Pleadings: Challenging Complaints, Motions, and Plausibility Standards

Logistics and Class Overview - Canvas Page: Ongoing efforts to fix access issues for the class Canvas page. Students should report if they have not received communications, particularly regarding Monday's class. - Distribution List: The instructor is not on the class distribution list, which sometimes causes a delay in receiving class announcements. - Today's Structure: The material will be divided into "easy things" and "hard things," starting with the easy aspects of challenging pleadings. ## Easy Things: Motions Challenging the Complaint or Answer ### Standard for Challenging Complaints (Rule $12(b)(6)$ or $12(c)$) - General Standard: Rule $8(a)(2)$ requires a "short and plain statement of the claim showing that the pleader is entitled to relief." - Additional Requirements for Fraud (Rule $9(b)$): - Applies only to a small category of cases (e.g., fraud or mistake). - Requires "particularity regarding the circumstances constituting fraud." - This means specific details about how the fraud occurred. - Distinction between Fraud and Consumer Deception: - McDonald's Case (Consumer Deception): Advertising food products found not to be fraud, but rather consumer deception. This distinction is crucial as it determines whether Rule $9(b)$ applies. - Walgreens Case (Fraud): Filling generic prescriptions with more expensive name-brand drugs was deemed fraud. - Definition of Fraud: Making a misleading statement upon which the victim relies. If a case doesn't fit this definition, Rule $9(b)$ does not apply. - State of Mind Allegations (Rule $9(b)$, Second Sentence): Even if Rule $9(b)$ applies, "state of mind issues may be alleged generally, not with particularity." This means while the circumstances of fraud need particularity, the intent of the perpetrator usually does not. ### What Can Be Considered on a Motion to Dismiss (Rule $12(b)(6)$ or $12(c)$ ) - General Rule: On a motion under Rule $12(b)(6)$, the factual allegations of the complaint are admitted as true. - Rule $12(d)$ - Matters Outside the Pleadings: - The court generally "may not consider matters outside the pleadings." - Example (Gillespie Case Hyperbolic): If defendant #3 in the Gillespie case was alleged to be at the plaintiff's house at a certain time, but the defendant presents evidence (like an affidavit from the warden) that he was in jail during that time, this evidence cannot be considered on a $12(b)(6)$ motion because it's outside the pleadings. - Attachments to the Complaint (Rule $10(c)$): - If the plaintiff attaches a document to the complaint, that document is considered part of the pleading and is "available for all purposes" in challenging the complaint. - Important Clarification (Davis v. Ross Example): Attaching a document does not mean the plaintiff admits the truth of its contents. For instance, if a plaintiff attaches a letter they claim is defamatory, they are not admitting the letter's assertions are true; rather, they are claiming they are false and defamatory. - Reliance on Unattached Documents: If a pleading (complaint or answer) "relies upon, invokes, or uses" a specific source (e.g., public record, contract), but does not attach it, the opposing party may submit that source to the judge. The argument is that the source contradicts the pleading, thus demonstrating an invalid claim or defense. - Plaintiff's Motion for Judgment on the Pleadings: If the plaintiff files a motion for judgment on the pleadings (Rule $12(c)$), they can point to materials attached by the defendant in their answer to argue the defendant's own attachments contradict their defenses. ### Exam Question Strategy - Final exam questions dealing with pleading issues will almost certainly state which motion was filed, rather than asking students to determine the appropriate motion. This directs the focus to analyzing the facts in relation to the specific motion. ### Q&A: Clarifications on Challenging Pleadings - Memo Assignment - Body Cam Footage: If a complaint references bodycam footage and the defendants attach that footage, it would likely be considered relevant to what was referenced. This allows the court to review it without converting the motion to summary judgment if the complaint relies upon it. - Rule $12(d)$ vs. Summary Judgment (Rule $56$): - A $12(b)(6)$ motion determines if a claim has been alleged. It does not ask if there is enough evidence to prove the case. - If the court considers matters outside the pleadings that the complaint did not rely upon, the motion typically converts to a Rule $56$ motion for summary judgment, which requires discovery (i.e., proof). - Rule $55$ (Default) vs. Rule $56$ (Summary Judgment): Rule $55$ concerns default judgments, while Rule $56$ deals with summary judgment based on evidence. They are distinct from Rule $12$ motions. - Gillespie Hypo Re-clarified: If a complaint alleges a defendant was at the plaintiff's house, that's a factual allegation for $12(b)(6)$ purposes. The defendant would deny this in their answer. Later, through discovery, the plaintiff would need to present evidence to support their claim. If no evidence exists, it becomes a summary judgment issue, not a motion to dismiss. ### Other Motions and Procedural Twists Under Rule $12$ - Motion for More Definite Statement (Rule $12(e)$): - Argument Basis: The moving party (typically defendant) argues they should not be required to admit or deny allegations in the complaint because they are too vague, ambiguous, or confusing. - Hypothetical Example (Speeding): "Between June and November of 2024, you exceeded the posted speed limit." A defendant cannot meaningfully admit or deny without knowing when or where this supposedly happened. - Strategic Advantages: Allows a defendant to clarify claims to prepare a more accurate answer and decide on relevant affirmative defenses (which must be raised in the answer under Rule $8(c)$). - Consequence of Granting: If the motion is granted, the plaintiff must file an amended complaint with more specific details. If they fail to do so adequately, the defendant can file another motion to dismiss. - Motion to Strike (Rule $12(f)$): - Purpose: Used to remove "redundant, immaterial, impertinent, or scandalous matter" from a pleading, or to strike an insufficient defense. - Defendant's Use: Rarely useful for defendants, as exemplified by the "extremely unusual" Trump case against The New York Times. - Plaintiff's Use: Can be very effective for plaintiffs. - Example ("Blue Eyes" Defense): If a defendant admits all factual allegations but asserts a legally baseless affirmative defense (e.g., "I have blue eyes, so you can't sue me"), the plaintiff can move for judgment on the pleadings and simultaneously move to strike the phony defense. - Rule $12(g)$ - Joining Motions: - "One Time Only" Rule: A party generally cannot make serial Rule $12$ motions. All available Rule $12$ defenses must be consolidated into a single motion or included in the answer. - You cannot move to strike Paragraph $1$, get a decision, and then move to strike Paragraph $2$. - This encourages efficiency in litigation. - Rule $12(a)$ - Extension of Time: Filing a Rule $12$ motion extends the defendant's time to file an answer. For instance, if a motion is denied, the defendant typically