Motion to Dismiss for Lack of jurisdiction over the person
INDIVIDUALS (green book page 40)
Rule 12.b.2 “shall be asserted in the responsive pleading…except the following may be made by motion; ..(2) lack of jurisdiction over the person”.
Rule 12.h.1 a defense of lack of jurisdiction over the person…is waived (A) if omitted from a motion [12.g-if make motion from this rule must add any other rule 12 motions or waive] or (B) if neither made by motion or in responsive pleading or an amendment thereof permitted by rule 15(a) [amended and supplemental pleadings p. 50].
Reason for motion; courts must have power to bind the parties or hearing the case would be moot.
Federal v. state court; federal courts must follow state court rules for this, except bulge jurisdiction rule 4.k.
Questions to ask;
| TRADITIONAL BASIS FOR PERSONAL JURSIDCTION (must be true at beginning of trial) | Minimum contacts test? | ||
| in rem- case about property ($ in judgment limited to value of property, harris v. balk) | NO | ||
| quasi in rem – not case about property, but use property to bind anyway. must sequester/garnish it to get jurisdiction. | YES –shaffer v. heitner | ||
| in personam- i. served with process- pennoyer “court has power over people physically inside the state”. Because of natural sovereignty. See rules of service. Burnham upheld (but plurality) ii. domiciled-court has power over people who are citizens of it’s govt. mas v. perry domicle is “true fixed and permanent home, to which you have intention to return when absent”. [can’t lose old domicle, unless get new one]. Factors; physical presence, intent to remain (home ownership, driver’s license, taxes, voting, job, marriage, mailing address, community involvement, students). iii. consent- x. express-contract (not choice of law clause), statute (require do business to register with secretary of state). xx. implied-statute (require notice) hess v. polowski dangerous cars xxx. waiver- 12.h.1 see above. | NO- burnham | ||
| YES | |||
| YES | |||
| LONG ARM STATUTE – (some statute just say to degree permitted by due process –skip to minimum contacts test) i. Is the statute satisfied?
| YES |
Motion to Dismiss for Lack of jurisdiction over the person
CORPORATIONS (green book page 40)
Rule 12.b.2 “shall be asserted in the responsive pleading…except the following may be made by motion; ..(2) lack of jurisdiction over the person”.
Rule 12.h.1 a defense of lack of jurisdiction over the person…is waived (A) if omitted from a motion [12.g-if make motion from this rule must add any other rule 12 motions or waive] or (B) if neither made by motion or in responsive pleading or an amendment thereof permitted by rule 15(a) [amended and supplemental pleadings p. 50].
Reason for motion; courts must have power to bind the parties or hearing the case would be moot.
Federal v. state court; federal courts must follow state court rules for this, except bulge jurisdiction rule 4.k.
Questions to ask;
| TRADITIONAL BASIS FOR PERSONAL JURSIDCTION (must be true at beginning of trial) | Minimum contacts test? | ||
| in rem- case about property ($ in judgment limited to value of property, harris v. balk) | NO | ||
| quasi in rem – not case about property, but use property to bind anyway. must sequester/garnish it to get jurisdiction. | YES –shaffer v. heitner | ||
| in personam- i. D incorporated in the forum? (citizen/domiciled) ii. was D doing business in the forum (physical presence in jurisdiction)- x. substantial contacts, systematic and continous (mcgee life insurance CA) xx. physical presence of employees (int. shoe) xxx. sought out business (mcgee case/life insurance/mail) iii. consent- x. express-contract (not choice of law clause-carnival cruise-ticket says jurisdiction ok in ….ct upheld), statute (require do business to register with secretary of state or appoint other agent). xx. implied-statute (require notice) hess v. polowski dangerous cars or statute above (and fails to do so, then implied consent) xxx. waiver- 12.h.1 see above. | NO | ||
| NO | |||
| YES | |||
| LONG ARM STATUTE – (some statute just say to degree permitted by due process –skip to minimum contacts test) i. Is the statute satisfied?
| YES |
MINIMUM CONTACTS TEST: INTERNATIONAL SHOE:CONSTITUTIONAL TEST
Due process clause of constitution
1. does party have Minimum contacts with forum so that jurisdiction would not offend traditional notions of fair play and substantial justice?
(if weak on purposeful availment bolster argument with reasonableness.)
