PLEADING STANDARDS (TWIQBAL / 8a2, 8e, 9b, 12b6, 12e, 12f)

FRCP8(a)(2): Claim for Relief

● a short and plain statement of claim showing that pleader is entitled to relief.
FRCP8(e): Construing Pleadings
● pleadings must be construed to do justice.
FRCP9(b): Fraud or Mistake
● fraud or mistake, must state with particularity the circumstances constituting fraud or mistake
● malice, intent, knowledge and other conditions of mind may be alleged generally
○ (issue came up in Iqbal with allegations of fraud--more information was needed to be
able to claim it)
TEST TIP: (Special Matter): make sure that nay “special matter” is pleaded with particularity. If not, the
defendant can motion for a more definite statement
ASHCROFT v. IQBAL: pleading was insufficient / narrow question:
● did respondent plead factual matter that, if taken true, states a claim that petitioners deprived him
of constitutional rights?
TEST TIP: narrow pleading standard, harder to get on facts to remedies line
● broader pleading standard, possibility of more frivolous claims
● must weigh pros and cons of changing pleading standards.

FRCP12(b)(6): Failure to State a Claim Upon Which Relief Can Be Granted (Analysis)
TEST TIP: consider COA by COA, element by element…
Category I: Does the complaint state a claim the law recognizes? (cognizability)
● person files a complaint that is an interesting story but not much else / not a cognizable claim.
Category II: Does the complaint have enough factual detail to support the COA?(Specificity)
● 1. line by line remove:
○ (1) conclusory statements - judges use experience and common sense / specific and seem
impossible (lack plausibility) / how much assuming is happening? (the driver was driving
fast + reckless - more plausible and easier to prove / the driver was sleepy - less plausible
and more difficult to prove / aliens caused the crash - much less plausible and very
difficult to prove);
○ (2) boilerplate - are they just reciting the elements of the COA?;
○ (3) bald assertions - No real use of evidence / adding truth where none exists.
● 2. consider what is left: is this plausible?
● 3. is the case more likely the result of a legal answer than illegal activity?
BELL ATLANTIC CORP. v. TWOMBLY: case dismissed for implausibility
● justices felt action could be explained without breaking law
● very detailed complaint against telephone companies where the Δs were alleged to be in
collusion of anti-trust laws
● called for a flexible plausibility standard
● pleader must demonstrate claim with factual allegations where allegations needed to make claim
plausible
● if greater claims, need to show more.

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Category III: Is this pleading self-refuting?
● facts alleged inconsistent with COA
● looks at face of complaint
● theory made impossible by the facts.

FRCP12(e): Motion for a More Definite Statement

● party moves for more definite statement of a pleading because previous pleading is too vague or
ambiguous
● party cannot prepare a response (made prior to response)
● must point out defects complained of and details desired.
● Bowers

FRCP12(f): Motion to Strike

● court may strike from pleading an insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter
● court may act on own or on motion.

TEST TIP: DO NOT mention evidence or “questions of proof” / wrong inquiry / focus only on
allegations in complaint and reasonable inferences from it / no info from outside complaint.
TEST TIP: can dismiss with prejudice or w/out prejudice (can replead)

Time Table 12(a)

Complaint: filing of the complaint usually occurs before it is served. Service must then normally occur
within 120 days Rule 4(m)

Answer: the answer must be served within 21 days after service of the complaint except
o different state rule
o rule 12 motion
o D has 10 days after the court denies the motion to answer
o Waiver of formal service 4(d). then he gets 60 days to answer running from the date request for
waiver was sent by

Reply to counterclaim: if the answer contains a counterclaim. P must serve his reply within 21 days
TEST TIP: anything that isn’t denied is deemed admitted

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 ANSWERS / DEFENSES / PARTY of INTEREST / NAME (6, 8b, 8b5, 8c, 10, 17, 55)

