Plausibility
“Twiqbal” Rule: when evaluating the defendant’s motion to dismiss for failure to state a claim under FRCP 12(b)(6), the plaintiff’s complaint must:
[1] Avoid Conclusory Statements: a conclusory statement is generally just a simple recital of the elements of a cause of action without particularized facts to support them (ex. defendant had a duty, defendant breached that duty, and that breach caused the injury to plaintiff); If plaintiff violates this standard, their factual allegations will not be assumed to be true.
[2] State Plausible Claims: the plaintiff’s claims must be the most plausible inference from the facts; if other inferences are equally plausible, the case should be dismissed.
o Ashcroft v. Iqbal, 556 U.S. 662 (2009)
Motion to Dismiss
General Dismissal Standard
FRCP 12(b): 7 ways for a defendant to dismiss a case before filing an answer.
[1] lack of subject matter jurisdiction.
[2] lack of personal jurisdiction.
[3] improper venue.
[4] insufficient process (technical issues).
[5] insufficient service of process.
[6] failure to state a claim upon which relief can be granted (same as demur)
[7] failure to join a party under FRCP 19.
Other Rule 12 Motions: things a defendant can do early in a case.
[c] Motion for Judgement on the Pleadings (aka, Motion to Dismiss after Answer); if you move to dismiss before filing an answer, use 12(b)(6); if after, use 12(c).
[d] Adding some evidence before discovery converts to a different motion.
[e] Motion for a More Definite Statement
[f] Motion to Strike
Amending Pleadings
FRCP 15(a): Amendments Before Trial
(1) Amending as a Matter of Course. A party may amend its pleading...
(A) 21 days after service, or
(B) 21 days after Defendant’s Answer, or 21 days after service of a motion under Rule 12(b), (e), or (f).
(2) Other Amendments. In all other cases, a party may amend its pleading only with…
[1] the opposing party’s written consent, or
[2] the court’s leave, which should only be given when justice so requires.