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What does a D file to challenge the sufficiency of a complaint? Discuss what is allowed in this document.
A motion to dismiss under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. Challenging the complaint on it's FACE.
- all facts in the complaint must be assumed to be true "assumption of truth", but remember the plausability standard says to through out bare legal assertions. then use the remaining facts to determine plausibility.
- a D cannot challenge factual allegations of the P or offer an explanation or defense of his own actions
- argument is limited to challenging the sufficiency of the allegations in the complaint, otherwise referring to meeting the criteria of "short and plain statement"
- any information that the parties offer beyond the pleadings requires the court to treat the Rule 12(b)(6) motion to dismiss as a Rule 56 motion for summary judgement (FRCP 12(d)). Some courts may provide some leniency here.
Discuss the relation back of amendments to pleadings and what rule governs this. Include issues with relating back as well as supplemental pleadings.
Amendments that raise new claims or defenses or join new parties will have to relate back to the time of the initial action commenced (filing) or else be barred by the statute of limitations.
FRCP 15(c)(1)
An amendment to a pleading relates back to the date of the original pleading when:
(A) - the law that provides the applicable statute of limitations allows relation back
{this is adding related claims}
- this has been interpreted by the Court to mean "a common core of operative facts uniting the original and newly asserted claims" (Mayle v. Felix 2005)
(B) - the amendments assert a claim or defense that arose out of the conduct, transaction or occurrence set out-or attempted to be set out-in the original pleading; OR
if the amendment is adding a party, changing the name of a party or changing a party, must meet part (B) and (C)(i-ii)
(C) - **MISTAKE**
the amendment changes the party or the naming of the party against whom a claim is asserted within the period provided by Rule 4(m) [meaning within 120 days of date of the filing] for serving of the summons and complaint and the party to be brought in by amendment
- i. received such notice of the action that it will not be prejudiced in the defending on the merits; AND
- ii. knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
**Remember, the proper inquiry is not the P's knowledge but whether the prospective DEFANDANT knew or should have known that, absent some mistake, the action would have been brought against him. A P can know a party exists and still make an innocent mistake with respect to the party's identity.
A movant's delay or dilatory motive may be appropriate for the trial court to weigh in deciding whether to grant leave to amend, however it "has no bearing on whether the amended complaint relates back". If the trial court has exercised its discretion and determined that leave to amend should be granted, relation back under Rule 15(c)(1) is mandatory if the rule's requirements are met.
However, a mistaken name in a complaint does not permit a P to replace "unknown parties" with the actual parties.
Supplemental Pleadings (FRCP 15(d)):
Supplemental filings pertain to matters that arise after the complaint has been filed, as opposed to amendments, which pertain to changes that reflect pre-filing information. An obvious use of supplemental pleadings is when the Ps injuries do not become manifest until after the complaint is filed. The court may order a response within a specified time.
This motion must be brought right away. The D is claiming that the complaint is "so vague or ambiguous that the party cannot reasonably prepare a response". It must point out the defects complained of and details desired.
Motions such as these are generally disfavored but will occasionally be granted.
This Rule 12(e) motion must be brought before the D responds to the pleading.
Discuss processes for responding to complaints for defendants.
FRCP 12(a)(1)(A) - Once served, must respond within 21 days of service (or may be longer if service was waived pursuant to FRCP 4(d)).
Two main options to respond:
1. File one or several motions under Rule 12 raising various legal defenses that highlight defects in the plaintiff's action, rather than addressing the merits on the P's allegations. (dispositive motions)
- this will also extend the deadline to file an answer if filed within the 21 day deadline. Litigation will be in a holding pattern.
If it is denied, D must file an answer within 14 days of the court action. (FRCP 12(a)(4)(A))
If granted, the plaintiff is usually granted leave to amend (dismissed without prejudice).
- all Rule 12(b) motions must be heard prior to trial (FRCP 12(i))
2. File an answer, in which the D responds to specific allegations contained in the complaint.
The demand for relief sought is also known as what? Discuss other facts regarding this.
"Prayer for relief" or "ad damnum clause"
- this caps the amount of damages that may be recovered pursuant to a default judgement
- Ps may collect more than the amount that they sought in the prayer for relief if the evidence supports an increase
- Special damages (or those unusual for the type of claim) must be specifically stated.
List the three basic elements of an answer filed by the defendant.
2. Affirmative defenses (FRCP 8(c))
3. Claims against the P or other parties (counter or cross claims)
Discuss the details of legal and factual sufficiency of a complaint.
