Tues. Sept. 4

drafting a complaint

Bell Atlantic Corp. v. Twombly(U.S. 2007)

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations…a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to

relief” requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

In applying these general standards to a §1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement….It makes sense to say, therefore, that an allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.

Aschcroft v. Iqbal(U.S. 2009)

pleading special matters(fraud)

Rule 9. Pleading Special Matters ... (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

fraud

- statement (omission if duty to speak)- of material fact- that is false (or misleading)- with knowledge of falsity

often intent that plaintiff rely

- reasonable reliance on statement by plaintiff- causation of damages

Rule 11. Signing Pleadings, Motions, and Other Papers;

Representations to the Court; Sanctions

Are frivolous cases a problem?

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery

requests, responses, objections, and motions under Rules 26

through 37.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to

harass, cause unnecessary delay, or needlessly increase the cost of

litigation;

16

Murphy v. Cuomo(N.D.N.Y. 1996)

(3) the factual contentions have evidentiary support or, if specifically so identified, will

likely have evidentiary support after a reasonable opportunity for further

investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief

or a lack of information.

Does the evidentiary support have to be admissible at trial?

19

Example 1

• Each allegation in the complaint was prefaced with the following statement:

“The following allegation is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery:”

(2) the claims, defenses, and other legal contentions are warranted by

existing law or by a nonfrivolous argument for extending, modifying,

or reversing existing law or for establishing new law;

21

Example 2

• The invocation of the drug statute was prefaced by the following:“We would like the law to be extended such that a private right of action should be read into this statute.”