Quick Civ Pro Question

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ceereeus420
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Quick Civ Pro Question

Postby ceereeus420 » Thu Oct 06, 2011 9:28 pm

Is A motion to dismiss for a faiulre to state a claim because the statute of limitations has expired considered a 12(b)(6) motion?

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Eugenie Danglars
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Re: Quick Civ Pro Question

Postby Eugenie Danglars » Thu Oct 06, 2011 9:37 pm

ceereeus420 wrote:Is A motion to dismiss for a faiulre to state a claim because the statute of limitations has expired considered a 12(b)(6) motion?


You could do it that way, but you'd have to show factually which statute applies, factually prove time of service, etc. in your 12(b)(6) motion, and then you'd 12(d) would be kicked in and the Rule 56 summary judgment would apply, which probably would be bad for your motion. Instead, it's better to claim that the statute has expired in your answer.

Renzo
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Re: Quick Civ Pro Question

Postby Renzo » Fri Oct 07, 2011 12:02 am

It's more appropriate for a summary judgement/JMOL motion than a 12(b)(6). 12(b)(6) motions should be thought of as a "so what?" As in, "even if I did everything they say in their complaint, so what? There's nothing in there that is legally actionable!" Statute of limitations is generally an affirmative defense, which means it requires factual proof.

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ilovesf
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Re: Quick Civ Pro Question

Postby ilovesf » Fri Oct 07, 2011 11:20 pm

Renzo wrote:It's more appropriate for a summary judgement/JMOL motion than a 12(b)(6). 12(b)(6) motions should be thought of as a "so what?" As in, "even if I did everything they say in their complaint, so what? There's nothing in there that is legally actionable!" Statute of limitations is generally an affirmative defense, which means it requires factual proof.

you've been so helpful in a lot of the responses i've read on here, thanks!

Renzo
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Re: Quick Civ Pro Question

Postby Renzo » Sat Oct 08, 2011 11:28 pm

ilovesf wrote:
Renzo wrote:It's more appropriate for a summary judgement/JMOL motion than a 12(b)(6). 12(b)(6) motions should be thought of as a "so what?" As in, "even if I did everything they say in their complaint, so what? There's nothing in there that is legally actionable!" Statute of limitations is generally an affirmative defense, which means it requires factual proof.

you've been so helpful in a lot of the responses i've read on here, thanks!


I make up for it by being a raging jerk in others, so it nets out.

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TheFutureLawyer
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Re: Quick Civ Pro Question

Postby TheFutureLawyer » Sat Oct 08, 2011 11:50 pm

I'm gonna ask my own civ pro question now. What's the reasoning behind making 12b6 a 'dismissed with prejudice' action? I mean, it seems ridiculously harsh.

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Icculus
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Re: Quick Civ Pro Question

Postby Icculus » Sun Oct 09, 2011 12:18 am

TheFutureLawyer wrote:I'm gonna ask my own civ pro question now. What's the reasoning behind making 12b6 a 'dismissed with prejudice' action? I mean, it seems ridiculously harsh.

Normally the plaintiff gets one chance to amend the complaint before it is dismissed w/prejudice. The idea being if you can't get it right on the second chance you have nothing. Very rarely is the first dismissal w/prejudice.

Edit: I am basing this answer off my casebook reading, never actually asked a professor.
Last edited by Icculus on Sun Oct 09, 2011 12:20 am, edited 1 time in total.

Renzo
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Re: Quick Civ Pro Question

Postby Renzo » Sun Oct 09, 2011 12:20 am

TheFutureLawyer wrote:I'm gonna ask my own civ pro question now. What's the reasoning behind making 12b6 a 'dismissed with prejudice' action? I mean, it seems ridiculously harsh.


The reason for it is to deter frivolous litigation and "strike suits," and to encourage plaintiffs to be as clear as possible in their pleadings about what they think happened and what they want. One way to pressure a defendant to settle is to sue with an unintelligible or boilerplate complaint, so that you make them accrue lawyers fees in trying to figure out what the hell you are saying, and engaging in motion practice to compel you to clarify your pleadings (this happens a fair amount in state courts).

In practice, courts will grant leave to amend if it looks like your claim isn't completely bogus, but you may have made some technical pleading error, so it's not as if courts are just willy-nilly throwing out otherwise perfectly valid claims that for some technical failure in the pleading.

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Icculus
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Re: Quick Civ Pro Question

Postby Icculus » Sun Oct 09, 2011 12:21 am

Renzo wrote:
TheFutureLawyer wrote:I'm gonna ask my own civ pro question now. What's the reasoning behind making 12b6 a 'dismissed with prejudice' action? I mean, it seems ridiculously harsh.




In practice, courts will grant leave to amend if it looks like your claim isn't completely bogus, but you may have made some technical pleading error, so it's not as if courts are just willy-nilly throwing out otherwise perfectly valid claims that for some technical failure in the pleading.


This is a better explanation than mine.

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TheFutureLawyer
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Re: Quick Civ Pro Question

Postby TheFutureLawyer » Sun Oct 09, 2011 12:40 am

Renzo wrote:
TheFutureLawyer wrote:I'm gonna ask my own civ pro question now. What's the reasoning behind making 12b6 a 'dismissed with prejudice' action? I mean, it seems ridiculously harsh.


