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Nov. 2 Civil Procedure: Pleadings

So let’s look at the rules we’ve learned so far. First, there’s FRCP 8(a) which requires a short and plain statement of grounds for jurisdiction, a short and plain statement of claim showing the pleader is entitled to relief, and the demand for judgment and relief. The short and plain statement is best illustrated using Form 9 in the FRCP. There are different approaches to use depending on the judge. You can plead general allegations re circumstances giving rise to the claim, circumstances and all the prima facie elements, or facts with enough specificity to enable the parties to determine the preclusive effect of judgment. What you would do depends on the judge and the strategy that you’re using. Maybe you don’t want to plead a lot of facts so you don’t tip your hand or so you can have a broad discovery phase. Or maybe you plead a lot of facts so you can get a quick settlement. You can do anything you want really as long as you meet the minimum requirements of 8(a).


Then there’s FRCP 12(b)(6) which says the failure to state a claim is a defense. If the claim isn’t legally sufficient or factually sufficient, there’s no claim. Legal sufficiency is assuming the truth of the allegations and reasonable inferences, does substantive law recognize the claim. Factual sufficiency is if the factual detail in the complaint is sufficient. If you’re in a code pleading jurisdiction, you have to plead facts constituting a cause of action. If in a notice pleading jurisdiction, you have to follow the FRCP guidelines.


12(e) says you can move for a more complete statement. It essentially says that the plaintiff hasn’t pleaded enough information (either facts are missing or ambiguous) for the defense to state a position.


FRCP 11 is something we’ve just started to review. We talked about McCormick v. Kopmann in which the plaintiff pled two counts that were mutually exclusive. Under Rule 11(b) you can plead alternative, conflicting claims as long as you don’t violate the rule. Under Rule 11(b)(3) you can represent something to the court on a good-faith basis and has or is likely to have evidentiary support. If you honestly don’t know the cause of something but have two theories, you can plead them both as long as one is stated in the alternative or as a hypothetical.


November 3, 2006 - Posted by | Civil Procedure

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