DISREGARD: Pleading Standards

What triggers pleading standards?

D files 12(b)(6), asking whether P’s complaint survives, pre-answer motions

Proper Pleading Characteristics

FRCP 8(a)(2): Short and plain statement of claim showing entitled to relief

Plausible pleading: more than possible, less than probable.

Two-Step Process for Ensuring Pleading Plausibility

1) Strike conclusory allegations (conspired, discriminated, negligently)

2) Do the remaining facts state a PLAUSIBLE claim? More than possible, less than probable. In light of judicial experience and common sense.

If YES, Survives 12(b)(6). If NO, Dismissed.

Policy for Twiqbal

Pro: Prevents costly discovery in meritless cases

Con: Creates information asymmetry. P needs discovery to prove intent, but can’t get discovery without having a plausible claim, which comes from evidence.

Con: “Judicial subjectivity” can disadvantage marginalized groups

Heightened Standard: Rule 9(b): What triggers Heightened Standard?

P’s claim is based on fraud or mistake

FRCP Rule 9(b)

Must state with PARTICULARITY the circumstances constituting fraud or mistake. - Who, What, Where, When, How.

FRCP Rule 8(a) vs 9(b): What do they apply to?

9(a): General claims (negligence, breach of K).

9(b): Fraud and Mistake only

FRCP Rule 8(a) vs 9(b): What’s the standard?

8(a): Plausibility (facially plausible)

9(b): Particularity (specific details)

FRCP Rule 8(a) and 9(b): Policy Rationale

8(a): Filter meritless claims, avoid wasteful discovery

9(b): Protect reputation; fraud carries punitive damages risk

Alternative Pleading: Rule 8(d)

P MAY assert inconsistent claims. Each must independently be plausible.

Jones v. Bock

P doesn’t have to prove that they exhausted all other remedies before filing suit. Burden is on D to prove that P hasn’t exhausted all remedies.

Hard to do since judge can only look at P’s filing, which won’t support D’s claim unless the failure to exhaust is obvious on P’s filing.

Attorney signs a frivolous paper: Result?

Rule 11 is triggered by a lawyer SIGNING and filing a pleading, written motion, or other paper with the court.

Lawyer is guaranteeing document is legitimate, making these 4 promises to court:

PFLV

(1) Proper Purpose: "I am not filing this just to harass the other side, waste time, or needlessly drive up the cost of litigation."

(2) Factual Support: "I actually have evidence to back up these facts, or I am reasonably certain I will find the evidence during discovery."

(3) Legal Basis: "The legal claims I am making are backed up by existing law, or by law that should arguably be enacted.

(4) Valid Denials: "If I am denying the other side's facts, I am doing it based on actual evidence or a genuine lack of information, not just denying it to be difficult."

Court provides offending lawyers 21 days to cure

If we get to court sanctions, they are to deter—not punish.