Class 3 Notes

Consostency in Pleading:

Why do we allow inconsistency in Pleading/Rationale?
Traditional Rational:
1. Attorney might not know all the facts and we view pleadings as prelimanry sketches

The Policy appraoch Rational:
2. We want to create access to justice and we don't want to keep people out because they are unsure of the exact facts.

The Pleading complaint in Haddle strats on Page 340

Rule 8 (2) Issue:

What does the Drafting mean:
How much detail or specificity does Rule 8 required?

Connley:
Rule 8: The complaint should not be dismissed for failure to state a claim....

Letherman and serena case say that the court cannot impose a hightened standard of pleading.

Conley V. Gibson:

On what grounds does the court support It's conclusion?
1. Fair notice and griounds
2. Rule 8(e) - construed to do justice
3. Pleading - Not a game of skill
4. Decision on the merits of the case

Bell Atlantic V. Twombly: (the proper standard for pleading an antitrust conspiracy)

Issues:

• Can an antitrust claim survive a motion to dismiss when it only alleges that the monopolists engaged in certain parallel conduct unfavorable to competition, absent some factual context suggesting conspiracy or agreement to do so?
• Are there any other times besides fraud and mistake cases when complaints that conform to FRCP 8(a)(2) are insufficient?

Holding/Rule:

• An antitrust claim cannot survive a motion to dismiss when it only alleges that the monopolists engaged in certain parallel conduct unfavorable to competition, if there is no factual context suggesting conspiracy or agreement to do so.
• An antitrust claim is insufficient if it only conforms to FRCP 8(a)(2); it must include some contextual facts that make the claim plausible.

Reasoning:

• The factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.
• At the summary judgment stage, an antitrust P's offer of conspiracy evidence must tend to rule out the possibility that the Ds were acting independently.
• Something beyond the mere possibility of impropriety must be alleged so that Ps with groundless claims cannot be allowed to take up the time of other people during the discovery phase.
• Antitrust discovery is very expensive; the threat of this expense will push cost-conscious Ds to settle even weak cases.
• Conley's "no set of facts" doctrine needs to be retired and replaced.
• Nothing in the complaint intimates that the resistance to the upstarts was anything more than the natural, unilateral reaction of each D intent on keeping its regional dominance.
• If alleging parallel decisions to resist competition were enough to imply an antitrust conspiracy, pleading an antitrust violation against almost any group of competing businesses would be a sure thing.
• There is a plausible explanation for the noncompetition of the Ds -- each was sitting tight, expecting their neighbors to do the same.
• "We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the Ps have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed."

Dissent:

• The simplified notice pleading standard of the FRCP relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.
• The fact that the Sherman Act authorizes the recovery of 3x damages and attorney's fees for successful plaintiffs indicates that Congress intended to encourage private enforcement of the law. 

Haddle V. Twombly 12(B)(6) Motion:
1. Haddle the law did not provide property right.
2. Twombly the plaintiff should have included more facts
Difference: Twombly has more of a chance to replead.

Twombly failed:
1. Lack of detail
2. Conspiracy allegations - conclusory

What else could P have alleged?

Standard by which to measure the validity of claims: (stricter pleading)
Sais we need a plausibility standard?

Facts need to be more than possible and less that probable but at least plausible.

Ashcroft V. Iqbal:
Why does the supreme court takes Ashcroft?
High profile and would have grave consequences on law enforcement proceedings for government

Dissent:
What are the facts in the complaint are they a realm of the reality?

Should Rule 8 be revised?

Class 2 Notes

The Art and Science of Pleading

Notice Pleading:
1. Complaints
Guided by RCP - Include:
A. Set of facts which
B. Invoke some body of law
C. Entitling P to relief

2. Once Drafted
Filed with court
Docket Number
Serve

Pleading and Motions

Defendant responds to the complaint:
1. Rule 12 Defendant cam
A. Answer
B. Assert preliminary objections in a motion - Rule 12(b)

Defendant Must Respond:
A. Within 21 days after being served
B. Within 60 days if returned waiver (Rule 4(d)) of service
C. Within 90 days if D outside of JD of US

Challenging Pleadings

Haddle V. Garrison

Where are the Jurisdictional allegations?

Where can you find the prayer?

What's in between? Short and plain statement of the facts for articulation by counsel

What kind of legal claim is Haddle's Story? A civil rights violation

How does the Lawyer create a Civil Rights Story from Haddle being fired to get it into Federal Court? The language used in the complaint was taken out of the constitution "Retaliating and Intimidating" "Terminating due to the fact that he was a Federal Witness" Paragraph 18, 16 

Claim: Injured in Property

Defense: At-Will employee  -  

D Files Rule 12(b) 6 Motion

2 ways to file this motion

A. Insufficient facts - poor pleading

B. Claim not cognizable - doesn't exist

If the claim is not cognizable - Cannot refile.

If 12(b) 6 challenge is a factual dispute: If facts are introduced that are not part of the pleading the court may convert this into summary judgement un Rule 12(d)

Recourse for Plaintiff:

1. Appeal

2. Re-plead

Court was bound by precedant and could not solve case any other way

Court of appeals dispose the case summarily based on precedant

After losing appeal plaintiff filed a writ of Certiorari

Plaintiff is motivated and there is a possibility that being that there was a circuit split there maybe hope of the USSC taking the case.

