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Procedure - Coggle Diagram

- - - - Current Standard of Pleading (Rule 8): not just conceivable but plausible
        
        Claim for Relief. A pleading that states a claim for relief must contain:
        (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support
        (2) a short and plain statement of the claim showing that the pleaser is entitled to relief
        (3) a demand for the relief sought, which may include relief in the alternative or different types of relief
        
        Federal Complaints must have:
        
        Jurisdiction allegations
        
        Demand for Judgement
        
        Numbered paragraphs
        
        A "short and plain statement of the claim showing that the pleader is entitled to relief"
        
        Pleading inconsistently or in the alternative is okay
      - Notice of Pleading--standard used today
        
        Complaint must contain relevant facts
        
        The rules must be considered generously in favor of surviving a motion to dismiss
        
        Post-Twiqbal
        
        Plaintiff must plead facts in addition to elements
        
        D needs to show P's allegations don't "plausibly suggest" elements of the claim (P must allege facts beyond "naked assertions" of elements
        
        Determining Plausibility
        
        In another explanation for the conduct more likely?
        
        Has the movant plead facts that "nudge" the claim from possible/conceivable to plausible?
        
        Plausible is less than particularized requirement under rule 9
        
        Judges use "judicial experience and common sense" to determine
        
        Plausible is more than possible or conceivable
        
        3 part Iqbal Pleading Test
        
        Second, after identifying the elements of the cause of action, ignore any allegations that merely recite the elements of the cause of action
        
        Third, consider whether the remaining factual allegation-those that do not merely recite the elements-- are plausible, not merely conceivable. If they are not plausible, the complaint fails to state a claim and should be dismissed
        
        First, take note of the elements the plaintiff must plead to state their claim (pleading analysis always states with the substantive law
      - Heightened Pleading--Pleading with particularity (Rule 9)
        
        More detailed pleading is required in certain limited cases (ex. fraud)
        
        Rule 9(b)
  - - - Omnibus Motion Rule
        
        If you make a Rule 12 motion pre-answer, you must include all of your Rule 12 motions in the same motion if they were available; otherwise they are waived
      - Rule 12 Waiver Trap
        
        You must raise any 12(b)(2)-(5) defenses in your first response to a complaint--a motion or an answer--whichefver comes first, or that defense is waived forever and ever
        
        Insufficient Process: 12b4
        
        Lack of PJ: 12b2
        
        Insufficient Service of Process: 12b5
        
        Improper Venue: 12b3
      - 12(b)(1): Lack of SMJ-- Never waived. Rule 12(h)(3)
      - Failure to state a claim upon which relief can be granted: 12b6
        
        Use Twiqbal Plausible Pleading Standard to test this
      - Failure to join a party under Rule 19: 12b7
    - - Rule 8(b) Defenses: admissions and denials
        
        (1) in General. In reposing to a pleading, a party must:
        
        (A) state in short and plain terms its defense to each claim asserted against it
        
        (B) admit or deny the allegations asserted against it by an opposing party
        
        (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest
        
        (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading--including the jurisdictional grounds--may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted
        
        (5) Lacking knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state and the statement has the effect of denial
        
        (2) Denials--Responding to the Substance. A denial must fairly respond to the substance of the allegations
        
        (6) Effect of Failing to Deny. An allegation--other than one relating to the amount of damages--is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is not denied. If a responsive pleading is required and the allegation is considered denied or avoided.
      - Must include Rule 8(c)--Affirmative defenses
      - Answer after complaint or after your motion to dismiss is denied
      - Can include any defenses not waived
      - The document responding to each of the allegations in the complaint, again in numbered paragraph form. Could contain counterclaims (12)(f)
      - Must admit or deny any factual allegations
      - unclear whether Twiqbal applies
  - - - (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
      - (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later
      - (1) Amending as a matter of course. A party may amend its pleading once as a matter of course within
        
        (A) 21 stays after serving it or
        
        (B) if the pleading is one to which a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier
    - - (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raided in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the injecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merit. The court may grant a continuance to enable the objecting party to meet the evidence
      - (2) For issues tried by consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raided in the pleadings. A party may move--at any time, even after judgement--to amend the pleadings to conform them to the evidence and to raise an unleaded issue. But failure to amend does not affect the result of the trial of that issue
- - - - Safe Harbor or Show Cause
        
        21 day safe harbor to correct filing unless court acts suavities sponte
      - Sanctions to deter
        
        can be monetary or CLE classes
      - Sanctions paid by attorney not client
      - losing is not enough to violate rule 11