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CIVIL PROCEDURE OUTLINE PLEADINGS I.

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Evolution of the FRCP – federal procedure for litigating claims. a. Adopted in 1930s during Great Depression, when confidence in country’s institutions was at an all-time low. Complicated system had effect of keeping people out of court. b. The creation of the FRC aimed to simplify how to bring disputes to Court, and to increase the public’s trust in US legal system. c. Code (code) pleading: Used in a minority of state courts, such as CA, IL, and NY. Requires that you plead operative facts that consist of a cause of action in ordinary and concise language. d. Notice (rule) pleading: Used in federal district court & most state trial courts. A complaint need only provide a “short & plain statement of a claim, upon which relief can be granted.” Must provide sufficient notice to permit D to prepare a defense. i. From common law to code pleading. 1. Extended exchange of written pleadings to sharply narrow the issues in dispute. Very complex & costly. 2. Then, mid-19th century, David Fields simplifies pleading procedure through the Field Code, or code pleading. a. Fields believed we needed to state sufficient facts to support each element of a claim. ii. From code pleading to notice pleading 1. Adopt the FRCP in 1930s, which meant the following for pleadings: a. (1) Reduces the kinds and # of pleadings permitted. b. (2) Adequacy of claim for relief depends on whether it provides fair notice of P’s claim to D (so that D may be able to prepare a defense). c. (3) A complaint only needs to state a claim upon which relief can be granted. d. (4) Claims and answers can be inconsistent at the pleading stage – there is much unknown before discovery opens. e. (5) All facts pleaded, and inferences fairly drawn from them, are true for sake of argument. Are facts, if true, sufficient to establish a claim? Various rules a. Rule 7 i. 7(a) and 7(b) specify what types of pleadings are allowed. We assume, for sake of argument, that all facts pleaded – and inferences drawn from them – are true. Ambiguities are construed in favor of pleader. ii. Complaint: P’s statement of claim. iii. Answer to a complaint: D’s respond to P’s claim. iv. Counterclaim: D’s filing to assert a claim against the P. v. Cross-claim: D’s filing to assert a claim against co-defendant. Must arise out of the same facts as P’s claim against D. vi. Third-party complaint: D’s filing of a complaint against a person who is not already a party to the action. D1 wants D2 to indemnify them. vii. Reply: A P, Co-D, or TPD responding to the D files a “reply” to the counterclaim and an answer to a cross-claim or third-party complaint. b. Rule 8(a)

CIVIL PROCEDURE OUTLINE i. Rule 8(a) states that a pleading that states a claim for relief must contain: 1. (1) a short and plain statement on the grounds for the court’s jurisdiction, 2. (2) a short and plain statement showing that the pleader is entitled to relief, and, 3. (3) a demand for relief sought. c. Rule 8(d) i. (2) a party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count/defense or in separate ones. For alternative statements, the pleading is sufficient if any of them are sufficient. ii. (3) a party may state as many separate claims or defenses as it has regardless of consistency (this applies even to fraud cases). d. Rule 9(b) i. (A) In alleging fraud, a party must state with particularity the circumstances constituting fraud or mistake; ii. (B) P must plead actual damages arising from her reliance on fraudulent statement; and, iii. (C) without a contract, only out-of-pocket expenses recoverable (IL law??) e. Rule 11 is intended to address dishonest pleading, not insufficient pleading. It is a particularly difficult standard that judges don’t like; hence, moving for dismissal – a 12(b)(6) – is a far more popular maneuver. i. Assertions of law: only lawyer is liable. Assertions of fact: both lawyer and client are liable. ii. 11© allows a court to impose a sanction on a party to amend a complaint. 1. (2) 21-day safe harbor provision. If mistakes aren’t corrected within 21 days, moving party will file motion w/Court. Requires moving party to serve other party, but not file for 21 days. 2. (3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why it shouldn't be found in violation of Rule 11(b) – honest representations to the Court. 3. (4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. 4. (5) Limitations on Monetary Sanctions: Court must not impose a monetary sanction: a. Against a represented party for violating Rule 11(b)(2); or b. On its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. f. Rule 12(b) i. A defendant may move to dismiss a case before they even respond to a claim, by asserting one of the following defenses: 1. Lack of SMJ [federal v. state]. 2. Lack of PJ [Is D subject to the authority of the state in which the claim has been brought?] 2

