January 11, 1999

NEW TOPIC: Ch 5 – Pleadings

Read 223 – 236 (read for orientation purposes)

Do Problem A page 237

Read cases on page 238

Rule 8 – seems straight forward

Order of events:

1. P files a motion
2. D can either:

1. default
2. motion practice
3. 12(g)(6) demurrer (failure to state a cause on which relief can be granted)

1. D can then file either:

1. a denial (anything not effectively denied is deemed admitted)
2. admit
3. also affirmative defenses (example is contributory negligence)

1. now can begin process of discovery
2. issues only if they are pleaded and effectively denied
3. burden then shifts back to plaintiff

145 possible points last year

highest grade was 138; lowest was 36

January 13, 1999

Pleading stage

• no burden of production – just testing case for legal sufficiency (should the case go forward as a matter of law?)
• major premise – a theory of law upon which the case proceeds; minor premise is the facts (All dogs love opera; Fido is a dog; therefore Fido loves opera)

Conley – says all you need is a theory not a statement of facts

Dioguardi – seems to say all you need is a statement of facts not a legal theory

Claim – P makes case clear so that D knows of nature of the claim

Cause of action –

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January 15, 1999

Problem B

1. – motion to dismiss granted
2. – motion to dismiss denied (Jimenez thinks motion should be granted)
3. – denied; this is the first example that is close enough to Form 9 on page 241

can only consider for corners of complaint when looking at motions. Cannot consider what type of defendant is involved.

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January 20, 1999

Fox v. Lummus Company, 524 F. Supp. 27 (1981) p243

First claim

• breach of contract – says plaintiff
• defendant contended motion to dismiss because even if P proves his claim he is still not entitled to recovery. Because what he is contesting is what he contracted for

Second claim:

• quasi contract, quantum meruit (only when there is no contract)
• since there is a contract here, there can be no claim for quasi contract

Third claim:

• unjust enrichment
• 12(b)(6) granted – no set of facts can be proven that would support this claim

Fourth claim:

• emotional distress
• D made a motion to strike (Rule 12f) – can strike out certain words from a pleading if they are redundant, scandalous, etc.

When plaintiff has the facts, the court expects the plaintiff to give more of that information.

Rule 8 – IMPORTANT

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January 22, 1999

Can a 12b6 motion be based on the reality that it was someone else . . .

Rule 9 – deny that you did something

Dramshop act - ???

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January 25, 1999

NO CLASS FRIDAY

Pick up exams in his office NOW

Rule 9(b) –

Review of SWEENY:

Could have done a 12(e) motion – motion for a more definite statement

P sued for fraud. Problem was that his complaint was not very specific. This case is a balancing between Rule 8 and Rule 9(b)

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January 27, 1999

Smith v. Debartoli

Special damages must be specifically state in a pleading (rule 12(g))

Want to put defendant on due notice of charges filed against him.

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February 1, 1999

Lambert v. Southern Counties Gas CO.

• pleaded themselves out of court
• because in their complaint they included themselves (through the lessees) as one of the defendants
• pleaded the negligence of the bulldozer operators – which can be imputed to the leasors
• shows that they were contributorily negligent
• what would be the results under the FRCP? à under rule 8(e)(2) if one of the allegations made independently is sufficient the pleading is not made insufficient be the insufficiency of one or more of the alternative statements
• breach of contract v. quantum meroiut – conflict is for breach you have to prove there was a contract, and in quantum you have to show there was not a contract

there will be 10 multiple choice questions on final dealing with rule 12 – has defense been waived or has it not?

• if you do it by motion, must do it before you plead
• if by 12g must raise all defenses jointly
• objections based on 2-5 would be waived by virtue of 12h1, 12h3 preserves 1, 12h2 preserves 6 and 7
• make sure you are familiar with rule 12 for final

failure to effectively deny is deemed to be an admission

negative pregnant – a negative which is pregnant with an admission; hard to know which part is false and which is true; can be misleading and therefore ineffective denial and therefore should be struck

• if you want to deny the whole thing you say "defendant denies each and every one of plaintiff’s allegation" if not then admit what you want to admit and deny the balance

safe side is to include the degree of particularity allowed by your personal knowledge