Rule 8: Pleading Requirements

• Pleading used to be big trap for unwary – hyper-technical requirements.  FRCP simplified the process – now pleading need only contain:
• Short and plain statement of the grounds for the court’s jx;
• Short and plain statement of the claim showing that the pleader is entitled to relief; and
• Demand for relief sought.
• (And demand for jury trial if applicable.)
• Some types of cases still have heightened pleading standards (fraud, etc.)
• PRO: Protects Ds from unnecessary litigation
• CON: Eliminates potentially good claims, makes it difficult to sue

Bell Atlantic v. Twombly (2007)

Seemed to heighten pleading requirements – we’re not sure yet

• Several cases in 2007 seemingly went back on Swierkiewicz:
• Jones v. Bock – PLRA has exhaustion requirement; exhaustion usually treated as affirmative defense; courts should not require P to plead exhaustion in complaint à unremarkable
• Erickson v. Pardus – prisoner’s allegations of deliberate indifference provided sufficient notice where he alleged he was denied HepC treatment à unremarkable
• Tellabs – PSLRA explicitly requires higher pleading for class-action complaints alleging securities fraud; heightened pleading required à unremarkable
• Bell Atlantic v. Twombly àthis was only remarkable one
• P said alleged conspiracy violates Sherman Antitrust Act – made inference from known facts that there was a conspiracy
• Case was dismissed for failure to state a claim
• Issue is whether complaint was sufficient – majority says no:
• 2 possible interpretations of the factual info but nothing to suggest it’s conspiracy over non-conspiracy
• Plus this would be big, expensive anti-trust trial (suggesting such cases should get tougher scrutiny at pleading stage

Criticisms of Twombly:

• How is it that circumstantial evidence is enough to send case to jury but not enough to get past pleading stage? Even if recovery is unlikely, complaint is still valid under Rule 8
• But the Rules should be transubstantive – consistent across the board
• Unless you’re in Rule 9, which requires some matters to be pled specifically – but employment discrimination is not among them à expressio unius principle: if not included, it’s meant to be excluded
• It’s congress’s job to change pleading requirements if they want to, not the court’s – court doesn’t get to change their interpretation of the Rules based on policy considerations
• Inconsistencies w/Swierkiewicz:
• Swierkiewicz said recovery could be remote and unlikely and still pass pleading stage – this holding says entitlement to relief must be “plausible,” not just “possible”
• Court criticized Conley as being too liberal an interpretation of Rule 8, but same court unanimously quoted it in Swierkiewicz for expressio unius principle.  Court even mentions Rule 9 as evidence of reading Rule 8 narrowly, implying it’s related to fraud – but Rule 9 was quoted in Swierkiewicz for expressio unius principle
• Between 2002 and 2007 Roberts and Alito were added, but doesn’t explain why 7 others switched sides

Filing & Serving the Complaint

• Clerk stamps summons + summons is served = complaint filed
• Due process and service:
• Determined by what’s reasonable
• If you follow provisions of Rule 4, not many challenges (these pass constitutional muster)
• But state law provisions are often subject to constitutional attack – not provided by Rule 4 (supplementary to it) à see Jones below

Rule 4: Service of Process

• Steps/Elements:
• Complete summons
• Have clerk issue summons
• Serve Ds (methods of service, special rules for certain parties)
• Waiver of service
• You can waive service (best, cheapest way)à complaint is mailed, receiving party returns notice acknowledging receipt
• Proof of service
• Harder to serve minors, mentally incompetent, a company, the government, foreign people, foreign entities, etc. à special procedures for these

Rule 12 Motions

1. Lack of subject matter jx (always the threshold question) à can be raised in or after answer – rest should be raised before answer (grounds for motion to dismiss should always be raised at beginning)
2. Lack of personal jx
3. Improper venue
4. Insufficient process (some defect in summons)
5. Insufficient service of process (Rio)
6. Failure to state a claim on which relief can be granted (Swierkiewicz)
7. Failure to join party under Rule 19

Rule 8(b): The Answer

• D must state defenses in short and plain terms
• D must admit or deny allegations
• General denial: D in good faith denies all allegations of complaint
• Rarely used – almost always something you can admit to in good faith (e.g. place of residence) – if there is and you file general denial, violates Rule 11
• Specific denial: D admits or denies each allegation in whole or in part
• Most common
• If D lacks sufficient info, he can so state and it’s treated as denial
• If D fails to deny any allegation where responsive pleading is required, it’s considered an admission

Rule 15(a): Amendment as a Matter of Course

• Liberal rules for amending pleadings (PP to resolve cases on merits):
• Can amend early as a matter of course (one time)
• Early stages
• Before being served a responsive pleading, or
• W/in 20 days of serving the pleading if responsive pleading is not allowed and action is not yet on trial calendar.

• Later stages: w/opposing party’s written consent or the court’s leave (court should freely give leave when justice so requires)

• Easier to amend complaint than answer

Rule 11: Sanctions

• Applicability:
• Any pleading, motion, or other paper submitted or advocated in court (but not discovery)
• Standards (split between 1^st and 2^nd Districts on this):
• Generally: Objective reasonableness
• Exception: Judge-initiated sanction has subjective standard
• Procedure:
• Party-initiated
• Service (not filed in court), and
• 21-day safe harbor (21 days to correct before court gets informed by Rule 11 motion
• Judge-initiated: Opportunity to show cause why sanction should not be imposed

The Requirement of Notice

• Classic method is process server – but expensive and rude
• Due process notice requirement – must be reasonably calculated to apprise parties of pendency of action and afford them opportunity to respond – provided for in:
• Rule 4 – if P complies w/Rule 4, it’s constitutionally sufficient
• Rule 4 supplemented by state procedures, some of which are constitutionally questionable à how disputes arise – to determine if DP is met, consider:
• Info P had
• Steps P took

Available alternatives, and their burden on P

Mechanics of Discovery

• Basic chronological order (might want to deviate sometimes):
• Mandatory initial disclosure (Rule 26(a)) – fairly new: requires both sides to say what evidence supports their case, damages, and insurance
• Interrogatories: written questions asking who else has info, where docs/witnesses are, etc.
• Requests for production: after you get responses to interrogatories, must get the actual docs, interview people, etc.
• Depositions (oral and written) – very expensive
• Physical and mental exams (if applicable)
• Request for admissions: if people admit things, no need to deal w/at trial
• Motions to compel and sanctions (can happen anytime in process, if needed): if other side isn’t forthcoming, engaging in discovery abuse – Rule 11 applies but there’s also separate discovery sanctions in addition
• General discovery sanction is fee in the amount your foot-dragging cost other side

Rule 26. Discovery Management

• 3/1 D is served
• 4/1 D answers
• 5/1 Parties hold discovery conference
• 5/15 Parties file discovery plan
• 5/29 Deadline for initial disclosures
• 6/1 Court holds scheduling conference
• 7/1 Scheduling order issued (now in Tier 2 sanction territory if you screw around)

• 2 main questions for the scope and limitations of discovery:

1. What is the scope of discovery – what’s fair game?

• Limited to relevant evidence, but not as limited as what’s admissible in trial à includes anything that could lead to anything relevant.
• Often gets abused – common objection is beyond the scope

2. Is it privileged?

• Can’t get privileged info, even if it’s relevant/decisive
• Most common privileges:
• Attorney/client privilege
• Work/product privilege – related to ACP, but less absolute