A bit unclear, still, as to modern pleading requirements

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sangr
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A bit unclear, still, as to modern pleading requirements

Postby sangr » Sun Sep 30, 2012 12:14 am

hey guys

so P must merely give defendant fair notice of his claims and the grounds upon which it rests. No detailed facts are necessary.
so wtheck is it really? i feel as if theres no real standard

which of these two? (the difference as you would see, is that 2 specifies "WHY" he was negligent. first one merely says he was negligent)

1) D negligently operated a car and thus P was injured, resulting in 400 dollars of damage
2) D negligently operated a car, by going too fast, and P was injured, resulting in 400 dollars of damage

or are these both not quite on the target?

Asleep
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Re: A bit unclear, still, as to modern pleading requirements

Postby Asleep » Sun Sep 30, 2012 2:33 am

My impression is that the second statement is what is needed. While you don't need detailed facts, the claim cannot be purely conclusatory. Saying someone acted negligently seems to me to be purely conclusatory.

The Duck
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Re: A bit unclear, still, as to modern pleading requirements

Postby The Duck » Sun Sep 30, 2012 9:43 am

Asleep wrote:My impression is that the second statement is what is needed. While you don't need detailed facts, the claim cannot be purely conclusatory. Saying someone acted negligently seems to me to be purely conclusatory.


This. Although you want to make sure you plead enough facts to survice a Twombly/Iqbal challenge. Even though not required, you will generally see a much more detailed pleading then statement #2. For example, is the fact he was going too fast conclusory? Some would argue yes. So, then you'd plead operating in excess of 50 mph in a 25 mph zone, etc. If you didn't want/know the speed, you'd plead something like "Defendant operated his vehicle in excess of the speed limit and failed to adequately control his vehicle."

The requirement is more to prevent you from having to plead every detail you plan to prove. In statement #1, defendant wouldn't know how he is alleged to have operated negligently and therefore it isn't specific enough to give fair notice. Statement #2 is closer, but if the court decided going too fast was conclusory and struck it, you'd be back to statement #1.

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Veyron
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Re: A bit unclear, still, as to modern pleading requirements

Postby Veyron » Sun Sep 30, 2012 10:34 am

A bit unclear, still, as to modern pleading requirements


So are the courts.

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buckythebadger
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Re: A bit unclear, still, as to modern pleading requirements

Postby buckythebadger » Sun Sep 30, 2012 12:21 pm

The Duck wrote:
Asleep wrote:My impression is that the second statement is what is needed. While you don't need detailed facts, the claim cannot be purely conclusatory. Saying someone acted negligently seems to me to be purely conclusatory.


This. Although you want to make sure you plead enough facts to survice a Twombly/Iqbal challenge. Even though not required, you will generally see a much more detailed pleading then statement #2. For example, is the fact he was going too fast conclusory? Some would argue yes. So, then you'd plead operating in excess of 50 mph in a 25 mph zone, etc. If you didn't want/know the speed, you'd plead something like "Defendant operated his vehicle in excess of the speed limit and failed to adequately control his vehicle."

The requirement is more to prevent you from having to plead every detail you plan to prove. In statement #1, defendant wouldn't know how he is alleged to have operated negligently and therefore it isn't specific enough to give fair notice. Statement #2 is closer, but if the court decided going too fast was conclusory and struck it, you'd be back to statement #1.


I'm pretty sure when test day comes, it's going to be number 2. The Ashcroft case said that a claim that offers labels and conclusions or a recitation of the elements will not be sufficient. You need to make it plausible that the plaintiff was negligent. Nothing in the first statement shows that P was negligent. Now how much info you need to make it plausible is where it starts to become tricky

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Jsa725
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Re: A bit unclear, still, as to modern pleading requirements

Postby Jsa725 » Sun Sep 30, 2012 3:07 pm

.
Last edited by Jsa725 on Wed May 07, 2014 9:19 pm, edited 1 time in total.

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hichvichwoh
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Re: A bit unclear, still, as to modern pleading requirements

Postby hichvichwoh » Sun Sep 30, 2012 3:10 pm

Jsa725 wrote:
The Duck wrote:
Asleep wrote:My impression is that the second statement is what is needed. While you don't need detailed facts, the claim cannot be purely conclusatory. Saying someone acted negligently seems to me to be purely conclusatory.


This. Although you want to make sure you plead enough facts to survice a Twombly/Iqbal challenge. Even though not required, you will generally see a much more detailed pleading then statement #2. For example, is the fact he was going too fast conclusory? Some would argue yes. So, then you'd plead operating in excess of 50 mph in a 25 mph zone, etc. If you didn't want/know the speed, you'd plead something like "Defendant operated his vehicle in excess of the speed limit and failed to adequately control his vehicle."

The requirement is more to prevent you from having to plead every detail you plan to prove. In statement #1, defendant wouldn't know how he is alleged to have operated negligently and therefore it isn't specific enough to give fair notice. Statement #2 is closer, but if the court decided going too fast was conclusory and struck it, you'd be back to statement #1.


This. In addition:

OP: read 550 U.S. 544 (2007) & 129 S. Ct. 1937 (2009) these two cases set the stage for clarifying the meaning of FRCP 8(a)(2) in order for a complaint to survive 12(b)(6) motion to dismiss

TL;DR version:

Twombly : This plausible entitlement standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” The plaintiff must provide some factual allegations in the complaint that “raise a right to relief above the speculative level.”

Iqbal: a complaint must be "plausible on its face" to survive a motion to dismiss. Facial plausibility means a “reasonable inference that the defendant is liable for the misconduct alleged.” The Court noted that “the Rule does call for sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”


What makes the whole thing even more unclear is that courts will often cite twombly or iqbal when in fact they mean either, both, or neither.

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Royal
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Re: A bit unclear, still, as to modern pleading requirements

Postby Royal » Sun Sep 30, 2012 3:34 pm

In practice, every defendant is going to move for a 12(b)(6) and claim that plaintiff's pleading is "conclusory" and rests on "threadbare recitals" of the cause of action. So as a plaintiff, knowing this is coming, you want to include facts that dress up the complaint so it doesn't simply look like "defendant owed a duty of care to plaintiff when operating his Weinermobile," etc. Before filing a complaint, it would be good to look up similar cases where the complaint survived a 12(b)(6)/judgment on pleadings (functionally same thing but filed after answer) and pull the complaint to see how they structured it. Then you have precedent to fall back on in your response to the 12(b)(6).




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