Claims and Defenses

Conditional Imperatives:

• “If” statements of conditional imperatives are generally elements of the claim, and “unless” statements are generally affirmative defenses to the claim

• So long as the “If” statements have a claim under substantive law (i.e., not Spencer’s wife), the plaintiff has a claim on which relief can be granted → continue to the facts, which must fit the elements → continue to the defendant’s affirmative defenses

Burdens – 3 different burdens are allocated

• Burden of pleading (concerns allegation)

  • Concerns pleading all necessary elements of a claim or affirmative defense → should an element be missing, D may file a 12(b)(6) motion to dismiss for failure to state a claim on which relief may be granted. Failure to state an affirmative defense may lead to a party losing that defense.

• Burden of production (concerns evidence)

  • A party only meets its burden of production if there is sufficient evidence in the record for a reasonable jury to find for the party with the burden of production 

  • If a party fails to meet their burden of production, the party may face a court-granted SJ (pretrial), motion for judgment as a matter of law (trial motion), or a renewed motion for judgment as a matter of law (post-trial)

• Burden of persuasion

  • Whereas the judge decides whether the burdens of pleading and production have been met, the jury decides whether the burden of persuasion has been met according to the applicable standard of proof (e.g., preponderance of the evidence—civil, clear and convincing evidence—intermediate, and beyond a reasonable doubt—criminal)

Pleadings vs Motions

• Pleadings ≠ Motions

• Pleading (Rule 7(a), pg. 31): written statements of allegations and denials that frame the dispute between the parties

• Motions (Rule 7(b), pg. 31): requests for a court order  

• Rule 11(b) (pg. 35) requires attorneys to engage in an inquiry into the law and facts before filing a pleading or motion

Gomez v. Toledo (1980)

Allocating Burdens

• Facts: Section 1983 claim, which includes 2 or 3 elements that P has the burden of pleading: (1) deprivation of a federal right; (2) under color of state law; (3) bad faith 

• Legal Issue: Does P have the burden of pleading bad faith?

• Procedural History: P filed a complaint w/ the first two elements → D filed an answer → D then filed a 12(b)(6) motion to dismiss for failure to state a claim on which relief may be granted → Court granted the motion to D

  • The 12(b)(6) motion to dismiss was technically inappropriate b/c it’s a pre-answer motion, but the 12(b)(6) defense remains available via 12(h)(2) and 12(c) motion for judgment on the pleadings, so no substantive difference 

• P’s important decision: P chose not seek leave to amend his complaint, allowed final judgment to be entered against him, and appealed per the Final Judgment Rule—you can only appeal at the end of the case 

• Holding: D has the burden of pleading lack of bad faith (good faith) as an affirmative defense in the answer, not P’s obligation to plead D’s bad faith as an element of the claim in the complaint → 4 reasons for this decision: 

1. Language of § 1983 → Bad argument b/c § 1983 was silent on this pleading issue

2. Precedent → Weak

3. Nature of the Qualified Immunity Defense/Fairness → Decent, b/c D is better suited to plead about their good intent, but subjective inquiry doesn’t automatically mean D has the burden of pleading, especially not in other claims. For example, P must plead intent in criminal cases.

4. Contrary to established practice in analogous areas of law → Decent, b/c qualified immunity has been treated as an affirmative defense, but not in negligence law

5. REALISTICALLY, POLICY/LEGISLATIVE INTENT DRIVES THE DECISION → § 1983 is meant to be interpreted generously to further its aim

• Rehnquist’s Concurrence: Agrees that the burden of pleading should lie with D, but posits that the burdens of production and persuasion may stay with P

• General Rule: The party with the burden of pleading generally also has the burdens of production and persuasion

The Complaint

• Rule 8(a) expresses that a Complaint must include:

1. A short and plain statement of the grounds for the court’s jxn, unless the court already has jxn and the claim needs no new jxnal support

2. A short and plain statement of the claim, showing that the pleader is entitled to relief (8(a)(2); Conley; Twombly; Iqbal)

3. A demand for the relief sought, which may include relief in the alternative or different types of relief

   1. Relief sought limits amount awardable in default judgment.

Conley v. Gibson (1957)

• “[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests.”

• “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”

  • Taken literally, this meant that dismissing a claim could only be done via proving “no set of facts,” which is inconsistent w/ 8(a)(2) b/c would allow the pleader to fail to include elements of the claim

  • Twombly opposed Conley by holding that allegations needed to include facts that supported each of the elements of the claim

Substantive and Formal Sufficiency

• Substantive Sufficiency: Refers to whether a claim states a claim under the substantive law (e.g., Spencer’s wife’s claim against the law school is not substantively sufficient)

• Formal Sufficiency: Requires some factual specificity, but a tension exists between strict and loose pleading standards—strict aims to avoid expenses of discovery and summary judgment by weeding out erroneous claims, whereas loose warns against weeding out meritorious claims before those claims can reach discovery.