A. purposeful availment
1. Do these factors apply to the actions that got the D into trouble? (specific jurisdiction).
2. If not, could the actions that D had be so numerous they give rise to general jurisdiction?
-D anticipate/foresee being haled into court in this forum?
-Did D seek to serve residents of this forum?
-Did D have fair warning (that activity would subject to jursiction)?
-Unilateral contact with jurisdiction (d’s action or just p’s)
-stream of commerce?
-contacts systematic, continous?
-reap benefits and privileges from forum state?
-purposefully direct activities at forum
-was the forum the focal point or target of d’s actions? Or of harm (effects test)
B. reasonableness (must have some A, to get jurisdiction)
Is the exercise of jurisdiction consistent with traditional notiosns of fair play and substantial justice? Burger king.
a. what was the burden on D to defend in forum?
b. where are the witness and other evidence located?
c. does the forum have an interest in opening its courts to its citizens?
d. does the forum have an interest in regulating specific conduct of D?
e. is there an alternate forum?
f. would jursidicton advance interstate judicial efficiency?
g. would jursidction advance the shared interest of the several states in furthering substantive social policies?
2. Adequate notice and opportunity to be heard?
a. notice;
actual
constructive
b. opportunity to be heard
pre-seizure hearing (quasi-in-rem proceedings).
| Purposeful availment/ personal jurisdiction arguments | ||
| Broad (yes jurisdiction) | | Narrow (no jurisdiction) |
| | Service of process | |
| Traditional theory of power over people in jurisdiction, established long ago and based on the notion that each state has sovereignty over natural persons, corporate entities and land within its boundaries. Person is always subject to the power of its state in which it is a citizen. | Pennoyer v. neff | Must have power from beginning |
| Scalia revives pennoyer. Physical presence one time in CA is good enough because tradition says ok. International shoe applies only when D is physically absent. (int. shoe operates as a substitute for physical presence). | Burnham –last word from supreme court. Plurality Re; dad visiting children when served. | Plurality opinion. Shaffer said all PJ go through international shoe As to VW chattel cannot be service of process- here person not a thing. |
| | domiciled | |
| Circumstantial evidence; home ownership, where pay taxes, voter registration, nature of job, marriage, mailing address, involved in community, member of religious community, marriage to a citizen of forum, | Mas v. perry; true fixed and permenant home to which you have the intention to return to when you are absent | Renter, student, don’t pay taxes, don’t vote here, job is not career, job entails moving a lot, not involved in community, not go to church, etc. |
| | D’s consents to jurisd. | |
| Statute non-residents pay fee and appoint agent for service of process EXPRESS CONSENT | Kane v. NJ | |
| IMPLIEDLY CONSENT Here motor vehicle very dangerous machine, so state can reach outside there boundaries. Can be statute or if statute like kane and don’t fulfill, then implied. | Hess v. pawloski – Extends kane | Maybe can’t extend to another situation if not “dangerous machines’. |
| Physical presence of employees, agents, if headquartered, advertise | Corporation doing business in forum | Not headquartered, no or limited physical presence of employees/agents |
| | Long arm statute | |
| Gray v. American radiator Look at intent of legislature, even if doesn’t fall exactly into language “intent should be determined less from technicality of definition then from considerations of general purpose and effect” | | Feathers v. mclucas (explicitly disagrees with gray) . language of statute so plain one cannot construe it to mean anything differently. |
| | Purposeful availment | |
| Stream of commerce (outer limit, by putting values into the stream of commerce d k nows that it could end up anywhere that streams takes it. | gray v. American radiator | |
| | Shaffer v. heitner | “all assertions of state court jurisdiction must be evaluated according to the ‘minimun contacts’ standards from int. shoe. “ |
| McGee (life insurance) 2 years only mailing checks each month | Continuous and systematic | International shoe 4 years and employees always in |
| | Hanson v. denkla | Unilateral cannot satisfy contact with foreign state. |
| If you seek to serve a market and put our chattel in stream of commerce then foreseeable to be sued wherever chattel is. | World wide volkswagon | Can’t make chattel itself agent for service |