FRCP8(b): Defenses; Admissions and Denials

● P numbers each allegation. D responds to each allegation
● admit, deny, deny in part, or state lack of knowledge to form a belief
TEST TIP: if you admit an allegation then it stays with you throughout the trial
TEST TIP: anything that isn’t denied is deemed admitted
FRCP12(h): Waiving Certain Defenses / if do not assert FRCP12(b)(2),(3),(4),(5) in the initial answer,
waived.
FRCP8(b)(5): Lacking Knowledge or Information
● a party that lacks knowledge or information sufficient to form a belief about the truth of an
allegation must state this, and the statement has the effect of a denial (useful for getting out of
accepting everything if there is wiggle room to claim you “don’t know”)
TEST TIP: useful for bonus points if you don’t want to fully accept a fact. Don’t admit more than you
have to.
FRCP8(c): Affirmative Defenses
● in answer, must affirmatively state any avoidance or affirmative defense including: assumption of
risk, contributory negligence, duress, estoppel, fraud, illegality, license, release, statute of frauds,
statute of limitations, waiver, (others)…
TEST TIP: affirmative defenses about avoiding responsibility. “even if all true, D cannot be found
liable.”
FRCP55: Default Judgment
● D must respond within 21 days / if not, a default judgment is entered.
FRCP6:
● Computing and Extending Time to determine days served, see rule... deadlines very important in
law!
TEST TIP: within 21 days, D can file FRCP8(b), FRCP12(b)(6), FRCP12(e), or FRCP12(f)…
FRCP17: Real Party in Interest
● two part question:
○ (1) whom does substantive law give this COA?;
○ (2) does individual (or group of individuals) have capacity to sue? (are they the “real
party in interest” + possess capacity to sue)
TEST TIP: watch for juveniles or churches (other groups who may not necessarily be a competent
party). May not be able to answer on exam, but raise the question…

FRCP10: Form of Pleadings

● complaint must name all the parties…
TEST TIP: may allow anonymous plaintiffs by generality of the word “name” / anonymous Ps allow
additional access to facts to remedies line by shielding ID of P from public / procedural rules balanced
against substantive rights (privacy).

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 Rule 11 Sanctions
FRCP 11: Sanctions
● identify a violation 11(b) (be able to point to which part in particular)
○ representations are not being done for improper purpose
■ (1) harass;
■ (2) cause unnecessary delay; or
■ (3) needlessly increase the cost of litigation.
○ claims, defenses, or other legal contentions are:
■ (1) warranted by existing law;
■ (2) a non-frivolous argument for extending, modifying, or reversing existing law;
or
■ (3) for establishing new law.
○ factual contentions have evidentiary support or will likely have evidentiary support.
○ denials or factual contentions are warranted on the evidence or reasonably based on
belief or a lack of information.
○ if you are filing a claim, consider what is known for sure and what is alleged or
speculated.
○ if other party is filing the claim, consider if they are able to.
● notify the other party under Safe Harbor (give party 21 days to fix the problem)
● if there is no correction or withdrawal after 21 days, then move for sanctions
● courts can impose sanctions without the other party filing a motion for them, so be aware of that
● possibly consider in accordance to Rule 8(b)(5) Lacking Knowledge or Information
○ a party that lacks knowledge or information sufficient to form a belief about the truth of
an allegation must state this, and the statement has the effect of a denial (useful for
getting out of accepting everything if there is wiggle room to claim you “don’t know”)

Test Tips:
★ attorney is certifying each allegation in every document AFTER A REASONABLE INQUIRY /
certification is an ongoing duty
○ If things change, file an amendment starting (FRCP15).
★ whoever is creating paperwork is the one who signs it
○ (complaint / π attorney; answer / Δ attorney)
★ FRCP11 DOES NOT apply to discovery (own rules for sanctions).
★ understand it’s your reputation on the line, not your clients.
★ “when imposing a sanction must describe the sanctioned conduct and explain the basis for the
sanction” 11(c)(6)
★ limits on monetary sanctions / no monetary sanctions for above violations
★ useful for bonus points if you don’t want to fully accept a fact / don’t admit more than you have
to

Motion to Dismiss

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 12(b)
I. Seven motions to dismiss
1. lack of subject-matter jurisdiction: (use anytime even on appeal)
2. lack of personal jurisdiction: (waived if not raised in motion or answer, whichever comes
first) (if you don’t raise 12 (b)(2) in your first filing its waived)
3. improper venue: (waived if not raised in motion or answer, whichever comes first)
4. insufficient process: (waived if not raised in motion or answer, whichever comes first)
5. insufficient service of process: (waived if not raised in motion or answer, whichever
comes first)
6. failure to state a claim upon which relief can be granted (before or during trial)
7. failure to join a party under rule 19

12(h) Waiving and Preserving Certain Defenses: will waive defenses of 12(b)(2)-(5) if not raised in
first filing.
2: Lack of PJ (defendant by defendant)
3: Improper venue
4: Insufficient Process(defendant by defendant)
5: Insufficient service of process(COA by COA)
TEST TIP: remember if D brings a 12(b) motion of any sort, and doesn’t include the defenses of PJ, improper
service, or improper venue, he waives these defenses
Answers
1. Admissions and denials to the claims in the plaintiff's complaint (21 days)
2. Rule 8(b) - What you can admit or deny, as well as exceptions
3. 12(b) defenses
4. Rule 8(c) Affirmative defenses (They did it … doesn’t matter: statue of limitations, waiver,
contributor negligence) – there are 18 examples.
5. Counterclaims and cross-claims

