Civil Procedure Notes
Erie Doctrine
Till 1938: Federal Common Law was applied in both state and federal courts regarding issues like negligence.
1938:
Federal Rules of Civil Procedure were introduced.
The U.S. Supreme Court decided Erie Railroad v. Tompkins.
Federal Common Law (1972-1938)
Justice Brandis called it a mistake since inception.
The Rules of Decision Act was misconstrued, enabling the creation of federal common law.
Reasons:
Misreading History: Recent research unearthed drafts of the Rules of Decision Act, suggesting that the construction in Swift v. Tyson was wrong.
The Great Philosopher Driver of Swift v. Tyson (1842):
Federal courts created the common law, envisioning a transcendental body of common law for federal homogeneity that would diffuse to the state level, creating uniform community law.
Believed in natural law.
The experiment failed.
By 1938, state and federal courts differed, leading to forum shopping.
Federal courts disagreed with each other, resulting in inconsistent resolutions within the same state.
Unconstitutional Behavior: Federal courts were creating substantive law without constitutional authority.
Federal courts cannot define the law between trespassers and landowners; only states can.
This realization was shocking.
No citation of the constitution.
Erie Doctrine (1938)
Defines what is substantive (beyond federal competence) and procedural (within federal competence).
Erie Railroad v. Tompkins and Guaranteed Trust Company v. York are critical cases.
Critical Issues
Is a federal court sitting in diversity?
Federal Question: Federal courts control.
Diversity: Erie applies.
Bound to apply state statute of limitations.
Are federal courts free to determine their own limitations or doctrine of Latches?
Vertical Uniformity
Erie was designed to promote vertical uniformity within a state.
The outcome in a state court and federal court regarding the same matter should be the same.
Prevents result shopping within the same state.
Statutes of limitations are outcome-determinative.
Byrd v. Blue Ridge
Industrial Accident Case: The question of whether a plaintiff was covered by workers' compensation, precluding access to the judicial system.
Byrd was a worker in Carolina court.
Issue: Whether the worker was covered by industrial accidents or not.
South Carolina: The judge decided the worker's status.
Federal Courts: The question goes to the jury.
Follow federal practice or Carolina practice?
The Supreme Court says:
State Rule and Policy Basis:
The reason for Carolina giving the decision to the judge is not very powerful.
Federal Interest: Influence, if not command, of the 7th Amendment to the Constitution.
The state rule is not significant; federal practice is very important.
Balance the two; the federal interest is very important.
Likelihood of outcome determinative.
In a certain number of cases, there might be differences between state and federal outcomes; cant predict those differences.
Outcome determinative is probabilistic, unlike Guarantee Trust Company.
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Hanna v. Plumber
Service of process given to the spouse of the representative after the year had expired.
Motion to dismiss was made because it did not comply with the Massachusetts statute; process on spouse within 1 year, not 1 year of person served.
Federal rule said spouse service was allowed.
Supreme Court said the Mass. statute was not a statute of limitations but a procedural rule.
In federal court, federal rules of civil procedure apply; it is high federal law of policy, regulating processes pursuant to a federal statute that delegates power from Congress to the Supreme Court to make rules.
Sufficiently strong federal policy trumps the Mass. statute.
Biggest movement to federal law since Erie.
Warren: Federal rule-making and presumptive validity of the federal rules.
If a rule is applicable, constitutional, and complies with Section 2072, it trumps state law to form a preemption.
Shady Grove
New York civil practice: Class actions are allowed in certain instances but not in penalty cases.
Federal courts considered a penalty for failure to pay interest on doctors for their medical services in the HMO structure.
Death of class actions in New York.
The state says this is a penalty and cannot have class actions.
Federal Rule 23 prevails.
Hanna v. Plumber: Valid procedural rule, promulgated in 2072, constitutional, conflicts with New York class action rule, and under Hanna, it wins.