Bell Atlantic Corp. v. Twombly (2007)

• Facts: AT&T had a near-monopoly on telephone services → Anti-trust busted the monopoly → ILECs resulted → P (class action) alleged that the ILEC violated the Sherman Antitrust Act by agreeing to engage in anti-competitive behavior

• Background: Antitrust law is clear that the mere existence of parallel conduct does not allow a fact-finder to infer an agreement. Must be evidence of parallel behavior that would probably not result from chance, coincidence, independent responses to common stimuli, or mere interdependence…” 

  • No direct evidence existed to demonstrate an anti-competitive agreement because none would testify truthfully, so P could only rely on D’s conduct to induce the fact-finder to draw an inference. 

• Legal Question: Whether P stated a valid claim or whether it was justifiable to grant a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted

• Majority: Affirmed the motion to dismiss, holding that the complaint only included legal conclusions premised on allegations of parallel conduct, though this would’ve been okay under Conley. In other words, SCOTUS held that the pleading didn’t give enough notice to D…how can D figure out whether and what they should admit or deny?  Ultimately, the majority reads in a plausibility standard to 8(a)(2).

  • Plausibility under Twombly: A complaint must have enough factual allegations to raise a reasonable expectation that discovery will reveal further evidence. Conclusory statements are insufficient for raising a reasonable expectation.

• Dissent: Agreed w/ “mere existence of parallel conduct” notion, but not the “legal conclusions” notion in the majority. 

  • Whereas the majority [mistakenly] ignores three points to conclude that the plausibility standard was not met, the dissent would have reaffirmed Conley and maintained the most plaintiff-favoring view. This reflects the formal sufficiency tension above. 

Ashcroft v. Iqbal

• Background: Bivens cause of action—federal common law analogue to § 1983 actions, providing a statutory cause of action against state officials who violate the Constitution. 

• Facts: Muslim brought suit against former attorney general and former head of FBI via Bivens cause of actual due to harsh confinement conditions → D filed 12(b)(6) motion to dismiss → TC denied motion → AC reversed → SCOTUS affirmed AC

• Majority: Clarified that Twombly not only applies to antitrust cases, but is binding in any application of 8(a)(2) in all civil actions, driven by two underlying principles: 

1. Legal conclusions are insufficient to satisfy the requirements of Rule 8(a)(2) (i.e., legal conclusions may provide a framework to understand the complaint, but must be supported by facts)

2. Plausibility requires factual allegations, and facial plausibility exists when P pleads factual content that allows the court to reasonably infer that D is liable (which ~suggests that similar standards should be in place for SJ or judgment as a matter of law motions)

• Majority con’t: Ultimately, there must be enough facts in the pleading to raise a reasonable expectation to suggest that necessary evidence will be revealed in discovery, which is a context-specific task 

Dissent: Points out the danger of opinions before an evidentiary portfolio is developed. Disagreed on the notion of conclusory allegations, suggesting that the plausibility requirement goes way beyond Conley’s fair notice idea

Impact and Takeaways of Twiqbal

• Risks restriction of access to federal courts, but don’t worry about plausibility on the test → Some states kept the no-set-of-facts rule from Conley, others adopted Twiqbal

• A formally insufficient claim (i.e., P failed to allege a claim with enough factual specificity/missing elements/conclusory allegations) and a substantively insufficient claim (i.e., a claim unrecognized by the substantive law) are both grounds upon which a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted can be granted. 

• Following Twiqbal, Rule 8(a)(2), which is what Twiqbal concerned, and Rule 9(b), which concerns the insufficiency of conclusory allegations, overlapped. However, whereas Twiqbal suggests that the “what, where, and when” are enough, Rule 9(b) seems to require a little more. 

Responding to the Complaint – Introduction

The defendant must respond to the plaintiff’s complaint in a timely manner, or they risk suffering a default judgment per Rule 55(a). The defendant may respond in one of two ways: file a pre-answer motion or file an answer.

Responding to the Complaint – Pre-Answer Motions & Rule 12(b) Defenses

• Rule 12(b) identifies 7 defenses that can be raised by a pre-answer motion: 

1. Lack of subject matter jxn

2. Lack of personal/territorial jxn

3. Improper venue

4. Insufficient process → IRRELEVANT

5. Insufficient service of process → IRRELEVANT

6. Failure to state a claim upon which relief can be granted

   1. All aside from 12(b)(6) might be appropriate to wait for evidence for a more informed motion b/c 12(b)(6) posture assumes allegations are true. 