Joinder of Claims, Parties & Third Parties

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 Rule 13, 14, 18, 19, 20, 21, 42
FRCP 13(a): Compulsory Counterclaims
● Between Defendant + Plaintiff
● Must ARO same T+ O
● Must assert immediately (or else it’s waived)
FRCP 13(b): Permissive Counterclaims
● Between Defendant + Plaintiff
● same T + O unnecessary
● plaintiff can assert a permissive counterclaim, anything goes but Rule 42 (the court has discretion
to consolidate)
FRCP 13(g): Crossclaim
● claim between defendants
● Defendant may join additional defendants for crossclaim
● must ARO the same T + O
● never have to assert crossclaim (“not compulsory”)

Test Tip: MUST join related claims (or lose ability to assert later); MAY join unrelated claims
FRCP 18: Joinder of claims
● a party asserting a claim, counterclaim, crossclaim or third party claim may join as independent
or alternative claims, as many claims as it has against an opposing party (anything goes)
FRCP 19: Required joinder of parties
● in their absence, the court cannot complete claim among existing parties. (19a → Necessary; 19b
→ indispensable)
● start with 19(a)
○ sometimes A is seeking relief from B that B cannot relieve until X is joined
■ can’t add X just to get the full monetary relief for plaintiff
■ it could be for specific performance
● 19(b)
○ see handout
FRCP 21:Misjoinder
● not a reason to dismiss
● COAs will be severed
FRCP 42: (a) Consolidation; (b) Separate Trials
● court may consolidate or separate any claim for the sake of convenience, to avoid prejudice, or
expedite and economize the trial
● if separate, must preserve the federal right to jury

Trial/ Jury Instructions/ Verdict

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FRCP41: Dismissal / two types:
● (1) voluntary dismissal (may be done for any reason and w/o prejudice the first time); and
● (2) involuntary dismissal (a FRCP12b motion to dismiss for lack of personal jurisdiction, lack of
subject matter jurisdiction, improper venue, etc.)

Bifurcation; Trifurcation (usually suggested by Defendant)

● separating case into multiple parts
● must balance narrative vs. precision (is it better to solve the case all at once or separate into states
and decide damages later?)
● may separate down into elements and party must pass each state to move onto next stage.
 Good if one particular element is strong (if π loses then they cannot be heard for
the damages associated)
 Good if you need jury instructions specifically for one element
 Good for the ∆ because a deformed/injured child will not be allowed in the
courtroom for part of the trial, preventing the jury from seeing and using their
emotions to decide

Jury Instructions
● P and D must request judge to use specific instructions and judges add to patterend jury
instructions (standard issue)
● counsel requests that certain definitions of COA be explained.

General Verdict 49
● jury states “who wins”
● jury applies law to facts and finds legal result of each claim
● does not state how resolved specific facts (like a special verdict)
● w/ multiple claims or parties, jury may have to deliver multiple general verdicts
FRCP49(a): Special Verdict
● special verdict asks jury to answer specific questions / may include mixed questions of fact or law
● court must supply jury with legal instructions to answer questions
● must request a special verdict.
FRCP49(b): General Verdict w/ Written Questions
combines ultimate legal conclusions of general verdict with specific questions of special verdict.

Rule 60 – Vacating Judgments/Relief from a Judgment or Order

o 60(a) – corrections based on clerical mistakes
o 60(b) – grounds for relief from a final judgment: two categories
 categories 1-3 have to be made within one year
 1. Mistake, inadvertence, surprise, or excusable neglect
 2. Newly discovered evidence that could not have been discovered in time to move for a new trial
(must exist at time of trial and would have changed the outcome)
 3. Fraud, misrepresentation, or misconduct by an opposing party
 categories 4-6 reasonable time for motion
 4. The judgment is void
 5. The judgment has been satisfied, released, or discharged (based on an earlier judgment)
 6. Any other reason that justifies relief
o If motion can fit in any/multiple, only the most specific one applies
Rule 55 – Default Judgment
Summary Judgment