States: Federal Rule of Civil Procedure 23 a and b identifies prerequisites for certifications. If these requirements meet, there is a class action. In that conflict, Hanna v. Plumber states the federal rule prevails.
Dissent (Ginsburg): The limitations of class actions in New York reflect New York policy; the federal rule cannot trump that.
Exam Strategy
To answer an Erie question, identify how the case would come out under each of these cases (Erie, Byrd, Hanna, Shady Grove) because they are accumulative.
Demonstrate understanding of these cases and that the result may reflect emphasis on Hanna or Byrd; none of these cases overrule one another.
Inverse Erie
State court obligation to apply the federal statute and effectuate federal policy.
Enables a railroad worker to sue in federal or state court; contributory negligence is eliminated by the statute in a FELA case.
In state, Federal court tries to reach the same outcome of a state court in a comparative case.
State court in a federal question needs to try to reach the same outcome as a federal court in a state court.
Overview and Particularity of Pleading
A summons and a complaint need to be served together.
Need to be served 120 days from the start of commencement.
Complaint:
The plaintiff's statement of his or her grievance
Purpose:
Move litigation ball forward.
To give notice to the defendant of what is being complained about.
To reveal the relevant circumstances and events that are being called into question.
Pleading and Complaint:
Used to be all-encompassing for civil litigation, bearing a heavy burden of notice, fact revelation, and issue formation.
Became a technical monstrosity with much battling over the sufficiency of the pleadings, costing time and money.
Innovation in 1938: Pleadings were downplayed; they were only to give the defendant notice of the claim.
Model forms showing the simplicity of the pleading.
Goal:
Exchange views on the hurt and the defenses.
Get into discovery to get into the facts.
Clear out the trash by summary judgment.
Go to the gold standard: Trial before a jury.
Complaint (Federal Rule 8)
Requires:
Short and Plain Statement of Jurisdiction
Diversity Case
Is there an Amount in Controversy?
Suing under A federal statute
Federal Jurisdiction involved
Plaintiff have to give a Short and Plain statement of the claim, showing that the plaintiff is entitled to relief.
This is the backbone of what they were intending; just tell the defendant that you hurt and where it hurts.
No obligation to plead facts and to state a legal theory; just give notice so the defendant can start preparing a defense.
A demand for relief
What do you want?
Rule says you can plead in the alternative: Ask for damages, ask for restitution, ask for specific performance, ask for an injunction.
Reduced the significance of the pleadings in an attempt to move the case along.
That is what the Supreme Court wanted; don’t throw out unless legal certainty no right for relief.
Under this liberal approach, only throw the complaint out if there was no legal basis for it.
Repeated liberal pleading, no cause of act, until 2007:
Court becoming more conservative
Bell Atlantic Corp v. Twombly (2007)
Ashcroft v. Iqbal (2009)
High cost of litigation, caviler pleading and jacked up the pleading requirement says that we believe in notice pleading, must be accompanied by some facts that makes the claim “plausible.”
Plausibility: “Showing” from “Short and Plain Statement Showing that the plaintiff is entitled to relief”
Court interpreted this to mean that you need to showing you need facts.
Major transformation for the detail pleading, almost takes us to the error that you plead facts.
Iqbal: How do you know plausibility? What is the district court supposed to do?
Use his or her common sense and judicial experience – not helpful, doesn’t reflect reality.
There is no notion of “common sense” that ties federal judges together- Judicial experience of New York and Idaho two different.
New Judge- No experience to rely on.
Plausibility is you know it when you see it.
Caters to the philosophical area.
Off the traditional notion, don’t dismiss unless no legally cognizable complaint
Lots of dismissals and expansion in the length of pleadings.
125-page complaint, simplify, moved from a simplified to a fact-oriented complaint.
Answer:
21 days after the complaint. (They normally take longer, defendant makes a motion to dismiss for failure to state a complaint, lack of jurisdiction, or extension of time)
1 or 2 or 3
Systemic reaction to each and every one of the number paragraphs in the complaint.
