PLEADINGS (HEIGHTENED PLEADINGS*
RULE 8 Gen rules of pleading
HEIGHTENED PLEADINGS*RULE 8 Gen rules of pleadingRULE 12(b)(6) Ground for motion to dismiss - failure to state claim
- cannot be "threadbare recital of elements of cause of action"
Ashcroft V Iqbal
2 Prong Approach:
1) Well-pleaded allegations?
2) Plausibly give rise to entitlement for relief?
RESPONDING TO COMPLAINT
2) MOTIONS TO DISMISS
RULE 12 (b), (e), (f)
MATOS v NEXTRAN
Injured husband, truck overturned, negligence
PRINCIPLES FOR RULE 12(b)(6)
Failure to state claim -
(1)When ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.
(2) All reasonable inferences are drawn in favor of the non-moving party.
(3) A court must ask whether the complaint contains either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory
i) BREACH OF WARRANTY 12(b)
ii) NEGLIGENCE 12(b)
- Nextran moved to dismiss Matos’s express breach of warranty claims, because Matos failed to allege that an express statement of fact by the defendants became a basis of the contract. Because this is a necessary element, the plaintiffs have failed to state the claim. The express warranty claims are dismissed without prejudice, and the plaintiffs will be given leave to amend the complaint.
iii) PUNITIVE DAMAGES 12(b)
- Although the plaintiffs did not expressly state that the defendants owed a duty, the complaint alleges sufficient facts to draw an inference that the duty was owed = DENIED.
iv) MOTION TO STRIKE 12(f)
- The specific claim for punitive damages is dismissed, because stand-alone claims for punitive damages are disallowed. McDonald v. Davis, 2009 U.S. Dist. Lexis 17309 (D.V.I. Mar. 5, 2009). This dismissal has no impact on the plaintiffs’ ability to recover punitive damages if warranted.
v) MOTION FOR MORE DEFINITE STATEMENT 12(e)
- Nextran’s motion to strike the complaint’s reference to defendants’ “illegal” acts and plaintiffs’ request for “all damages of every kind” are dismissed.
- Nextran has shown no prejudice that will result from these pleadings.
- Denied. A complaint does not have to be perfect, so long as it makes a statement of the claim and gives the defendant notice of the charges against him. Rule 8.
1) DEFAULT JUDGMENT
"as matter of law, state relief for complaint"
VIRGIN RECORDS v LACEY
- "strong policy to decide cases on merits, defaults viewed w/ disfavor"
- JID = "not automatic, merely admission of facts in complaint.may/may not enough to prove liability"
- PF deemed to have admitted the facts in the complaint, and those facts are sufficient to hold Lacey liable for the copyright infringement.
- In light of this, and the fact that Lacey did not respond for three months following service, Lacey’s “conduct amounts to a deliberate and intentional failure to respond,” and default judgment is proper.
3) OMNIBUS PRE-ANSWER MOTION!!IF NOT = WAIVER!
RULE 12(g) + 12(b)(2)-(5)
[lack of personal juris,improper venue,insufficient process,insufficient service of process]
(1) motions can be joined
(2) subject to 12(h)+(g), if was available earlier but OMITTED = :red_cross:
If you file a pre-answer motion, trigger R.12(g)(2) = barred from raising any other defense in 12(b)(2)-(5) BY ANY MEANS
A. EXCEPTIONS - CAN BE RAISED ANYTIME!
- RULE 12(b)(1) = LACK OF SUBJECT MATTER JURISDICTION
- RULE 19 = JOINDER OF REQUIRED PARTY
Hunter v Serv-Tech
Hunter sued Offshore
Issue : When to raise
to dismiss and when waived?
Offshore are Dutch contractors,
Relevant Law(1) Pre-answer Motion + "Reservation Language" = denied
(2) FIled 2nd Pre-answer Motion = Denied
- Rule 12(b)(5) : Insufficient Service of Process
- Rule 12(b) (2) : Personal Jurisdiction
(3) Must all be raised by pre-answer motion or answer! Waived!(4) Reserving defense can't be made, must be by motion requesting court **
- Rule 12(g)(2)
- Rule 12(h)(1)
4) ANSWERING COMPLAINT
General Denial 8(b)
- Reis Robotics v Concept Industries
- diversity action, breach of contract
- 6 affirmative defenses + 7 counterclaims by Concept
- Reis moves to strike & dismiss affirm defenses, strike portions of answer, dismiss counterclaims = GRANTED IN PART, DENIED IN PART
Bifurcated response 8(b)(4)
Not know 8(b)(5)
Rule 12(f) : Motion to strike for redundant/immaterial/impertinent/scandalousCourt makes sure -
(i) no unresolved questions of fact
(ii) clear questions of law
(iii) no set of circumstances could defenses suceed
*(iv) legal and factual sufficiency of affirm defense examined with ref to state law3-part test to examine sufficiency of affirmative pleadings -
i) appropriately pled as an affirm.defense?
ii) adequately pled under Rule 8 & 9?
iii) standard under R.12(b)(6) [failure to state claim for relief pleaded] adhered?2nd Affirm Defense - "breach of contract,void for fraud and/or failure of consideration"
3rd Affirm Defense - "Reis's claim barred, never authorised Reis to manufacture fixture, Reis itself acknowledged"
- R.8(a) no elements of breach of contract claim
- R.9(b) no heightened particularity for fraud claim
- detailed allegations in CC, no link to affirm defenses
= struck out, w/o prejudice
5th Affirm Defense - "Reis's claim barred,limited by laches,waiver,estoppel,unclean hands,or similar legal or equitable doctrines"
- R.8(c):must admit allegations,but got legal reasons excusing from liability = didn't do. mere restatement & unnecessary,improper
= striken, allowed to replead
6th Affirm Defense - "Concept reserves right to add additional affirmative defensesas they become known through discovery"
- must be pled with specific elements to est defense, factual support as excuses to liability outside complaint
- Rule 8(a) not satisfied, not give proper notice of pleadings for legal basis of defense
= striken, w/o prejudice
Motion to Strike Portions of Answer - improper qualifying language in para 5,6,7 - "To the extent the alleged contract created by issuance of this purchase order failed to waarant the trim speed and cycle time that Concept required, it was procured by fraud and was of no validity; accordingly the remaining allegations in this paragraph are denied as true"
- not proper as leave to amend can be granted under R.15(a) later = would be judged by appropriate standards + limitations in 12(b) & (h)
= striken w/o prejudice
- failing to comply with Rule 8(b), not constitute an admission or denial of Reis's allegations
- equivocal, confusing facts in dispute
= paragraphs 5,6,7,15,16 & 20 stricken, with leave to amend
= must follow 8(b) to either admit, deny or state it is w/o sufficient knowledge, to give qualified answer
- 1,2,3,4,5 ADs stricken w/o prejudice
- 6th ADs stricken with prejudice;
- para 5,6,7,15,16,20 stricken w/o prejudice
5) AFFIRMATIVE DEFENSES
- MUST BE PLEADED IN ANSWER OR WAIVED!!
- admits fact, but states why no legal effect