FRCP 8(a)(2) requires the complaint be both legally and factually sufficient, or it can be dismissed under a FRCP 12(b)(6) motion.
Legal:
The P's allegations, even if true, do not plead the necessary element(s) of the plaintiff's claims.
Factual:
Plausibility standard is met from Twombly and Iqbal cases.
Discuss briefly the history of pleading and what the FRCP attempted to do for pleading at its creation.
Historically there were 2 types of pleading.
Common law - where Ps had to fit their claims into certain forms of action
Code pleading - where Ps had to plead facts required.
FRCP attempted to combine the best parts of both systems. Created in 1938, the FRCP
- abolished the forms of action
- no longer required the pleading of facts
- pleading was solely concerned with providing notice to the parties of the claims/defenses in the case
- preferred disposition of civil cases is not on the merits by jury trial, or bench trial depending on the type of action brought, after the chance for discovery. Generalized pleading was key.
Discuss admissions and denials of allegations as defenses. Include improper denials and affirmative defenses.
Located in 8(b).
- (2): respond to the substance of the allegation
- (3): general and specific denials -- if in good faith denying all allegations and jurisdictional/venue grounds, can submit general denial. Otherwise, if you do not intend to do so must either specifically deny all designated allegations or generally deny all except those specifically admitted.
- (4): can deny in part and admit in part
- (5): can deny for lacking knowledge or information sufficient to form a belief, effect of a denial.
- if this defense is used, the D must be the one who lacks the knowledge, not simply the attorney. Lawyers must check with their clients when drafting.
- (6): an allegation is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
**Remember, where a D admits an allegation (or properly fails to deny it) IT IS TAKEN AS TRUE for the purposes of litigation. Whether or not it is actually true in the real world.
Improper denials:
A D may not state that they "neither admit nor deny" - this is a non-response and is counted as an admission.
You may include objections to the allegations, but an admission or denial must accompany it or the allegations in the specific paragraph would be unanswered and deemed admitted.
"Negative pregnant" and "conjunctive" denials also should be avoided if possible.
Affirmative defenses: FRCP 8(c)
- Those that admit allegations in the complaint but suggest another reason why there should be no right of recovery.
- Those that concern allegations outside of the Ps case, and thus cannot be raised by a denial.
- Failure to plead an affirmative defense in the answer ordinarily results in the defense being waived. Therefore, err on the side of inclusion if unsure if the matter is an affirmative defense. Pleadings can be amended if one is mistakenly forgotten (or anything else in an answer is). This is guided by rule 15.
- A non-exhaustive list is included in Rule 8(c), others include the following:
-- accord and satisfaction
-- arbitration and award
-- assumption of the risk
-- contributory negligence
-- duress
-- estoppel
-- failure of consideration
-- fraud
-- illegality
-- injury by fellow servant
-- laches
-- license
-- payment
-- release
-- res judicata
-- statute of frauds
-- statute of limitations
-- waiver
Yes. According to FRCP 8(d)(2).
"A party may set out 2 or more statements of a claim or defense alternatively or hypothetically... If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient."
FRCP 8(d)(3)
"A party may state as many separate claims or defenses as it has, regardless of consistency"
These abilities are subject to FRCP 11, which prohibits untruthful or baseless claims.
What rule guides the amending of pleadings? Discuss amending as of course as well as by leave of court, including time limits, factors to consider for denying motions to amend, and amendments during and after trial.
FRCP 15
As of course/by right: may amend
1. once as of right without permission of the court no later than 21 days after serving the pleading OR
2. if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading (ie. a defendant's answer) or 21 days after service of a motion under Rule 12(b), (e), or (f) - whichever is EARLIER.
By leave of court: may amend
1. only with the opposing party's written consent OR2. with the court's leave (permission).
However, Rule 15(a)(2) states that the court should freely give leave when justice so requires - a liberal standard UNLESS the opposing party presents some substantial reason not to allow them (ie. prejudice). An appellate court reviews decisions to grant/deny leave to amend for abuse of discretion (the greatest deference given to trial court decisions).
1. Substantial prejudice
2. Should the new claims of such a nature that they should've been included in the original complaint?
3. Does the amendment appear to be a legally insufficient claim? Could mean is it barred by SOL?
4. Have there been other opportunities for the party to amend its complaint and it failed to do so even though it was available?
