· Describing and testing the plaintiff’s claim (specificity)
o Specificity
§ Rule 8(a)(1) – short and plain statement of the grounds for court’s jurisdiction
§ Rule 8(a)(2) – short and plain statement of the claim showing that pleader is entitled to relief
§ Rule 8(e) – pleading to be concise and direct; consistency
§ Rule 12(e) – motion for a more definite statement
· Defense objection
· Ordinarily restricted to situations were a pleading suffers from “unintelligibility rather than the want of detail.” (U.S. v. Board of Harbor Commissioners)
· Should not be used as a motion to dismiss
o Shouldn’t use motion simply to disprove other party’s case, “unless the movant shows that there actually is a substantial threshold question that may be dispositive, such as a critical date.”
§ Rule 12(f) – motion to strike
· Authorization to strike portions of pleading that are “redundant, immaterial, impertinent, or scandalous”
o Can be used to attack insufficient defense or part of prayer for relief that is not justified by law
§ Rule 9 – pleading special matters
· Certain issues require more specificity
o Consistency and honesty in pleading
§ Inconsistent pleadings – McCormick v. Kopmann, p. 139
· Though mutually exclusive in terms of relief, does not necessarily mean that cannot be pleaded together
o “The theory is that on the trial the proof will determine on which set of facts, if any, the plaintiff is entitled to recover.”
o Rule 8(e)(2)
· Should not be allowed “when in the nature of things the pleader must know which of the inconsistent averments is true and which is false.”
· Alternative pleadings seeking relief for same harm
o Certification by signing – Rule 11
§ Zuk v. Eastern Pennsylvania . . ., p. 143
§ Signature requirement – applies to person who signs the document submitted to the court and authorizes sanctions. Applies to all papers filed in court except discovery
§ Factual inquiry – calls for “objective” and reasonable inquiry into facts of case
· Luck doesn’t count! If one files a suit without first making reasonable inquiry and later discovery shows that he was correct in filing the lawsuit, it doesn’t excuse.
· Sometimes may be forced to “act at their own peril” in order to preserve a statute of limitations, etc.
o What if defense witnesses won’t comply?
· Deviousness of clients
· SOL only applies if defendant raises it
§ Legal inquiry – needs to obviously know the law well enough to file the lawsuit
§ Harassment – sanctions also warranted for actions that harass or needlessly increase the cost of litigation
· If an initial complaint passes the test of non-frivolousness, its filing does not constitute harassment for the purposes of Rule 11.
§ Later advocated – sanction may be imposed on a lawyer for “later advocating” a position taken in a paper even though no violation occurred when that paper was filed
§ Safe harbor – explained in Zuk
· Only if violator has been warned and invited to desist
· District judge may impose sanctions sua sponte (on its own motion) without an opportunity to withdraw the claim only if it finds that the lawyer acted in bad faith
· Courts have generally been vigorous in applying the safe harbor requirement
§ Other grounds for sanctions
· Federal courts have “inherent power” to sanction a litigant for bad-faith conduct that has not been displaced by the more specific provisions of Rule 11 and §1927
§ Victims of such misconduct also have option of suing lawyers
· Amendments to Rule 11
o 1983 amendment à strengthened rule’s provisions
§ Many complained that it resulted in too much sanctions activity and deterred litigants from dropping weak contentions for fear of sanctions
§ Mandatory nature of sanctions
§ Inclination to use it as a fee-shifting device to compensate victims of violations
§ Impeded the assertion of civil rights claims
o 1993 amendment
§ Discretionary imposition of sanctions
§ “Safe harbor” rule
§ Reoriented aim of sanctions from reward to deterrence
o Implications for functioning of adversary process
§ If sanctions are too severe, lawyers may be deterred from making legitimate submissions for fear of sanctions
§ If too lenient, lawyers may think that they can get away with more
o Legal sufficiency of plaintiff’s claim
§ Rule 12(b)(6) – motion to dismiss on the grounds of failure to state a claim upon which relief can be granted
· Where the pleadings raise a contested issue of material fact, a Rule 12(b)(6) motion must be denied.
o All material facts well pleaded in the complaint must be taken as true
§ Court not required to accept legal conclusions alleged or that may be drawn from pleaded facts
· Once motion has been granted, party ruled against has option of re-drafting plea or appealing judgment
o By appealing judgment, indicates standing by original plea à relinquish opportunity to re-draft?
o Heightened requirements for specificity à rule 9
§ Justifications for requiring higher specificity in cases of mistake and fraud
· Notice – some cases may involve more complicated transactions and numerous parties so that more detail could be important in providing notice.
· Injury to reputation – fraud may be especially threatening to reputation
· Limiting in terrorem value of the suit
o Mere existence of an unresolved lawsuit has settlement value to the plaintiff “not only because of the possibility that he may prevail on the merits . . . but because of the threat of extensive discovery and disruption of normal business activities.”
§ Requiring detail is helpful in screening out lawsuits that will fail at an early point
· But how much will it help?
o “Even the most specific allegations to not establish probable cause unless they are reliable.”
§ Limits of Rule 11 in these cases
· Congress has indicated lack of reassurance on Rule 11
· PSLRA, pp. 170-172
o Requires the court to make findings about compliance with Rule 11(b) in every case and to impose sanctions on any party or attorney found to have violated the rule
o Subsequently removes safe harbor clause
o Does not change Rule 9(b), but did prescribe pleading requirements for federal securities fraud actions
o Requirements
§ Misleading statements and omissions
· “[T]he complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.”