7. Failure to join a party under Rule 19

• Two pre-answer objections (either can go on its own or along with a 12(b) pre-answer motion, but must go in a pre-answer motion):

1. 12(e) motion for a more definite statement → rare that a pleading is so ambiguous that the defendant cannot admit nor deny allegations without more information

2. 12(f) motion to strike → appropriate when evidence is only included to insult the other party 

• Vehicles: 12(b) vehicles include the pre-answer motion, pleadings, motion for judgment on the pleadings, and, in some cases, trial; the only 12(e) and 12(f) vehicle is the pre-answer motion

• Notes on Rule 12(g), (h), and (i): 

  • 12(g)(1): Any motion under Rule 12 can be joined by another Rule 12 motion

  • 12(g)(2): A party cannot bring more than one pre-answer motion. Any defenses or objections not raised in but available for inclusion in the first motion is waived unless excepted by 12(h)(2) or (3)

  • 12(h)(1): 12(b)(2)-(5) defenses are waived when omitted in any Rule 12 motion or when not included in a responsive pleading or amendment allowed under 15(a)(1)

    • Rule 15(a)(1) allows amending as a matter of course once within 21 days service of the pleading, or once within 21 days of service of a responsive pleading, or once within 21 days of service of a Rule 12(b), (e), or (f) motion

  • 12(h)(2): 12(b)(6) or (7) can be raised by more than just a pre-answer motion (i.e., in any pleading under Rule 7(a), by a Rule 12(c) motion, or at trial)

    • 12(b)(6) and (7) are favored such that they can be asserted in any pleading, motion for judgment on the pleadings, or at trial

  • 12(h)(3) provides that a motion for lack of subject matter jxn cannot be waived

    • 12(b)(1) is most favored as a result

  • 12(i) provides that any 12(b) defense in pleading or motion and a 12(c) motion must be heard and decided before trial unless the court orders a deferral until trial

Responding to the Complaint – The Answer

• An answer is a response to the plaintiff’s claim or a response to counterclaims against the plaintiff, where the only difference between claims and counterclaims is who sues first. 

• Requirements under Rule 8(b)(1)(A)-8(b)(1)(B)

  • State in short and plain terms its defenses to each claim asserted against it, and

  • Admit or deny the allegations asserted against it

• Two types of counterclaims: 

  • Compulsory: Compulsory counterclaims must be asserted in the current suit, or they are lost. A counterclaim is compulsory when it arises out of the “transaction or occurrence that is the subject matter of the opposing party’s claim.” Two exceptions to waiver of compulsory counterclaims:

    • Claim already filed in another proceeding.

    • Lack of personal jxn in the “transaction or occurence” giving rise to the counterclaim

  • Permissive: Permissive counterclaims need not be asserted. 

• Two types of defenses: 12(b) defenses and affirmative defenses. Affirmative defenses are the “unless” clauses for which the defendant has the burden of pleading. 

• Admissions and Denials: Answer must admit or deny the allegations in P’s complaint. Failure to deny is taken as admission per 8(b)(6). 

  • Two types of denials: general and specific → General denials put in issue each and every allegation of the complaint and are impermissible unless it satisfies the Rule 11(b) good faith requirements per 8(b)(3). Hence, specific denials are more common (i.e., issue with one element). 

Fuentes v. Tucker (1947)

• Facts: Car accident caused by D killed two children → D initially denied the complaint, but amended his answer to admit liability b/c he was concerned that if the jury heard how and why the accident happened, the jury would award more damages → TC still allowed the evidence → D appealed → AC agreed w/ D

• Holding: Per Federal Rule of Evidence 401(b), once a matter is admitted, it is no longer of consequence (i.e., if facts alleging the complaint are not controverted, the evidence is immaterial, and it is error to allow such evidence). In other words, evidence only demonstrating liability after D has already admitted liability is irrelevant.

• Takeaways: (1) Matters admitted by D are out of the case and are not subject to proof at trial; and (2) there may be sound tactical reasons for D to make an admission, even if they believe that they can, in good faith, deny an allegation; and (3) evidence of admitted facts is permitted when the admission is ambiguous in form, limited in scope, or a party seeks to deprive their opponent of the legitimate force and effect of material evidence

Responding to the Answer

• Rule 12(f) Motion to Strike an Insufficient Defense: 12(f) is to an affirmative defense what 12(b)(6) is to a claim—just as factual allegations are taken as true in 12(b)(6) context, 12(f) does not challenge the truth of allegations. 12(f) only evaluates whether the D’s defense is sufficient as a matter of substantive law. Courts are split on whether affirmative defenses require the same factual specificity as required in Twiqbal.

