1. Wed., Sept. 3

2. Bell Atlantic Corp. v. Twombly (U.S. 2007)

3. Did the plaintiffs state a claim?

4. Paragraph 51 “In the absence of any meaningful competition between the [baby bells] in one another’s markets, and in light of the parallel course of conduct that each engaged in to prevent competition from [locals] within their respective local telephone and/or high speed internet services markets and the other facts and market circumstances alleged above, Plaintiffs allege upon information and belief that Defendants have entered into a contract, combination or conspiracy to prevent entry in their respective local telephone and/or high speed internet service markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another.”

5. What 8(a)(2) violated then? Were the defendants not put on notice about the nature of the alleged agreement?

6. So what is the problem with the complaint then?

7. Is there enough evidence at the pleading stage to justify the burden of discovery on the defendant?

8. Souter: Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

9. Assume that the complaint had alleged a handshake agreement among the CEOs of the baby bells at a particular meeting and named the date. No evidence is offered at all. Is Twombly satisfied?

10. Did Sierocinski’s complaint satisfy Twombly?

11. Six months after the dismissal in Twombly, the plaintiffs’ lawyers find in the trash outside various baby bells’ offices memos indicating that the baby bells were intentionally coordinating their behavior in just the manner that the Twombly complaint suggested. They file a new complaint in federal court with this evidence described. What result?

12. Aschcroft v. Iqbal (U.S. 2009)

13. What are the alleged facts that the plaintiff claims entitle him to relief?

14. Does Iqbal state a claim?

15. Are the defendants put on notice about the subject matter of the suit?

16. What is wrong with the complaint then?

17. - P sues D for negligence in federal court - In his answer, D adds a counterclaim asking for the damages that D sustained due to P’s negligence in the same accident - Do the standards in Twiqbal apply to the allegations of P’s negligence in the counterclaim?

18. -Rule 8. General Rules of Pleading (a) Claim for Relief. A pleading that states a claim for relief must contain:...(2) a short and plain statement of the claim showing that the pleader is entitled to relief...

19. - P sues D for negligence in federal court - In his answer, D introduces the defense of contributory negligence - Do the standards in Twiqbal apply to the allegations of P’s negligence in the affirmative defense?

20. pleading special matters (fraud)

21. Rule 9. Pleading Special Matters... (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

22. Why the heightened pleading standards for fraud?

23. fraud - statement (omission if duty to speak) - of material fact - that is false (or misleading) - with knowledge of falsity often intent that plaintiff rely - reasonable reliance on statement by plaintiff - causation of damages

24. Does R 9(b) apply to affirmative defenses?

25. Why the exception in 9(b) for scienter?

26. Is there a tension between R 9(b) and Twiqbal?

27. Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

28. Are frivolous cases a problem?

29. (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

30. (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

31. (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

32. (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

33. (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

34. (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

35. 35 Murphy v. Cuomo (N.D.N.Y. 1996)

36. Does Murphy state a claim?

37. Does Murphy satisfy Twiqbal?

38. (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

39. 39 Each allegation in the complaint was prefaced with the following statement: “The following allegation is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery:”

40. Can a plaintiff lose at summary judgment and nevertheless have satisfied R11(b)(3) at the pleading stage?

41. Can a plaintiff defeat a motion for summary judgment and nevertheless have satisfied R11(b)(3) at the pleading stage?

42. (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

43. 43 The invocation of the drug statute was prefaced by the following: “We would like the law to be extended such that a private right of action should be read into this statute.”

44. 44 There is a non-frivolous argument for the drug statute’s having a private right of action, but it is never employed by the plaintiff.

45. 11(c)(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

46. 11(c)(4) - A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.

47. 11(c)(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b)(2)…