| Particular forum must have been target. If D’s aims at particular forum could effect other citizens of the forum. Also if don’t like result of test; say not supreme court case, not representative of calder or keeten. So shouldn’t use at all. | IMO industries | 3 prong test; 1. intentional tort 2. effects test (brunt of harm) 3. forum d’s target |
| Selling 10-15,000 magazines, regularly monthly was not “random, isolated or fortuitious” (even though that was only 12% of sales) | Keeton v. hustler | |
| Effects test; focal point at which brunt of harm is directed. Harm to P | Calder v. jones | “why broaden after just narrowing in VW? Some say because this was defamation-underlying nature of dispute and shouldn’t expand that rule. |
| | Burger king | Foreseeability, purposeful availment isn’t only test, should add reasonableness test as well. McGee/Traveler’s heath; Subjects were life and health insurance. Much different shouldn’t have expanded to this case. |
| Brennan (concurrence) here it is unreasonable, so no PJ, but stream of commerce should be enough. and this holding goes against gray v. American radiator. | asahi | “although courts have held both ways, the better holding is that a D has to do more then just put his product in the stream of commerce” he needs purposeful direction. (additional facts that suggest something in the forum special for this party). |
| | Pavlovich v. superior court | Brennan says if no purposeful availment no amount of reasonableness can make up for that. Baxter- enough that knew harm industry Brown-has to be more. |
| Inconvienience of P suing elsewhere | Reasonableness; use to add to sketchy purposeful availment. (but can’t use alone) | Burden to d of defending in that forum |
| | Witness and evidence located? | |
| Life insurance, health insurance, severe injury | Forum have interest in protecting citizens P | |
| dangerous automobiles, | Does forum have interest in regulating conduct of D | |
| no | Alternate forum | yes |
| yes | Advance interstate judicial efficiency? | no |
| | Advance shared interest of several states in furthering substantive social policies | |
| yes | Notice and opportunity to be heard | no |
Motion to dismiss because of subject matter 12.b.1 or personal jurs. 12.b.2.
Where there are more then two parties.
Supplemental jurisdiction;
1. does the court have the power to exercise jurisdiction at all? (if you don’t have complete diversity then allapatah says you can make up for that in supplemental jurisdiction.)
See SMJ
2. is so does the court have the power to exercise jurisdiction over the additional parties?
Same case or controversy -1367.a.
Means “common nucleaus of operative fact- gibbs
Means “same transaction or occurrence- from ??
Three tests;
| Broadest (yes jurisdiction) | | Narrowest (no, jurisdiction) |
| Logical relationship; | Same evidence; if claims so connected that we use the same evidence then we don’t need to bug state courts, we can hear it in fed. claim with the other claim | Same primary right, same primary wrong, or same legal theory. To argue against logical relationship; test 3 is old under pleading and modern rule is this one. |
3. for diversity of citizenship cases, 1367.b
Federal court shall not have supplemental jurisdiction over D who join under rule 14, 19, 20, 24
…not supplemental jurisdiction over P who join under 19 or 24
allapatah said ok P to join under rule 18, 20,
| broad | Allapatah | narrow |
| Said ok to join p under rule 18, 20 because 1367.b didn’t specifically mention those “plain language”. | Reasons for dissent; -maybe poor little girl who had terrible injuries. -class action fairness act that lets fed. courts have jurisdiction over class actions suit if over 5 million and ok’s minimal diversity, but didn’t apply retro to this case. Facts; | Dissent says; you can read 1367.b another way that is less disruptive to our system as a whole. That no reason to distinguish between voluntarily (ok juris) and compulsory (no juris). Also should still uphold complete jurisdiction here. |
also; if one member of class (rule 23) meets diversity and amount in controversy you’ve got original jurisdiction. –allaphatah
4. does the Federal court have discretion to decline jurisdiction?
1367.c yes if…
1. novel or complex issue of state law
2. claim substantial predominates over claims which district court has original jurisdiction
3. district court has dismissed all claims over which it has original jurisdiction. or
4. exceptional circumstances and compelling reasons
5. should they?
| Broad | policy | narrow |
| Protect D/P against local bias Efficiency, lower cost to try at once | | If using 1367.c -if used broadly then defeat the purpose of diversity jurisdiction. |
Notice of removal jurisdiction to state court, then federal court would consider on motion for lack of SMJ and PJ?