CIVIL PROCEDURE OUTLINE 3. Improper venue. 4. Insufficient process. 5. Insufficient service of process. 6. Failure to state a claim upon which relief can be granted. 7. Failure to join a party under Rule 19. g. A party waives any defense in Rule 12(b)(2) – (5) by failing to raise it by motion in the first instance, or in a responsive pleading or amendment as allowed by Rule 15(a)(1). Thus, they are called disfavored. h. 12(b)(1) can be pled at any time. The Court can also bring itself. i. 12(b)(6) cam be brought any time before trial. i. Rule 12(g)(1) shows us that a motion under this Rule can be joined with any other motion allowed by this rule. However, Rule 12(g)(2) says a party that makes a motion under this rule must not make another motion under this rule raising a defense that was available to them but omitted from its earlier motion. Look to takeaways. III.

Cases outlining the evolving pleading standard. a. Conley v. Gibson (SCOTUS 1957) i. Facts: Petitioners were Negro employees of railroads. P’s union did nothing to protect P’s against discriminatory acts by railroads; failed to represent them equally in good faith. D sought to dismiss claim on several grounds, including for failure to state a claim under FRCP 12(b)(6). ii. Rule: A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief. 1. FRCP does not require P to detail all the facts upon which he bases his claim; just a “short and plain statement of the claim” that gives D fair notice of the claim and the grounds upon which it rests. Thereafter, parties have the “liberal” opportunity for discovery. 2. If we assume that the facts stated in the claim are true, there is a legal complaint that, if proven, a jury could reasonably find for P. b. Swierkiewicz v Sorema N.A. (SCOTUS 2002) i. Facts: Hungarian at insurance company alleges discrimination in hiring of French national with lesser experience. Claim under Title VII (national origin) and the ADEA (age). D moved to dismiss. 1. Circuit and Appellate court dismissed complaint because he did not adequately allege circumstances that support a prima facie case of employment discrimination 2. Holding: SCOTUS majority opinion holds that prima facie discrimination is evidence standard at trial, not a pleading requirement. P’s complaint survives D’s motion to dismiss. ii. Rule: Affirms Conley. Justice Thomas says "a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Even an unlikely claim is okay – probability of success is not the test.

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CIVIL PROCEDURE OUTLINE 1. FRCP does not require heightened specificity. if you think FRCP rules are inadequate, then Congress should amend them. c. Under Conley and Swiekierwicz, there are two kinds of insufficient complaints. i. (1) The complaint does not supply sufficient information to allow the defendant to respond; it leaves the defendant uncertain as to what the claim is. 1. What is this? A breach of contract claim? A civil rights claim? What did I do wrong? Who is this guy? What's he talking about? ii. (2) The complaint does supply sufficient information, but it reveals that there is no recognized claim/cause of action that the allegations would support. 1. Oh, P claims intersectional discrimination against elderly Hungarians; well, the law doesn't protect against that.

d. Bell Atlantic Corp. v. Twombly (SCOTUS 2007) i. Facts: Ps, representing all subscribers of phone/internet services from 1996 to present, allege that Ds (big phone companies), in violation of Sherman Act, conspired to restrain trade. Ds move to dismiss under 12(b)(6), challenging the sufficiency of the complaint. ii. Rule: A complaint must allege facts with sufficient specificity to state a claim for relief that is plausible, & not merely conceivable, on its face. 1. A conclusory allegation of collusion via “parallel conduct” does not demonstrate illegality. Plausibility calls for enough factual contexts to raise a reasonable expectation that discovery will reveal evidence of claim. 2. Conley standard is no longer workable – possible  plausible. Needs to be conceivable & plausible – but what does plausible mean? 3. Court may be stepping in and protecting big businesses from expensive litigation that may incentivize Ds to settle too early. Or is this ruling exclusive to anti-trust litigation? e. Ashcroft v. Iqbal (SCOTUS 2009) i. Facts: P (Iqbal) is arrested after 9/11 on charges of fraud and conspiracy to defraud the US, & is detained in max-security prison in NY. P alleges conditions of his custody were unconstitutional. Accuses Ashcroft (“principal architect”) and Mueller (“instrumental”) in the implementation of a discriminatory policy based solely on “religion, race, and/or national origin.” Ds claimed qualified immunity and moved to dismiss for failure to state a claim. 1. Holding: There are more likely explanations (protecting U.S. from terrorist attack) than Ashcroft & Mueller conspiring; thus, the explanation alleged in the complaint that P was mistreated because of hatred toward Arab Muslims is not just implausible, but absurd. ii. Rule: A complaint must state sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. It is plausible when P pleads factual content that allows the Court to draw the reasonable inference that D is liable for alleged harm. Mere possibility is not enough. 1. The Court need not accept legal conclusions in the complaint as true, as it does other allegations. They need to be supported by factual 4

