Civil Procedure II Outline - Part 11

(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.

1. In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.
2. Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment's finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.

(d) Time for a Losing Party's New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment.

(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.

a. Pleading

1. a paper containing factual assertions that support jurisdiction and legal claims in a civil suit
   1. Fed 8(a)
2. First pleading is called a complaint
   1. Grounds for SMJ
      1. 8(a)(1)
   2. Claim
      1. 8(a)(2)
         1. A short and plain statement of the claim showing that the pleader is entitled to relief.
   3. Demand for Relief
      1. 8(a)(3)
3. Defendants First Pleading is called an answer
   1. Response to factual allegations
   2. Asserts Defenses
   3. Counterclaims
      1. Normally Completes the pledging process.

b. Historical Purposes of Pleading

1. Giving notice of the nature of a claim or defense
2. Stating facts
3. Narrowing issues for litigation
4. Helping the court throw out bogus claims and defenses without the burden of a trial

c. Rule 8(a)2

1. Stress that you need to make a short and plain statement of a claim showing that the pleader is entitled to relief.

d. Sufficiency of a complaint

1. A defendant often challenges the sufficiency of the complaint to state a claim
   1. An insufficient claim can be attacked in federal court by a defendant's motion to dismiss the complaint for failure to state a claim
   2. Sometimes called a demurrer in a state case
      1. 12(b)6- failure to state a claim.
         1. Reasonable doubts should be resolved in favor of the pleader.
         2. A court should grant a motion if assuming the truth of the well pleaded factual allegations, it determines that they do not p;ausibly show an entitlement to relief under the applicable law. It is not enough that such allegations are equally consistent with an innocent explanation as with a liability creating explanation.

e. Modern Pleading

1. Narrow issues that had to be decided.

f. Code Pleading

1. Facts had to be pleaded
   1. Not mere conclusions of law
      1. Needs to be
         1. What
         2. When
         3. Where
         4. Who
         5. Relationship
2. What is the Cause of Action

g. Notice Pleading

1. What we have now
2. Starting in 1938 Fed Rules of Civ Pro

h. Other Pleading Rules

1. 8(d)2
   1. Pleading in the alternative
2. 11
   1. Requires a reasonable pre-filling inquiry into the facts by the pleader which may settle these kinds of questions before the pleading is filed.
3. 10(b)
   1. Forms of pleadings
      1. Requires numbered paragraphs each limited as far as possible to a single set of circumstances thought it does not require identification of claims it urges that each claim should be stated in a separate count when “ doing so would promote clarity”
4. 8(e)
   1. Pleadings must be construed so as to do justice.
      1. Small errors of FORM are unlikely to be fatal indeed it could well be reversible error for a court to penalize the pleader for minor errors.
5. 8(c)(1)
   1. The court can grant a motion to dismiss if the availability of this defense is apparent on the face of the complaint.

i. Case for this Chapter

1. Doe. V. SMith
   1. Plaintiffs need not plead facts they need not plead law they plead claims for relief usually they need do no more than narrate a grievance simply and directly so that the defendant knows what he has been accused of.
   2. A complaint suffices if any facts consistent with its allegation and showing and entitlement to prevail could be established by affidavit or testimony at trial and the complaint does not contradict itself.
   3. A complaint does not have to establish or mention a prima facie case. Elements do not have to be stated but must be able to be implicated. Reasonable doubts should be resolved in favor of the pleader.
      1. Notes After Case
         1. A complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory
            1. No rigid elements pleading requirement.
               1. Sorema Held
                  1. That a plaintiff need not plead facts establishing a prima facie claim.
            2. Rule 8(a)
               1. Requires only to plead a claim sufficient to let the opposing party know what that plaintiff is complaining about.
2. Heightened pleading
   1. Federal rules of civil procedure 9
      1. imposes heightened pleading requirements for such allegations of fraud and mistake.
         1. 9(b)
            1. “A party must state with particularity the circumstances constituting fraud or mistake.”
         2. Second Part of 9(b)
            1. “Malice, intent, knowledge and other conditions of a person's mind may be alleged generally”
               1. This part of rule 9 excuses a pleader from pleading discriminatory intent “under an elevated pleading standard. “
         3. 9(g)
            1. Requires that special damages be specifically be stated.
               1. Special damaes are those that would not noramlly be anticipated such as damages for a later miscarriage or higher blood pressure said to have resulted from an automobile accident.
               2. Special damages should be specifically stated to avoid surprise to the defendant.
   2. Reasons
      1. Fair Notice
      2. Protecting Reputation
      3. Protecting the public moneys
      4. Suspect plaintiffs
   3. Fun Facts
      1. Expressio unius is a frequently used tool or canon of statutory construction making it one of a small number of lantins worth committing to memory.
3. Iqbal
   1. Two Principles of Twombly
      1. Legal conclusion not true, only well pleaded allegation
         1. The allegations must be well pleaded to assume their truth.
            1. Allegations more than just a threadbare recital of the elements of the cause of actions.
      2. Must be more than a mere possibility must be plausible.
   2. The Break From Conley
      1. Factual
      2. In Favor of defendant
   3. Critiques
      1. Need discovery to make allegations
      2. Takes away potential trials
      3. Judges get awfully close to answering jury questions.
   4. Positives
      1. Unfair settlements from defendants
      2. And counterbalance broad discovery.