Line up each complaint to each answer and admits or denies each and every allegation set forth from the plaintiff.
Responsive to the complaint
Affirmative Defenses
First part denying or admitting, this part, the statute of limitations has run, or formal adjudication bars this action; even if everything else is true, the plaintiff has committed fraud (Federal Rule 8 c).
Defendant becomes a Plaintiff, becomes an aggressor, counterclaim or two, or the defendant seeks to implead a third party into the case, or if multiple defendants one cross claims against another defendant
Plaintiff beats me its all your fault, that I have against you.
Pleadings
Typically closes the pleadings, only two stages, a complaint and an answer.
Technically a possibility of a reply but no purpose to it.
Better off to either go to summary judgment or trial then a reply.
Special Pleading Rules
Certain things have to be plead differently.
Example: Fraud
Claim of Fraud, by nature, Fraud is a subjective, emotional, and morality matter that can hurt someone’s reputation
Want to Plead Fraud?
Federal Rule 9 Requires:
Do it with Particularity.
Must set out facts showing the circumstances of the fraud; High pleading level.
Mistake or Condition of Matter - Plead generally.
Some cases lighten the pleading burden.
Not plead each president, on by one by one, I did all of the conditions.
Special Pleading rules Policies behind them.
Bell Atlantic Corp v. Twombly (2007)
Ashcroft v. Iqbal (2009)
Both are federal decisions about federal rules.
Some cases have said me too, some say not on your life, state practice is different from state to state
Amendment of Pleadings
In the old days, under the code system, had to get it right the first time, even if you did not have the benefit of discovery when you plead, could not deviate from the pleading.
It was cause a variance, and it could be fatal.
Federal Rules:
Pleadings were designed to be liberal in the required detail.
Recognized that sometimes discover post complaint there was something you did not plead, now aware of because of discover and you want to amend the pleading
Allowed under Federal Rule 15 to amend your pleading- done very liberally, no binding to the OG pleading
Federal Rule 15 period of Grace
Beginning of the action, amend the complaint can say that they are prejudice, too early how?
Rule says that you can amend on your own without a motion at least for 21 days or till the responsive pleading comes in, no motion need, just amends supersede OG Pleading.
Only can amend one time
However, once you run out of time, or use your one amendment of the complaint- you must make a motion.
Period of time between pleading and trial (pre-trial) sometimes 5-6 years in length, and then there is trial; the rule creates standards for amending during the pretrial phase and enables you to amend during or after trial.
Prior to trial, you have a right to amend or make a motion seeking level to amend, the standard “Freely give leave when justice so requires”
Liberality gets to the merits, and if the merits seem different after one you commence, leave will be given when in the justice to do so.
Leave to amend is usually granted.
Can be Denied when tried to play the motion
Choses to to amend in a timely period.
Law Changes
Otherside invested 1 million is discovery cost
Don’t like when you try to gain the system
When it is understandable, then the court will grant leave to amend - tougher when trying to get an amendment at trial, discovery is over, jury is sitting there, and court is reluctant to allow you to amend at trial.
Rule says give freely allow an amendment when doing so will aid in presenting the merits and the objecting party fails to stratify the courts that they would be prejudice.
Care more about the merits then the late fact.
Do it freely unless the objecting party to establish for the courts that it would be prejudice.
Pro-Amendment philosophy, get to the true amendments of the action.
Different judges are different; certain judges are cynical about attorneys; good judges will take deep in the case on the merits.
Deviation, amended by consent, trial lawyer better to stay awake; something can come in and fly by you.
Relation Back of Pleadings
Times when the request to amend is after the applicable Statute Of Limitations has run on the case.
Plaintiff says that “I didn’t know I had that claim, just learned about it in discovery”
Liberal Policy: Allow the amendments- but what about the statute of limitations being time barred, sued on by independent action, claim not allowed
When are you going to allow the amendment to relate back to the original complaint?