· Requires much more specificity
§ Required state of mind – if plaintiff can only recover monetary damages on proof that defendant acted with a particular state of mind
· “[T]he complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.”
o Imposes stay of discovery pending the court’s ruling on a motion to dismiss
§ Unless court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party
o Overkill? May it prevent meritorious claims from being litigated because of its heightened specificity requirements?
o Increased settlement value because they survive heightened pre-trial requirements?
§ Cash Energy, Inc. v. Weiner
· Plaintiffs argue that Rule 8(a) requires only “short and plain statement of facts”
o However, court has found that there are exceptions to Rule 8(a)
§ Rule 9(b) – exception in allegations of fraud and mistake
§ Rule 8(f) – requires judges to exercise some degree of discretion
§ Rule 12(e) – motion for more definite statement
o Requires more than a “statement of a mere conclusion”
· Exception for fraud has been extended to a number of analogous areas where there is fear of abuse of 8(a)
o Primarily civil rights litigation
· Trend of requiring higher specificity – two reasons
o Rising cost of litigation
o Frivolous claims as impairing the “quality of justice in the system as a whole”
· Higher specificity may also be dependent upon severity of remedies
o In this case, remedies may be severe
§ Swierkiewicz v. Sorema, N.A., Supreme Court of the United States, 2002. 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1.
· Precedent was McDonnell Douglas (applied by Court of Appeals) – what plaintiff was required to allege
o Membership in a protected group
o Qualification for the job in question
o An adverse employment action
o Circumstances that support an inference of discrimination
· However, prima facie case under McDonnell Douglas was an evidentiary standard, not a pleading requirement
o Relates to employee’s burden of presenting evidence that raises an inference of discrimination
· Under a notice pleading system, “it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case.”
o Discrimination may be proved without heightened specificity
· Requirements of prima facie case were meant to be flexible
o Degree of factual specificity required of a complaint by the Federal Rules of Civil Procedure varies according to the complexity of the underlying substantive law
o Should this matter be left to legislature?
§ Heightened specificity should only be applied if Rules are amended
§ Process has become more political
o Importance of discovery
§ Appropriate method of developing the evidentiary basis for a claim
o Case management under Rule 16
§ More effort on the part of the judiciary
· The Future of Pleading Practice
o Dispute resolution model of litigation vs. public interest model
§ Public interest model – opposes viewing the court system primarily as a lever or facilitator for essentially private dispute resolution
· Any resolution of a lawsuit except by judicial decision may represent a failure of the judicial system
§ Dispute resolution – mistrust of judicial resolution
· Settlement may allow a more just result than trial
§ Which are better – pleading decisions or settlements?
§ Flaws in settlement argument
· When payment to plaintiff is based mainly on factors other than the substantive merits of the suit
o Financial burden of litigation
o Pendency of lawsuit
o Other issues in specific types of cases
§ More flexible summary judgment, in tandem with case management, seems to be more promising course
· Pre-answer motions – Rule 12
o Eight defenses under 12(b) à seven are procedural
§ 12(b)(1) – court is not empowered to exercise jurisdiction over the subject matter of the suit
§ 12(b)(2) – court lacks personal jurisdiction over the defendant
§ 12(b)(3) – particular court is not the proper location (venue) for the suit
§ 12(b)(4) and 12(b)(5) – circumstances or location for servicing process were incorrect
§ 12(b)(6) – failure to state a claim upon which relief can be granted
· Only non-procedural defense
§ 12(b)(7) – suit shouldn’t go forward without a necessary party
o Effects on time period for filing responsive pleading
§ If defendant files a pre-answer motion within the 20-day period following service of the summons and complaint, deadline for filing an answer is extended.
· Rule 12(a)(1)
§ If motion is denied or disposition postponed, defendant has until 10 days after notice of the court’s action to file an answer.
§ If motion is granted, plaintiff will usually be granted leave to amend—starting the process over—or the suit will be dismissed.
· However, if motion for more definite statement is granted, defendant has until 10 days after service of amended complaint to file his answer.
o Consolidation and waiver provisions
§ 12(g) – if a party makes a pre-answer motion, but omits one of the Rule 12 defenses available, cannot make any further pre-answer motions
§ 12(h) – waiving certain defenses
· Four disfavored defenses – lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process
o Will be waived forever if omitted from a pre-answer motion or, if no motion is made, from the answer
o Can’t bring it up in an answer if you’ve omitted it from a pre-answer motion
· Three favored defenses – failure to state a claim upon which relief can be granted, failure to join an indispensable party, and failure to state a legal defense to a claim
o Can be made in any pleading permitted or ordered under 7(a)
§ Answer
§ Reply
o By motion for judgment on the pleadings
§ Under 12(c), motion that asks judge to make judgment on the pleadings (complaint, answer, reply)
o At trial on the merits
· Most favored defense – lack of jurisdiction on the subject matter
o Can be made at any time
o Some advantages for raising defenses in a pre-answer motion
§ Extension of time to file an answer
§ Weakens plaintiff’s case earlier
o Advantages to raising defenses in an answer rather than a pre-answer motion?
o Rule 12(d) – any party can insist on determination before trial of any defenses specified in 12(b), even if they are only raised in the answer
· Failure to Respond (Default)
o Rule 55(c) – “good reason” clause
§ Only set aside default for good cause
§ Discretion left to the judge
§ Factors to consider
· Whether plaintiff will be prejudiced
· Whether defendant has a meritorious defense
· Whether culpability of defendant led to the default (Shepard Claims Services, Inc. v. William Darrah & Associates)
o “Willful conduct” under United Coin precedent à intent or reckless disregard
o Difference in applications between 55(c) and 60(b)
§ 60(b) applies once default judgment has been entered
§ “A default can be set aside under rule 55(c) for “good cause shown,” but a default that has become final as a judgment can be set aside only under the stricter rule 60(b) standards for setting aside final, appealable order.”