has $14$ days to file their answer. If it's granted, the process essentially restarts with an amended pleading. - Rule $12(h)$ - Waiver of Defenses: - Some defenses must be raised immediately or they are permanently lost (waived). - $12(h)(1)$ (Lost if not raised first): Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. These must be included in the first responsive pleading or Rule $12$ motion. - $12(h)(2)$ (Can be raised later): Failure to state a claim upon which relief can be granted (Rule $12(b)(6)$) and failure to join a party under Rule $19$. These can be raised in any pleading, by motion for judgment on the pleadings, or at trial. - $12(h)(3)$ (Can be raised at any time): Lack of subject matter jurisdiction. This can be raised at any point, even by the court sua sponte (on its own). The Buffalo Creek case is a prominent example where this was a major issue. ### Contrast with Motion for Summary Judgment - Rule $12$ motions focus on the sufficiency of the pleadings. - A motion for summary judgment (Rule $56$) focuses on the sufficiency of the evidence. It's a "put up or shut up time" where parties must present evidence to support their factual claims. - For Rule $12$ motions, factual allegations in the complaint are generally taken as true. For summary judgment, if a defendant presents strong evidence contradicting a plaintiff's allegation (e.g., an alibi), the plaintiff must then present evidence to support their original claim, or the defendant will prevail. ## Hard Things: Deciding Plausibility and Sufficiency of Allegations The "hard part" involves applying the plausibility standard established by Twombly and Iqbal. ### Factual vs. Conclusory Allegations - Initial Screening Device: The first step is to distinguish between factual allegations and conclusory allegations. - "Olympic Walk" Standard: An allegation like "The defendant walked across the room" could be factual, but in a highly specific context (like Olympic race-walking competition), it might be deemed conclusory without more specific details about technique. - Clearly Conclusory: "Defendant owes me a million dollars" is a conclusion, not a factual allegation. The court needs underlying facts to support such a conclusion. - Iqbal Step 1: Identify which allegations in the complaint are purely factual. ### The Plausibility Standard - Iqbal Step 2: After identifying factual allegations, the court must ask whether these factual allegations make the conclusory claim (e.g., conspiracy, discrimination) plausible. - Cherkovits (Plausible): This case involved allegations of national origin or age discrimination. The plaintiff, with $30$+ years of experience and Hungarian origin, was replaced by a younger French person with only $1$ year of experience, amidst company revitalization efforts. These numerous factual details made the conclusory claim of discrimination plausible. - Seventh Circuit Example (Not Plausible - Pre-Twombly/Iqbal): "I was turned down for a job because of my race." Without additional factual support, this allegation alone is considered insufficient under the modern plausibility standard. - Parking Tickets Hypo (Not Plausible): "I got parking tickets because of my religion." This is a conclusion. The court needs facts showing why the parking tickets were issued because of religion (e.g., selective enforcement, discriminatory statements). - Twombly (Not Plausible - Conspiracy): - Case Context: Allegations of anti-competitive conspiracy among telecom providers. - Smoking Gun Example: Cars approaching a yellow light and "gunning their motors" simultaneously. While this is parallel behavior, it doesn't necessarily indicate a conspiracy. It could simply be selfish, uncoordinated behavior by individuals acting in their own self-interest. - Plausibility Requirement for Conspiracy: To allege conspiracy plausibly, a plaintiff needs more than just parallel behavior. They would need factual allegations suggesting concerted action, such as secret meetings, coordinated communications (e.g., texts, emails about price fixing), or specific signals. The challenge is obtaining such factual allegations before discovery, while still adhering to Rule $11$ (honest basis for allegations). - Iqbal (Constitutional Tort - Plausibility of Discriminatory Intent): - Case Context: Plaintiff alleged discrimination by the Attorney General and FBI Director post-$9/11$. - Constitutional Ruling: For liability, the defendants' purpose must have been to engage in discrimination (e.g., against foreign-born individuals or religious discrimination) at the time they implemented a policy. - Majority's Reasoning: The majority found it reasonable to initially focus on individuals sharing characteristics with the $9/11$ hijackers, rather than, for example, "$80$-year-old widows in Des Moines." This reasoning implied that the plaintiff's allegations of discriminatory purpose were not plausible without more direct factual support of such intent by the high-ranking officials. - Impact: Twombly and Iqbal significantly increased the latitude for challenging complaints, requiring a stronger showing of plausible factual allegations at the pleading stage than before. However, this is distinct from requiring evidence to prove the case, which comes at summary judgment. ### Reconciling the Cases and Exam Approach - Difficulty of Reconciliation: Many legal scholars find it challenging to fully reconcile Twombly, Iqbal, and Cherkovits. - Practical Approach for Exams: When faced with a motion to dismiss, frame arguments based on whether the specific facts of the case align more closely with: - Cherkovits: Arguing that the motion should be defeated because the complaint contains sufficient factual details to make the claim plausible. - Twombly / Iqbal: Arguing that the motion should be granted because the allegations are too conclusory and lack factual support to establish plausibility. - Focus on Facts: The application often hinges on the unique facts of a given case, rather than broad, generalized concepts. ### Q&A: Plausibility and State of Mind - State of Mind in Twombly/Iqbal: While Twombly (conspiracy) and Iqbal (discriminatory purpose) often involve state of mind, the plausibility requirement applies more broadly. - Rule $9(b)$ (State of Mind): Rule $9(b)$ specifically states that "malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." - Inference of State of Mind: Plausibility regarding state of mind, or any other conclusion, depends on whether the other factual allegations in the complaint make that inference "valid or persuasive or plausible." - Example (Sideshows): If a complaint alleges "$100$ people were present, $12$ cars were zooming around, and guns were fired at $3$ AM," establishing a conspiracy to engage in reckless behavior would require more factual allegations than just the description of the event itself. The court would look for facts that imply coordination, not just individual actions. This illustrates that plausibility extends beyond state of mind to inferring any ultimate fact or conclusion based on given factual allegations. The question is whether the inferred fact (conspiracy, discrimination, or more shots fired) logically and plausibly flows from the stated facts. - The core challenge is making that inference plausible based on the presented facts.