Make belief that this amendment being sought when started the case.
Tricky- slightly lose on SOL trying to get cases resolved on merits.
Rule 15 sets up a standard: Relate it back that when the law that created the statute of limitations (substantive in diversity) allows the relation back
We in the federal court will relate it back to; or
If the new claim or defense arose out of the same conduct, transaction, or occurrence that was set out in the OG pleading.
Look defendant you had notice that this conduct being called into question, knew this transaction was being challenged by the plaintiff, so this new twist of the new legal theory on the same transaction, same conduct or occurrence, you are not prejudice by this
Interest of adjudicate the whole things on the merits allow to relate back.
Overcoming the statute of Limitations.
Protect the surprise of a late action no surprise when years earlier, identified as being a matter of condensed.
New defenses or claim for relief, hardest part about this, is the amendment that doesn’t simply change the claim or the defenses and instead drags a party and says you are in this too, unfair because this party was not informed during the SOL period that his or her conduct was in question.
It is unfair if that party is to be added is blindsided; however, this does happen, that you sue the wrong party.
Didn’t realize that someone else was driving the car - rule says that you can add the new party and relate it back, only if the party to be added:
Actually, had notice of the action that a mistake has been made
And but for that mistake you knew you were the real person to be brought into the action
Limit the adding of parties; serious issue of party identification, and instead of being innocent, the real party new of the action of the mistake and it was the intended defendant.
High Burden of Persuasion to Win that Motion.
Erie Doctrine (Freer)
Diversity Cases
Fairly Narrow issue only comes up if in federal court (under diversity of citizenship circumstances) and the issue that is being decided, and in deciding must the federal judge apply state law or free to ignore state law.
Issue: SOL, Who pleads on issue, federal judge question in deciding must apply state law or free to ignore
Black Letter Rule (Erie): In Diversity cases, a federal court must apply state substantive law
If this issue being decided is an issue of substantive law, then must apply state law on that issue.
True from two issues:
Rules of Decision act (Section 1652 of the Judicial Code)
Compiled by the constitution 10th amendment (Powers not give to the federal government in the constitution are retained by the states)
Rules of Decision Act: In these cases, the federal court must apply state law as its interpreted on substantive matters
If substantive, then use state law
Hanna v. Plumber (1965)
Shows what is one doctrine (Erie) is two:
Hanna doctrine.
Erie
Section A: Hanna Prong
Tells us: Very first question:
Is there a federal provision on point that directly contradicts state law?
Is there a federal provision that conflicts with state law? Yes- Apply the federal law, as long as it is valid.
Decided by the Supremacy Clause of the Constitutions- Then Federal Law Wins
Provision Comes from:
Constitution
Federal Statue
Federal Rule of Civil Procedure
How do we determine whether a Federal Rule of Civil Procedure is valid?
Rules Enabling Act
Rules Enabling Act (Section 2072, Judicial Code)
Says: Federal Rules are Valid if they do NOT modify substantive rights.
Supreme Court Interpretation: Valid under the Rules Enabling Act if it is ’just arguably procedural’
All are - Supreme Court has never held one invalid under the Rules Enabling Act.
On point, trumps
*Shady Grove: (Justice Stevens argued that there should be a stricter test for validity under the Rules Enabling Act. Supreme Court has very held one invalid under the Rules Enabling Act)
*Hanna (Case federal court, defendant served through substantive service of process (allowed under Rule 4) BUT in Massachusetts law that is NOT OKAY (This type of case you could not have substantive service. Diversity case in Federal Court, the Federal Judge)
*Ask yourself-
*Is there a federal Rule or Provision of ANY KIND that directly conflicts with state law? (Hanna- Yes, Federal Rule 4 was on point, and directly conflicts with state law)
Then- If there is a federal provision on point, it wins, it trumps state law, as long as the federal provision is valid. (Hanna- Federal Rules of civil Procedure Rule 4 was valid)
Ask is there a federal provision on point regarding this issue?