Amendments during and after trial:
When an issue is not raised by the pleadings but is tried by the parties' express or implied consent (without objection as to claim not pleaded in the complaint) during trial, that claim is treated as though it were raised in the complaint. (Rule 15(b)(2)).Even if a party objects as to a claim not being in the original pleading, a court should freely permit an amending if it aids in the presentation of the merits and the objecting party fails to satisfy the court that the evidence would prejudice their action/defense on the merits. (Rule 15(b)(1)).
once all pleadings are in place (P has filed complaint, D has filed an answer), either party may file a Rule 12(c) motion arguing the information contained on the face of the pleadings entitles it to judgement as a matter of law.
This may be appropriate when the defendant raises a defense in the answer that, even if true, does not excuse the conduct alleged in the complaint.
These motions have to be heard pre-trial and must be brought early enough not to delay trial.
Discuss assertions of claims in an answer.
There is an option for assertion of affirmative claims against the P in an answer by the D. These are counter claims and governed by Rule 13.
The P then becomes the D against those counter claims. They will have the right to file an answer admitting/denying the allegations as well as raising affirmative defenses to them. The P/original D would then file a reply to respond to these defenses.
The original P/D to counter claims is under no obligation to file a reply and generally must obtain leave of court to do so (Rule 7(a)(7)).
Discuss the "Twiqbal" decisions and how they impact a complaint.
Previously, factual sufficiency of the complaint was determined to be based on Conley's "no set of facts" language. The requirement was that the D be put on notice of the claims and what grounds they rested on. A complaint was only insufficient if it appeared beyond doubt that the P could prove "no set of facts" in support of his claim that would entitle him to relief. This was a LIBERAL pleading standard.
Twombly rules that the phrase FRCP 8(a) requires is "the need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief'". The court also retires the "no set of facts" standard. Plaintiff's must nudge their claims from conceivable to plausible or their complaint will be dismissed.
Iqbal takes it one step further and clarifies that for any complaint to survive a motion to dismiss, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on it's face'". Court says that accepting all facts as true does not apply to bare legal conclusions/assertions. They develop a two prong test for factual sufficiency of a complaint.
1. Determine which allegations are merely legal conclusions unsupported by any factual allegations.
- Those that are bare legal assertions are not well-pleaded and are "not entitled to the assumption of truth".
2. Review the remaining "well-pleaded, nonconclusory factual allegation[s]" and determine whether they plausibly state a claim for relief.
If so, deny the motion to dismiss.
If not, grant it.
**The flexible plausibility standard requires the amplification of the claim with factual allegations to allow the court to draw the reasonable inference that the P is entitled to relief.
Discuss the defense motions located under FRCP 12(b) with their corresponding numbers, including when they may/must be raised.
12(b)(1) - lack of subject matter jurisdiction (can be raised at any time)
12(b)(2) - lack of personal jurisdiction
12(b)(3) - lack of venue
12(b)(4) - insufficient process: technical defect with the summons
12(b)(5) - insufficient service of process: issue with the service of the process itself, did not comply with FRCP 4.
12(b)(6) - failure to state a claim upon which relief can be granted
12(b)(7) - failure to join a party under Rule 19
Sections 1, 2, and 3 can either be challenged facially (under facts alleged, assumed as true) or factually (under facts as they truly are, there is...)
Summary of information below:
Sections 2-5 are least favored defenses, raise them all together or in the answer.
Sections 6-7 are more favored defenses, can be raised as late as trial.
Section 1 is most favored defense, can raise at any time.
A Rule 12 motion generally may be joined with any other Rule 12 motion (FRCP 12(g)(1)).
However, "a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion".
Exceptions to this:
- FRCP 12(h)(2) - Section 6 & 7 motions don't have to be raised with others and can be filed as late as trial.
- 12(h)(3) - A Section 1 motion is never waived and whether or not it is file, a court must dismiss if it lacks SMJ.
Rule 12(h)(1) states that a party that waives any defense listed in sections 2-5 by
- either omitting it from a motion in the circumstances described above by Rule 12(g)(2) OR
- failing to either: (i) make it by motion under this rule, or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
What rule governs pleading? Discuss the relevant parts/exceptions.
FRCP 8
- 8(a) requires short and plain statement of the grounds for jurisdiction, short and plain statement of the claim showing entitlement to relief, demand for relief sought
Exceptions to notice pleading:
FRCP 9(b) - party must state with particularity when alleging fraud or mistake.
Statutes may also impose heightened pleading for private rights of action filed pursuant to those statutes.
What is a motion to strike?
The court can strike on its own or on a motion filed by a party before responding to a pleading. The motion is available if a pleading contains information that is false, non-germane, or inappropriate at the initial stage of litigation (ie. expert testimony). P can also use the motion to challenge the sufficiency of a defense raised in the D's answer.