Civil Procedure II

[Revised] Pleadings (part I) - Rule

8(a), 9(b), 12(b), 12(e), 12(f)
Professor Reichi Lee
Spring 2020
This Week’s Objectives: 1/7, 1/9

● Syllabus
● Timeline of civil litigation - see handout
● Development of pleading standards: common law pleading → code
pleading → notice pleading (see modern standard Rule 8(a))
● Relationship between a Rule 12(b)(6) motion to dismiss for failure to
state a claim and Rule 8(a)
 Code Pleading (old) Notice Pleading (FRCP)

A concise statement of the facts Rule 8(a): “a short and plain

constituting a cause of action. (In statement of the claim, showing
other words, facts for each that the pleader is entitled to
element of a cause of action.) relief.”

Purpose: to enable the court to Purpose: to put D on notice as to

determine the cause of action what he’s being sued for.

Code Pleading v. Notice Pleading

This Week’s Objectives: 1/14, 1/16

● Themis Quiz Builder

● Finish notice pleading
● Discuss complaint hypo
● Start responding to complaint
Plausibility (Twombly/Iqbal)

Do the plaintiff’s allegations raise a plausible inference that the pleader is entitled to relief?
Conceivable or possible is not enough.

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that defendant is liable for the misconduct alleged.
Notice Pleading: Rule 8(a)

What does “short and plain statement showing that the pleader is entitled
to relief” (Rule 8(a)) mean?

Probably true (too much)

**Plausible**

Mere possibility (too little)

Standard of Review on 12(b)(6) Motion

(1) Court must assume all the facts alleged in the complaint are true, except legal conclusions; and
(2) Determine whether the factual allegations make the claim plausible, as required by Rule 8(a).
Rule 9(b): Pleading fraud or mistake
In alleging fraud or mistake, the pleader must state with
particularity the circumstances constituting the fraud or mistake.

● Requires more notice than Rule 8(a) but does not require
alleging detailed evidence.
Outline for Analyzing Motion to Dismiss for Failure to
State a Claim (12(b)(6))

1. Identify the issue, i.e. whether the motion to dismiss should be granted or denied.

2. State the standard of review on a 12(b)(6) motion.

3. State the rule for Rule 8(a) and rule explanation for “plausibility.”

4. Discuss the plaintiff’s allegations.

a. Identify (and disregard) the conclusory statements.

b. Then, treat the remaining factual allegations as true. Taken together, discuss whether they
raise a plausible inference that the plaintiff is entitled to relief. Compare/contrast with cases
if helpful.
This Week’s Objectives: 1/21, 1/23

● Reminder: Self-Assessment (no more than 1 page) - 2 extra credit

points
● Responding to the Complaint
○ Default Judgment
○ Rules 12(b)(1)-(7), 12(e), 12(f)
○ Answer: Rule 8(b) and (c)
● Review Civ Pro I Exam
● Start Rule 11
Other pre-answer motions

Other Rule 12(b) Motions, i.e. lack of SMJ, PJ, venue, insufficient process or
service of process

12(e) Motion for More Definite Statement

● Complaint “so vague or ambiguous” that D cannot reasonably prepare a

response.

12(f) Motion to Strike

● Complaint contains “redundant, immaterial, impertinent or scandalous

matter.”