Section B: Erie Prong
Comes up if there is no federal provision on point.
No federal Provision on Point true Erie Question The federal judge must apply state law on the matters of substantive issues, but don’t have to follow state law if it is not a substantive issues
What is Substantive Law? (SCOTUS VERY UNCLEAR)
(LAW PROFESSORS HAVE THERE OWN THEORY ASK PROFESSOR)
Outcome Determinative
Guaranty Trust v. York (1945)
(Facts: State law case would be barred under the Statute of Limitations, he waited too long to file the suit. State law, case dismissed. Case brought in federal court under diversity jurisdiction, federal judge wants to ignore state law. (Erie Not Hanna, no federal statue of limitations here)
*Court holds, federal judge must apply State law on SOL. Substantive for Erie purposes. Diversity Cases apply state SOL, substantive law. Because it is Outcome Determinative)
*Outcome Determinative Test:
*If we use the State Law, this case is dismissed right now, because its barred by the Statue of Limitations.
*If we ignore the state law, this case is not dismissed and it proceeds in the litigation stream of cases.
*That says SCOTUS is a different result- should not different results in Federal and State court, at least not in as far as the legal rules will determine that.
Apply State law: Case dismissed
Don’t Apply State Law: Case is being litigated.
Different resulsts- don’t like- must follow state law.
*Some point everything is Outcome Determinative- Different types of paper for federal court and state court, could be outcome determinative.
*Not a lot of people like it, but the SCOTUS has never overturned this test.
Balance Of Interest
Issues- Judge decide case by state Law with no Jury- Federal court Erie no federal issues-Does the federal court have to follow the state
Law - no federal rules or statute issues allocation of judge and jury is a substantive rule. The outcome determinative test don’t help, because maybe the judge and the jury would have come to the same conclusion.
lif a rule is not clearly substantive, the federal court should apply it, Federal Court should follow state law, even though its not clearly substantive, unless, the federal court system has some interest in doing it differently - Bryld the federal court is free to have its way and not to what the state does
*If Substantive the federal just must follow it on diversity cases, Here we are saying that EVEN if its not clearly substantive, you should follow state law UNLESS there is some federal interest in doing it differently.
*(In Bryd there is some federal interest in doing it differently, this is a matter of allocating the authority between judge and jury, federal courts free to do there own thing, not kept into what the state law should do, state had no reason for doing it differently, other then that they have always been doing it this way, while the federal courts have a strong interest under the Seventh Amendment, like the jury system in federal court, not on point here, but outweighed the state interest.)
Twin Aims of Erie
Twin Aims comes from Hanna v. Plumer
Avoid forum Shopping
Avoid Inequitable Administration of Law
Application: At the outset of the case, right when the case is being filed, we ask if the federal judge ignores this state law, will it cause parties to flock to federal court? If so this is a bad thing - we don’t want forum shopping, automatically unfair to instate citizens, cant have diversity of citizenship and can not ignore that state law.
*Court has never told us how this works and approach of Erie Account to these three tests and come to a reasonable conclusion.
HYPOS:
We have a case that’s filed in federal court under diversity jurisdiction. And it is filed as a class action. Plaintiff files a class action in federal court, under diversity jurisdiction. Federal Rule 23 would allow this to go forward, as a class action. We meet all the requirements for Rule 23. It would be a class action under Federal Rule 23. BUT, the State Laws says that in this kind of claim, the plaintiff CANNOT proceed in a Class Action. They must sue individually. State law says in his kind of claim, no class action. You got to file individually. Now you are a federal judge. It’s a diversity case. You have an issue to decide. Can this case go forward as a class action? What do you do?
Hanna Prong- Is there a federal provision on point, that directly clashes with state law?
Yes, Federal Rule 23 is on point; it governs when you can have a class action. Additionally, it clashes with state law because state law says no it does not allow class actions.