Supreme Court:

Defendants arguement to the Supreme Court?

Supreme Court refocuses the inquiry. The Statute does not require

The Court awards him 50K based on compensatory damages.

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Whats a....

Pleading? /  Motion?

Rule 7(a)    Rule 7(b)

ADD CHART

See PP on TWEN

Class 1 Notes

Civil Litigation

Read: Rule 7(A) 1-7

Page 266, Facts:

Torts Case, Personal Injury Case:
A. The Judgment will be for the Plaintiff for a Median of 48K
C. Not many cases go to trial and case may never come to Jury Selection
D. Not many of those federal cases and only a small % of those are diversity cases
E. Normally you would be trying smaller cases.

Remedies Facts:
Car Accident Injury Case:
Lawyer would want to Know:
A. Liability
B. What the client wants
C. Is there Insurance (Deep Pockets)
D. Financial displacement of the client
E. Damages and Extent of Harm

The Next Step: Rule 8
File a Pleading: Pleading rules require the plaintiff to say what he wants the court to do for him

Rule 8(a) Called the Prayer
Damages are most common "prayer"

Damages Sought From:
A. Defendants Assets - K Cases
B. Insurance - Tort Cases
C. Self Insurance
D. Indemnifiers

Amount of Damages and what damages your seeking may shape:
A. Court selection.
B. Other Parties (deeper pockets) to be joined
C. Depth of discovery
D. Settlement Strategy
E. Number and kind of expert witnesses
F. Bench or Jury Trial
G. Likelihood of Appeal

If done with INTENT:
A. Insurance may not cover Amy for Intent
B. Could create greater Punitive Damages

Suppose Amy starts Harassing Bruce: Further relief -
A. Temporary restraining order
B. Damages for Emotional Distress

Remedy Options for Amy taking Bruce's property:
A. Specific Relief
1. Replevine

Remedy for Amy planning to take property:
A. Specific Relief
1. Injunction

Controversy over Property:
A. Specific Relief
1. Quite Title

Substitutionary VS. Specifc Relief
Relief can either be Legal or Equitable

Legal:
Damages
Ejectment
Repliven
(a regular court would have provided)

Equitable
Injuction
quiet title
constructive trust
(a chancery court would have provided)

Equitable claims are tried in a Bench trial by a judge
Under Rule 52(A) Court must issue opinion or result with detailed assessment.

Costs of Lititgation:
A. Lawyers
B. Expert and Investigators
C. Filing Fess
D. Process Servers
E. Court Reporters
F. Photocopy
G. Technology
etc.

hIBRID sYSTEM:

A. Fess for Service
B. Fess Spreading
C. Fee Shifting Statutes
D. Legal Aid, Pro-Bono, Public Interest, Philanthropy

Class Action Law Suits

Non Fee Shift Cases
A. Divorce and Child Custody.

Pleading Grow from Clients Stories.
A. Human Story
Pleading system in which you operate determines how the story gets told base on what system see as relevant

Function of Pleadings:
1. Invoke Court Jurisdiction
2. Eliminate contentions with no legal signifigance
3. Notice of facts and nature of claims to:
    A. Parties
    B. Courts

Pages 333-334 Complaints:
Approaches to Pleading:
1. Writ Technical
2. Code - Specific and Detailed; allege facts; adhere to statutes; More fact based; In Code pleading states you will see Code Forms due to required detail.
FRCP - uses - Notice Pleading
1. Less specific
2. Doesn't significantly narrow any issues for trial
3. Doesn't require a particular form

Comparing Program Pleadings:
The more specificity requires the more difficult and expensive it is to draft a complaint.
Less Specificity delays the point at which defendant/plaintiff can learn key facts

Modern Pleading (federal courts)
Rule 1.
FRCP governs process for modern pleadings.
Efficiency

Rule 2.
Creates on form of action
abolishes common law writ system (courts of law and equity can be brought in same court)

Rule 8(d) 1
Allegations simple concise and direct
no technical; pleading forms are necessary

Rule 8(e)
All pleading should be construed to do substantial justice

Rule 3
A civil action is commenced by filing an action with the court

Filing Fee:
$350
seek court permission to proceed in forma pauperis

Rule 10:
A. Caption - Name of Parties (rule 7a pleading)
B. Paragraphs should be sperately numbered
 Single set of circumstances sperate paragraphs
C. adoption by reference and exhibits

Rule 84
Forms Sufficient

Rule 7(a) Types of pleading that may filed in federal court 1-7
http://www.law.cornell.edu/rules/frcp/Rule7.htm

Rule 8(a) What is required in claim:
http://www.law.cornell.edu/rules/frcp/Rule8.htm
1. Notice pleadfing
2. Flexible
3. Low barrier to entry

The Art of a Pleading:
Minimalist?
Avoiding providing to much information
Detail and Specificity?
Educate judge etc.

Complaints:
Guide for RCP include:
1.
2.
3,

Challenging Pleading:
Rule 12 Motions challenge
Rule 8 Defenses i.e. denials