off conclusory statements Is it a logical inference built on facts? Is it info and belief”? “on Apply incorporate as many facts as possible Twombly – Gone from possible to plausible? assume facts in favor of – Π How great are the inferences needed to be drawn? FACTS! Reasonable alternative explanation? (parallel conduct) FACTS! Will disco pose huge burdens? (Twombly) Pleading under FRCP is trans-substantive, no tie of pleading to disco (Iqbal) Simple tort claim that doesn’t challenge common sense? (Erickson) – No need to plead unnecessary detail Do we require heightened pleading? (Rule plausibility is not the 9(b)) same as heightened pleading (Iqbal) Is there information asymmetry? Is disco critical? FACTS! Has pleaded themselves out of court? (American FACTS Nurses) Π Could/should file a Motion for more definite statement Rule 12(e) Δ – Note: No heightened pleading in civil rights cases Leatherman – Note: No need to a prima facie case Swierkiewicz – NOTE: invalid claims alongside valid claims to not dismiss whole claim, but Π could potentially plead himself out of court Policy Provide notice (Federal Rules), Frame issues, Disclose evidence, Dispose of meritless cases Heightened Pleading in alleging fraud or mistake, a party must state with particularity the Rule 9(b) – circumstances constituting fraud/mistake. Malice, intent, knowledge, etc. can be alleged generally Private Securities Litigation Reform Act high standard for federal securities fraud – Policy Professional reputation Fraud is multifaceted and takes place over a long time Usually a completed transaction rewinding the past – People allege fraud to get punitive damages in contract disputes Deterrence of frivolous strike suits Providing adequate notice Answer Has fairly responded to the substance of the allegation? Rule 8(b)(2) – Δ General denial for all allegations including jurisdiction of the court Rule 8(b)(3) – Lack knowledge/information sufficient to form a belief about the truth Rule 8(b)(5) – Affirmative defenses (remember preclusion, must raise affirmative Rule 8(c) all – defenses) After it is unclear what the standard is BUT uses Twombly/Iqbal 8(c) “stating” rather than language of Rule 8(a)(2) “showing” Counterclaim Compulsory Arise from the same transaction or occurrence? Use it or Rule 13(a) – – lose it
off conclusory statements Is it a logical inference built on facts? Is it “on info and belief”? Apply Twombly – incorporate as many facts as possible Gone from possible to plausible? – assume facts in favor of Π How great are the inferences needed to be drawn? FACTS! Reasonable alternative explanation? (parallel conduct) FACTS! Will disco pose huge burdens? (Twombly) Pleading under FRCP is trans-substantive, no tie of pleading to disco (Iqbal) Simple tort claim that doesn’t challenge common sense? (Erickson) – No need to plead unnecessary detail Do we require heightened pleading? (Rule 9(b)) plausibility is not the same as heightened pleading (Iqbal) Is there information asymmetry? Is disco critical? FACTS! Has Π pleaded themselves out of court? (American Nurses) FACTS Could/should Δ file a Rule 12(e) – Motion for more definite statement Note: No heightened pleading in civil rights cases – Leatherman Note: No need to a prima facie case – Swierkiewicz NOTE: invalid claims alongside valid claims to not dismiss whole claim, but Π could potentially plead himself out of court Policy Provide notice (Federal Rules), Frame issues, Disclose evidence, Dispose of meritless cases Heightened Pleading Rule 9(b) – in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud/mistake. Malice, intent, knowledge, etc. can be alleged generally Private Securities Litigation Reform Act – high standard for federal securities fraud Policy Professional reputation Fraud is multifaceted and takes place over a long time Usually a completed transaction – rewinding the past People allege fraud to get punitive damages in contract disputes Deterrence of frivolous strike suits Providing adequate notice Answer Rule 8(b)(2) – Has Δ fairly responded to the substance of the allegation? Rule 8(b)(3) – General denial for all allegations including jurisdiction of the court Rule 8(b)(5) – Lack knowledge/information sufficient to form a belief about the truth Rule 8(c) – Affirmative defenses (remember preclusion, must raise all affirmative defenses) After Twombly/Iqbal it is unclear what the standard is BUT 8(c) uses “stating” rather than “showing” language of Rule 8(a)(2) Counterclaim Rule 13(a) – Compulsory – Arise from the same transaction or occurrence? Use it or lose it