Here, you would apply Federal directive as long as it is valid.
Is federal rule 23 Valid?- Yes, as long as we know it is valid.
Under the Rules Enabling Act, it is arguably procedural, about how to compile claims.
Additionally, the Case of Shady Grove upheld that Rule 23 was Federal Law, and allows that Federal Law trumps State Law in this type of case.
This is not an Erie problem at all, is a Hanna issue, and it wins because there is a federal law on point, and thus state law can not be applied.
Hypo2
We are in State X, and the legislature in State X is worried about health care cost. It wants to reduce health care cost. And so it decides that its going to have a special rule about medical malpractice litigation. And State X passes a statute that becomes effective. It becomes effective, and it says that when the plaintiff sues for medical malpractice, before she can go to trial, she must go to arbitration before a panel of doctors and lawyers and judges. Now, the plaintiffs hates this. They would much rather go to trial in front of a jury because jurors cry when you tell your story. Judges, lawyers, and doctors don’t cry so much. So plaintiffs do not like going to arbitration before these professional folks because they just figure they are not going to win as mush money. The statue says that your medical malpractice case, you file it, that’s great. You will be sent to arbitration before one of these panels. And after the arbitration, I you do not like the result, you can come back into the litigation stream and go to trial. But the jury will be told about arbitration results. So you file a medical malpractice case. You got to go to through arbitration. Arbitration says you win 5.00. You still think it’s a 1 Million case. Now you go to trial. And the jury will be told, however, that arbitration said 5.00. Still, you might win your million dollars. But the idea obviously is to reduce the amount of medical malpractice litigation. Now, you know what happens. A citizen of another state - we were in State X there. So, a citizen of State Y comes into State X on vacation, gets hurt, gets sick, goes to the doctor, claims that the State X doctor committed malpractice. The citizen of State Y sues the doctor, citizen of State X. It’s a diversity case for medical malpractice. We are in federal court. You’re the federal judge. Must you apply that state arbitration rule? Must you send them to arbitration or can you ignore the State X rule? How do you analyze it?
First, Hanna, is there a federal provision on point?
No, there is not a federal provision on point. There is nothing anywhere in the federal rules or statues about medical malpractice arbitration.
Second, Erie Question
Outcome Determinative?
Maybe the arbitration panel and the jury, would come out the same. WHO KNOWS!
Sense that the arbitration Panel will give us less money - we do not know that for sure.
Because of this, it is not clearly outcome determinative in this situation at hand.
Balance of Interest
Different then the Byrd Case, here the state has a big interest. Byrd, state had no interest because it has no reason for its rule.
Here the state had a strong interest in lowing medical cost for its rule.
Because of this, the state interest weights a lot in this case.
*Federal interest Here?
Always a federal interest in having juries decide a decision.
Here, we are not doing away with the jury. All the state law is doing is delaying the jury. Not do away like Byrd.
Weighs in favor for state law.
*Teen AimesIf the federal judge ignores the state arbitration clause, will it cause parties to flock to federal courts.
YES! EVERY PLAINTIFF WHO CN GET INTO FEDERAL COURT WILL GO THERE, SO THAT THEY DON’T HAVE TO GO THROUGH THE ARBITRATION PANEL.
This promotes forum shopping, something that we do not want to happen. This is something that is considered a bad thing
Also going to result in the inequality administration of the law.
Because, State X plaintiffs cannot get away form the arbitration provision because a State X plaintiff suing a State X doctor cannot go to federal court under diversity.
Thus, unfair. Only citizens of other states can go to federal court and try to get this different approach.
So, because of the twin aimes, the federal judge will likely say, I’m going to apply the state law arbitration panel clause, If I do not it promotes forum shopping and therefore is unequitable to the citizens of state X, who can not avoid state court.
Pleading and Motions (Freer)
Pleadings are the document that sets for there claims and defenses.