The reason for it is to deter frivolous litigation and "strike suits," and to encourage plaintiffs to be as clear as possible in their pleadings about what they think happened and what they want. One way to pressure a defendant to settle is to sue with an unintelligible or boilerplate complaint, so that you make them accrue lawyers fees in trying to figure out what the hell you are saying, and engaging in motion practice to compel you to clarify your pleadings (this happens a fair amount in state courts).

In practice, courts will grant leave to amend if it looks like your claim isn't completely bogus, but you may have made some technical pleading error, so it's not as if courts are just willy-nilly throwing out otherwise perfectly valid claims that for some technical failure in the pleading.


With the exception of Iqbal (and maybe Twombly)? I get why SCOTUS ruled the way they did (though I don't exactly agree with it, mostly because it's made my exam just that much harder), but should cases like those really be dismissed with prejudice? It also seemed dumb how they tried to say "We are not creating a heightened pleading standard" when that is precisely what they just did.

Renzo
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Re: Quick Civ Pro Question

Postby Renzo » Sun Oct 09, 2011 12:39 pm

TheFutureLawyer wrote:
Renzo wrote:
TheFutureLawyer wrote:I'm gonna ask my own civ pro question now. What's the reasoning behind making 12b6 a 'dismissed with prejudice' action? I mean, it seems ridiculously harsh.


The reason for it is to deter frivolous litigation and "strike suits," and to encourage plaintiffs to be as clear as possible in their pleadings about what they think happened and what they want. One way to pressure a defendant to settle is to sue with an unintelligible or boilerplate complaint, so that you make them accrue lawyers fees in trying to figure out what the hell you are saying, and engaging in motion practice to compel you to clarify your pleadings (this happens a fair amount in state courts).

In practice, courts will grant leave to amend if it looks like your claim isn't completely bogus, but you may have made some technical pleading error, so it's not as if courts are just willy-nilly throwing out otherwise perfectly valid claims that for some technical failure in the pleading.


With the exception of Iqbal (and maybe Twombly)? I get why SCOTUS ruled the way they did (though I don't exactly agree with it, mostly because it's made my exam just that much harder), but should cases like those really be dismissed with prejudice? It also seemed dumb how they tried to say "We are not creating a heightened pleading standard" when that is precisely what they just did.


I personally agree with you on both points (that they did raise the pleading standard, and that it's probably a bad idea). But, the Court would probably say that the answer is to do a little investigation on your own dime, and to not bring your complaint until you are ready. Then it won't be dismissed, and you won't be bothering defendants with frivolous claims. After all, they're not requiring you to prove the facts you allege, but only that you allege enough unproven facts to make a case.

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TheFutureLawyer
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Re: Quick Civ Pro Question

Postby TheFutureLawyer » Sun Oct 09, 2011 2:10 pm

Renzo wrote:I personally agree with you on both points (that they did raise the pleading standard, and that it's probably a bad idea). But, the Court would probably say that the answer is to do a little investigation on your own dime, and to not bring your complaint until you are ready. Then it won't be dismissed, and you won't be bothering defendants with frivolous claims. After all, they're not requiring you to prove the facts you allege, but only that you allege enough unproven facts to make a case.


I was just thinking, how does a res ipsa case get through this standard? By definition, you don't really know the facts, so you can only make conclusory allegations.

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YourCaptain
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Re: Quick Civ Pro Question

Postby YourCaptain » Sun Oct 09, 2011 2:15 pm

TheFutureLawyer wrote:
Renzo wrote:I personally agree with you on both points (that they did raise the pleading standard, and that it's probably a bad idea). But, the Court would probably say that the answer is to do a little investigation on your own dime, and to not bring your complaint until you are ready. Then it won't be dismissed, and you won't be bothering defendants with frivolous claims. After all, they're not requiring you to prove the facts you allege, but only that you allege enough unproven facts to make a case.


I was just thinking, how does a res ipsa case get through this standard? By definition, you don't really know the facts, so you can only make conclusory allegations.


With a res ipsa you normally have an idea of what happened. If the only way that Plaintiff could have suffered the injury is that someone threw the chair out the window from the hotel, then stating that as a fact that leads to a plausible inference will survive a Twiqbal 12B6. The issue in Twombly and Iqbal was that they were both fairly speculative claims; there were other equally plausible reasons for the conduct that Plaintiffs alleged in Twombly, whereas in a res ipsa you simply don't have enough information to prove exactly how it happened but you can fairly easily construct the point of injury.

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Eugenie Danglars
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Re: Quick Civ Pro Question

Postby Eugenie Danglars » Sun Oct 09, 2011 6:00 pm

The way my prof explained it was that the alleged explanation had to be more plausible than other explanations. So when a barrel of flour falls on your head, it's more plausible that it was negligently allowed to roll out the window than aliens dropped it on you from the spaceship because your dog peed on their flowers. With Iqbal, the explanation alleged without factual support wasn't more plausible than others.




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