CIVIL PROCEDURE OUTLINE allegations. Threadbare recitals and conclusory statements do not suffice as support. 2. When there are well-pleaded factual allegations, a judge should use their common sense and judicial experience to determine whether a complaint states a plausible claim for relief. a. But, most judges are white and upper-class. 3. When there’s a more likely explanation than one suggested in the complaint, explanation offered by P is implausible. Does not have to be probable, but greater than possible. 4. This law applies to all civil cases. f. Swanson v. Citibank (7th Circuit Appellate 2010) i. Facts: Swanson (P) sues Citibank (D1), Lanier (D2), and Lanier’s employer (PCI Appraisal Services; D3) for racial discrimination and fraud as a result of being rejected for a home-equity loan. P had previously been denied a loan by other banks. After D2 appraised P’s home at $100k lower than P indicated, D1 declined to grant P a loan. P claims real reason was her race. Ds move to dismiss P’s complaint under 12(b)(6). 1. Holding: P had a valid claim against Ds for racial discrimination. She identified the type of discrimination, by whom, and when. That is all she needed to put in the complaint. This exemplifies Judge Wood applying her own judicial experience and considering the context of redlining history of Chicago. However, her fraud claim was thrown out. Swanson never alleged that she lost anything by her claim that Citibank falsely asserted that loans would be available to all when they weren't really available to African Americans. ii. Rule: Rule 9(b) requires specificity in pleading fraud, and that the allegation of fraud must be at least as plausible as other theories suggested by the complaint. Application of Twiqbal – Wood contends that these cases have not questioned the legitimacy of 8(a)(2), but only clarified standard that claim must not be founded on conclusory statements. The allegation of fraud must be at least as plausible as other theories suggested by the complaint must give enough details to present a story that holds together; it need not be probable, but possible. TAKEAWAY FROM PLEADING STANDARD EVOLUTION: In order to move forward in Federal Court by filing a complaint which is sufficient as a matter of law, the complaint must state a claim upon which relief can be granted and supply enough information that a judge, using their life experience, common sense, and judicial experience, deems the complaint “plausible. IV.

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Inconsistency and Ethical Constraints on Pleading a. McCormick v. Kopmann (IL Court of Appeals 1959) i. Facts: McCormick’s widow is the executor of the estate. She brings this complaint against Kopmann (truck operator, D1) and Anna, John and Mary Huls (bar owners, D2s). 1. Count I: P claims that D1, by driving on the wrong side of the road, was negligent, and as a result of his negligent driving, his truck struck her husband’s car and he was killed.

CIVIL PROCEDURE OUTLINE 2. Count IV: P claims that D2s provided alcohol to McCormick, and

because of this intoxication he drunkenly drove into D1’s truck. ii. Holding: P had the right to go to trial on both counts and adduce all proof she had under each. Court finds that McCormick was sober; thus D2s were not liable. Jury finds D1 liable. iii. Rule: Pursuant to 8(d)(2) & 8(d)(3), P may plead inconsistent counts in the alternative, where he is genuinely in doubt as to what the facts are and what the evidence will show. The legal sufficiency of each count presents a separate question. It is applicable even in fraud claims.

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CIVIL PROCEDURE OUTLINE SUBJECT MATTER JURISDICTION Note: State courts have concurrent jurisdiction over all cases based on federal law, unless Congress has explicitly provided for exclusive jurisdiction of the federal courts. I.