Federal Rule: Notice Pleading: Idea that you should not have to put a lot of detail into your pleadings - goal is to put the other side on notice.
Meeting the pleading rule is not very difficult 2 buy and Iqbal changed this rule. Clear that the Supreme Court expects greater detail in the Plaintiffs pleading than would prior to these two cases.
Four Sections
Rule 11
Is aimed at avoiding frivolous or baseless documents in our litigation.
Rule 11 applies not just to pleadings, but to all documents except discovery documents
Requires the attorney to sign all of these documents. AND, when you sign, you are certifying various things that you’ll find in Rule 11 (b)
When you sign a document, you are certifying to the court that you made a reasonable inquiry. AND you are certifying:
One, the document is not for an improper purpose
Two, your legal contentions are warranted. (Essentially, law does support what you are saying, or law should change)
Three, factual contentions will have evidentiary support or will likely have evidentiary support when you get a change to look at it further
Fourth, Denials of factual contentions will also have evidentiary support, or likely to after further investigation
When signing, you are saying that the document is supported by the law, by the facts and denials.
It’s the certification that is very important.
Three Procedural Points in regard to Rule 11 i.Certification is effective every time you advocate a position from that document.
Continuing certification, certifying today, and a year from now
Sanctions for the violation of Rule 11 are discretionary.
They are not required, other party violates Rule 11, not entitled to sanctions, can make a motion, up to the court
Purpose not to punish but deter the activity from happening again
A motion for sanctions cannot be filed right away
If the other side violates Rule 11, baseless, cannot file a motion for sanction, draft motion serve to the other side, give 21 days to fix the problem, fix writing 21 days you can’t have any sanctions at all. After 21 days not fix problem then can file the motion. Need that 21 safe harbor
*Rule 11 (b)- complaint: This is the pleading that states the case, file the pleading call the complaint, this starts the case.
Under Federal Rule 8 (a):
A short and plain statement of the claim.Short and plain for now we will discuss this. A demand for relief
All of these makes sense. Going to federal court they can only hear certain types of cases -1 federal question 2 subject matter jurisdiction. The complaint needs to have smj (Subject Matter Jurisdiction)State the claim*Releif you would like to recover.
*A short and Plain Statement of the Claim: Historically, the federal courts used notice pleading. So did not have to give a lot of detail about complaint, only needed to put them on notice Change the equation with the SCOTUS cases (Twombley, and Iqbal or Twiqball)*Twiqball: Establishes that the “Plaintiff must plead Facts supporting a plausible claim”. Odd standard: Rule 8 (a)(2)(which is supposed to set the standard) does not contain the words fact and plausible, but this is the standard according to the SCOTUS.
*The complaint must have these three things:
*A statement of SMJ (Subject-Matter Jurisdiction) *A claim. *Demand for relief.
How does the court apply it?
Trier of Facts must look at the complaint and follow these three rules.The court ignores conclusions of Law, and focus only on the allegded facts a sometime shard to find the allegation of fact and the legal conclusion, conspire is a legal conclusion . Facts Support a plausible claim b plausible, to just it might or could have happenedTo determine plausibility, The judge uses her experience and common sense, its what a normal person might think in this situation Very subjective, every judge different background different Complaint in differently Ways
Are situations where the federal rules require even greater detail Found in Federal Rules- heightened pleading requirements if trying to allege Fraud, Mistake, Special Damages Use these Rules 9(b) 9(g)The plaintiff
Red flags when talking about allegations of fraud THEY MUST BE STATED IN PARTICULARITY- WITH DETAIL!
Gives defendant to choose
very important If we didn't enter them within certain time we wave them general rule (must respond not latter them 21 date after serve by process either move or after or else we get a defalt)If the defendent waives process(under rule 4)(By filling out wiaver form, in that plaintiff said to us May do that (longer time of which to respond )If wait that if 60 date form of that the plaintif mails her the wave form for the time of which to be