  • Lack of “entitled to” may indicate that affirmative defenses should not be held to  Twiqbal’s plausibility standard

• Replying to Affirmative Defenses: P is not required or permitted to respond to D’s affirmative defense(s) per Rule 7(a)(7). However, a court may order a reply per Rule 7(a)(7). P is only permitted to file a reply if court-ordered, which is very rare. If a reply is not required, an allegation is considered denied or avoided per Rule 8(b)(6). 

• Responding to a Counterclaim: P must assert any defenses to D’s counterclaims in his answer to the counterclaim via Rule 7(a)(3). The same rules that govern an answer to a complaint govern an answer to a counterclaim per Rule 8(a), and the same rules that govern pre-answer motions, whether dealing with claims or counterclaims, are governed by Rule 12(b) b/c the only difference between claims and counterclaims is timing. 

Motions Directed at the Pleadings — 12(b)(6), 12(f), and 12(c)

• 12(b)(6) or 12(f) more commonly attack a lack of factual specificity (formal sufficiency) b/c they are filed earlier than the 12(c) (motion for judgment on the pleadings). 12(c) can only happen after pleadings close, and the aim is to prevent discovery → All three attack formal sufficiency, however

• Exception to Exclusive Reliance on the Pleadings—Judicial Notice [FRE 201]: When a judge determines that a fact is indisputably true as a matter of public knowledge, no need to prove that fact via evidence; may be taken at the judge’s discretion or at a party’s request

• Other Pretrial Motions: Not all pretrial motions are only focused on the substantive allegations of the pleadings (e.g., 12(b)(2)), nor do all pretrial motions assume the truth of the allegations (e.g., SJ motion). The key difference is that SJ motions consider evidence, so if a 12(b)(6) motion is inappropriate, the court can (1) ignore D’s evidence and deny the motion, or (2) convert the 12(b)(6) motion to dismiss into a SJ motion per 12(d) 

Intro to Evidence

• Admissibility: Evidence is either admissible or inadmissible. If it is inadmissible, it should be excluded upon objection. 

• Types of Evidence: 

  • Witness Testimony → personal knowledge requirement if not an expert

  • Document → must be authenticated

  • Other tangible things that a jury can be shown → must be authenticated

• FRE: 

  • 602: Personal Knowledge Requirement

  • 901(a) & 901(b)(1): Authentication Requirement (i.e., testimony from the person who assembled a document to disprove forgery)

  • 401 & 402: Relevance → evidence is only admissible if it is relevant, and evidence is only relevant if (1) it has a rational tendency to make a fact more or less probable, and (2) the fact is of consequence in determining the action

Direct vs. Indirect Evidence

• Direct Evidence: The only question is whether the fact finder believes the evidence 

• Indirect/Circumstantial Evidence: The two questions are whether an inference can be made based on the evidence, and whether the fact finder believes the evidence 

  • A fact finder does not have to credit direct over indirect evidence

  • Whether something qualifies as direct or indirect evidence depends on context (i.e., what needs to be proven)

Hearsay

• FRE 801(a)-(c): 

  • Statement: a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion

  • Declarant: the person who made the statement

  • Hearsay: a statement that the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement (e.g., “She told me…”)

• FRE 802: Provides that exceptions to the hearsay rule exist per statutes, FRE, or SCOTUS (i.e., just because something is hearsay, it does not immediately mean that it is inadmissible)

  • FRE 801(d)(2)(A) & (D) is the biggest exception: ‘Admission of a party opponent’ is not treated as hearsay b/c a party can introduce any statement made by his or her opponent without running afoul of the hearsay rule 

  • However, Cf. FRE 805 reveals the “Multiple Statement Problem,” which provides that a party opponent’s admission to a third party is inadmissible without testimony from that third party as a witness 

Affirmative vs. Negative Evidence

• Impeachment: Testimony of any witness may be impeached (i.e., casting of doubt on the testimony), which a party may do by asking questions to demonstrate that the witness is biased (interested vs. disinterested), dishonest, unsure, or unaware of the facts

  • Can be done through negative or affirmative evidence 

• Negative Evidence: Evidence that undermines the adverse party’s effort to prove the issue in question by casting doubt on the quality of the evidence 

• Affirmative: Evidence that disproves or contradicts evidence. 

  • With rare exceptions, BOP can only be satisfied w/ affirmative evidence 

Enforcing the Burden of Production ~ What are the three motions that take it out of the hands of the jury

• Motions for summary judgment, judgment as a matter of law, and renewed motions for judgment as a matter of law all enforce the burden of production 

  • SJ: More complex b/c tries to enforce the BOPT before trial

  • JMOL: Comes during trial, before the jury renders a verdict

  • RJMOL: Comes during trial, after the jury renders a verdict