Logistics and Class Overview

• Canvas Page: Ongoing efforts to fix access issues; students should report communication failures.

• Distribution List: Instructor experiences delays in receiving class announcements.

• Today's Structure: Material divided into "easy" and "hard" aspects of challenging pleadings.

Easy Things: Motions Challenging the Complaint or Answer

Standard for Challenging Complaints (Rule $12(b)(6)$ or $12(c)$ )

• General Standard: Rule $8(a)(2)$ requires a "short and plain statement" for relief.

• Fraud (Rule $9(b)$): Requires "particularity regarding the circumstances constituting fraud" (e.g., Walgreens case), but "state of mind issues may be alleged generally." Distinguish from consumer deception (e.g., McDonald's).

What Can Be Considered on a Motion to Dismiss (Rule $12(b)(6)$ or $12(c)$ )

• General Rule: Factual allegations of the complaint are admitted as true.

• Rule $12(d)$ - Matters Outside: Court generally cannot consider matters outside the pleadings; if it does, the motion converts to summary judgment (Rule $56$).

• Attachments (Rule $10(c)$): Documents attached to the complaint are part of the pleading and usable for challenges, but attaching them doesn't admit their truth (e.g., defamatory letter).

• Reliance on Unattached Documents: If a pleading relies on an unattached source, the opposing party can submit it to the judge.

Exam Question Strategy

• Final exam questions will explicitly state which motion was filed to focus analysis.

Q&A: Clarifications on Challenging Pleadings

• A $12(b)(6)$ motion determines if a claim is alleged, not if there's evidence to prove it.

Other Motions and Procedural Twists Under Rule $12$

• Motion for More Definite Statement (Rule $12(e)$): Filed when allegations are too vague for the opposing party to reasonably respond.

• Motion to Strike (Rule $12(f)$): Used to remove