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 Rule 56

56(a) The court may grant summary judgment if the moving party can show:
1. There is no genuine dispute on a material fact; and
2. Entitled to judgment as a matter of law.
a. the judge can simply rule on questions of law without a trial.
56(b) Time to File
1. SJ can be filed anytime until 30 days after the close of discovery
56(d) When Facts are unavailable
1. if nonmoving party states it cannot present facts essential to survive a motion for summary
judgment, the court may:
a. defer considering the motion or deny it OR
b. allow time to obtain further discovery OR
c. may issue any other appropriate order
Summary Judgment Cases:
Adickes v. S.H. Kress & Co. (1970): White teacher with black students was denied service at a restaurant.
Court wanted the defendant to prove the police officer was not in the restaurant and that there was not a
conspiracy (proved the negative).
● High burden on the defendant
Celotex Corp. v. Catrett (1986): Catrett sued claiming that her husband died from exposure to the
manufacturers’ asbestos. Celotex motioned for summary judgment on the ground that Catrett failed to
present any evidence showing that her husband had been exposed to Celotex’s products.
● Court lowered the burden to only having to show the absence of evidence.
● Affidavits are not necessary to support a motion for summary judgment.
Matsushita Elec. Industrial Co. v. Zenith Radio Corp. (1986): The court ruled that where the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.
● Zenith (P) claimed that the companies conspired to keep prices low in America and push out
American companies.
● The court did not find the expert testimony credible and erased that evidence from the box.
○ If a reasonable jury will not believe the evidence, it should be removed from the box
Anderson v. Liberty Lobby (1986): District court granted SJ because for libel suits, Liberty Lobby(P) had
to prove actual malice, which Liberty Lobby(P) failed to do.
● Heightened burden of proof: clear and convincing standard.
Scott v. Harris (2007): Police officer (Harris) rammed the motorist’s car from behind from continuing his
public-endangering flight. Scott alleged that Harris used excessive force and violated his 4th amendment
rights. Harris claimed that he acted reasonable under the circumstances.
● Video tape was sufficient on its own to show that the police officer did not use excessive force.

Directed Verdict

Galloway v. United States (1943): See attack sheet.

Personal Jurisdiction

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  When can I make someone appear from another state, adjudicate the rights and responsibilities of
someone who resides in another state/country
 Focus on connection with forum
Traditional Framework
 Pennoyer v. Neff – The Traditional Approach
o Suit #1
 Mitchell (attorney) provides legal services to Neff; Mitchell v. Neff
 Suing to recover attorney fees to get land in the state of Oregon, from California
 CoA – breach of K
 Forum – Oregon
 ∆ didn’t receive notice, so default judgment rendered so land is sold at a
sheriff’s sale and Pennoyer purchases the property
 Neff returns from California
o Suit #2
 Neff v. Pennoyer
 Neff wins
 CoA – Trespass
 Pennoyer’s defense was that he purchased the land 9 years ago
 Turns on the legitimacy of suit #1 – Personal Jurisdiction In Rem
 Court looks at the Oregon statute
 States do not have maximum capacity – due process clause of the U.S.
Constitution mandates that no state shall deprive any person of
life/liberty/property interest with out due process of the law
o If a state violates this, then it does not need to be followed
 Hess (MA) v. Pawloski (PA)
o Car crash in MA because of ∆s negligence
o Forum – MA
o If you cause injury in another state you consent to jurisdiction
o Direct challenge
 Challenge directly the matter of jurisdiction; have to go the court of the state where the
issue occurred/state looking at the suit
o Collateral attack
 Personal jurisdiction challenge came up in a collateral (another) proceeding; suit to suit
o Non-resident Motorist Act
 Harris v. Balk
o Suit #1
 Epstein (MD) v. Balk (NC)
 Forum – MD
o Harris (N.C.) – owes money to Balk in an unrelated transaction; attorney says: get your money in
wallet to MD  this strategy becomes Quasi in Rem
o Suit #2
 Happening in a collateral proceeding
 Balk v. Harris
 Doesn’t owe money because the court required ∆ to surrender the money in suit
#1
 International Shoe Co. v. State of WA
o π = state of WA
o ∆ = Intl. Shoe (MO) incorporated in (DE)
 MO is the principal place of business
 DE formality – incorporated with the laws of DE
o Forum – WA
o Unemployment comp. fund/shoe case
o Moves away from the traditional Pennoyer framework and introduces a new framework

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Direct Attack / Collateral Attack
● direct attack: Δ challenges PJ in initial complaint (FRCP12(b)(2)); D makes a “special
appearance”…
○ advantages: safer option; do not waive merits of initial complaint; NO PJ, court will
dismiss w/o prejudice; π must file elsewhere.
● collateral attack: Δ cannot challenge PJ in initial complaint;
○ Δ does not show up → default judgment for π (FRCP55);
○ π files second complaint in Δ ‘s home state to collect;
○ Δ seeks procedural dismissal for lack of PJ ( NO FRCP12(b)(2)).
■ advantages: Δ does not travel to foreign state; expense saved; Δ may have better
result in home state; π may abandon complaint or collect.

Jurisdictional Discovery
● jurisdictional discovery: when Δ raises a FRCP12(b)(2), π requests time to discovery PJ of Δ
○ interrogatories, depositions and document exchanges / requests cannot detract from
future discovery requests / may be denied by court.
● why D resists jurisdictional discovery… π has a weak claim and discovery would be a waste of
time and resources.
TEST TIP: no rule for jurisdictional discovery / π must raise as a motion/ “motion for jurisdictional
discovery.

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