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Article III §§1-2: “The federal judicial power shall extend to all cases arising under this Constitution, the laws of the United States, and treaties made under their authority… [and] between citizens of different states…” a. Congress is otherwise given power by Constitution to ordain and establish powers to inferior courts. Federal Question Jurisdiction: 28 U.S.C. §1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States. [Far more narrow than Article III] a. Usually means created by federal law, but occasionally means created by state law if Justice Souter’s four criteria (Grable & Sons) are satisfied. Diversity Jurisdiction: 28 U.S.C. §1332: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, and is between citizens of different states. a. NOTE: No diversity SMJ in probate, divorce, child custody & alimony cases. Supplemental Jurisdiction: 28 U.S.C. §1367(a): Unless provided otherwise by federal statute, in any civil action where federal courts have original jurisdiction, federal courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Constitution. a. §1367(b): Exceptions for Diversity: In diversity cases, if (1) a claim by the Plaintiff (not defendant) against (2) parties joined under FRCP Rules 14, 19, 20, or 24 is (3) inconsistent with diversity jurisdiction under §1332 (and thus violates the principle of Strawbridge), then no SMJ. i. Under federal question jurisdiction, pendent party jurisdiction is now permitted. But under diversity jurisdiction, it is not permitted if it violates the principle of complete diversity. ii. §1367(b) does not limit claims by multiple plaintiffs joined by Rule 20 or 23; just against Defendants joined under Rule 20 (and 19, 14, 24). iii. Note: P cannot add a P2 whose presence destroys complete diversity. b. §1367(c): Other Exceptions for Supplemental Jurisdiction: The district court may decline to exercise supplemental jurisdiction over a claim if (1) it raises complex or novel issues of state law, (2) if it’s far more important than the federal claims raised, (3) if the federal claims have been dismissed, or (4) in other extraordinary circumstances. c. §1367(d): Statute of Limitations: Provides that if you have a case that is brought into federal court under 1367, and one or more claims are dismissed b/c court decides that it lacks jurisdiction, the statute of limitations is tolled so that P has at least 30 days after dismissal to refile in state court. Removal Jurisdiction: 28 U.S.C. §1441: Any civil action brought in a State court, of which the district courts have original jurisdiction, may be removed by Defendant(s) (all must agree) to the district court for the district in which such an action is pending (within certain time limits). A case cannot be removed geographically; only from state to federal court in the same area where it was filed in state court.

CIVIL PROCEDURE OUTLINE Original jurisdiction based on the existence of a federal question under §1331 I. Cases outlining §1331 federal question jurisdiction. a. Louisville & Nashville RR. Co. v. Mottley (Supreme Court, 1908) i. Facts: Ps, husband & wife from KY, sued D, railroad of KY, to compel performance of contract providing free rides for life. In 1907, D refused to renew the passes because of Congress’s act (1906) that forbade giving free transportation. P filed suit, alleging that Congress’ act does not prevent giving the passes in this case, and if it did, it is in conflict with the Fifth Amendment. ii. Rule: Well-pleaded complaint rule: A suit arises under the Constitution and laws of U.S. only when P’s statement of his own cause of action shows that it is based upon those laws/Constitution. 1. On the face of P’s complaint, stripped of anticipated defenses or other surplusage (which is unnecessary to the complaint), it’s revealed that claim arises under Constitution or US laws. 2. P may not anticipate a federal defense by D in her complaint, and use that defense as a basis for federal jurisdiction. P’s cause of action must depend on federal law. iii. Two competing views of when a claim “arises under the laws of the US” under Mottley: I. Justice Holmes’ “creation test” (dissent): If federal law created the cause of action, the federal courts have federal question SMJ. Look at the origin of the claim. II. Justice Cardozo’s “meaning and application test”: If the claim was created by state law, but requires the Court to determine the meaning of federal law or to apply federal law in order to decide the case, the federal courts have federal question SMJ. b. Merrell Dow Pharmaceuticals v. Thompson (SCOTUS 1986) i. Facts: P gave birth to a child with birth defects after taking a drug sold by D (Merrell Dow). P claimed D violated Ohio tort law by mis-describing the drug they sold as defined by the Food, Drug and Cosmetics Act. D tried to remove the case to federal court because they asserted that P’s claim was a federal question. This was a question of OH state law, but would have to apply federal act. It ...