Removal jurisdiction
(28 USC §§1441, 1445,1446,1447)
D may remove if federal court would have SMJ over a case. 1441.a
ANY fed. question 1441.b.1
If joined to fed. question; 1441.c joinder of cause. Court may
| Broad For FED JURISDICTION | | Narrow FOR KEEPING IN STATE | |
| Hear entire case | Split matter and hear only federal element | Remand matters where state law predominates | |
| D’s should be able to choose forum too. Efficient and cheaper | Costs more money and more time to have two cases tried in two courts | Preserves limited jurisdiction of fed. court, while keeping fed. law | Preserve limited subject matter jurisdiction of fed. courts |
| | Requirements for removal | Exceptions; When can’t remove | |
| | If diversity case and more then 1 D, then all D’s must remove together. | IF ANY D RESIDED IN | |
| | Must file notice; served to parties and court; | Railroad cases 1445 | |
| | Time limits; 30 days from when D gets notice. 30 days from when Fed JS becomes apparent (if change) | Common carriers if amount is 10,000 or higher. 1445 | |
| | One year limitation on removal cases. | State workers compensation cases | |
| | After removal; District court can remand at any time if appears there is no SMJ (before final judgment) 1447.c | *Sanctions will apply if notice of removal without merit 1447.c | |
| | After removal; if after joinder SMJ is destroyed (no more complete diversity) then court may deny joinder or remand case to state court. | | |
| Federal court | Why parties might want … | State court | |
| Local bias | | Lawyers more comfortable here | |
| | SOL might be different | | |
| | Jury might be drawn from different places | | |
Motion to dismiss 12.b.3 for improper venue
28 USC §1391
Venue; the place where the power should be exercised-not issue of actual power of court to bind- but where lawsuit should be held.
| For diversity cases | For federal question cases or mixed |
| 1. where D resides (if all d’s reside in same state) (corporate d’s-any where they are subject to PJ) (if d’s in different states, then P must sue in 2) 2. where substantial events occurred or where subject property is located 3. any district which has personal jurisdiction over D’s when action is brought | 1. where D resides (if all d’s reside in same state) (corporate d’s-any where they are subject to PJ) (if d’s in different states, then P must sue in 2) 2. where substantial events occurred or where subject property is located or 3. in any district where one D may be found. |
Exceptions;
Venue is waived if not objected to §1406.
Motion to dismiss must be made BEFORE answer is sent or
IN answer itself
Rule 12.h waiver or preservation of defense
Factors influencing venue.
1404; Change of venue p.258. when proper for convenience or when improper to correct.
Motion to dismiss 12.b.1 lack of subject matter jurisdiction- *Never waived and can be raised by court
| Federal court | State court- |
| Exclusive jurisdiction over; patent, bankruptcy, copyright | Most are courts of general jurisdiction so they can hear any type of dispute. |
| Limited jurisdiction over; Federal question or diversity cases. | Limited subject matter jusridiction; small claims, juvenile, probate, etc. |
| Policy; limited because of federalism, worried about states rights v. power of federal govt. and ability of states to govern locally. From; article 3 § 2. the judicial article of the The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties …to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 11th amendment of the | |
| No jurisdiction on family matters, alimony, divorce, custody etc. | |
| Two ways to get into federal court (except exclusive jurs) | |
| Federal question | Diversity of citizenship |
| 28 U.S.C. §1331 | 28 USC 1332 |
| Civil actions arising under the | Diversity between parties- requires minimal diversity, but courts have limited their own power by interpreting this statute to mean complete diversity by (strawbridge v. curtis). One exception interpleader rule 22 |
| Complete diversity- means can’t have same state on both sides of v. | |
| Diversity fulfilled by; domicile or citizenship; determined as of the day of commencement of action. Not destroyed by later actions of parties. Corporations; incorporated and principal place of business 28 U.S.C. § 1332.c.1 | |
| Domicle; change requires both physical presence and intent to remain indefinitely (mas v. perry see personal jurisdiction sheet for arguing). Party keeps domicile until gets new one (scoggins v. Pollock) Aliens; permenant residence | |
| Must arise in well-pleaded complaint As long as it is essential element in complaint oK Doesn’t have to be express | AND amount in question-More then 75,000. -measured at time of commencement of action -one p can add all claims against one d to meet -amount claimed must be made in good faith -and permitted in recovery (not capped by statute etc) |
| D’s anticipated defense, which D may or may not choose to assert DOES NOT COUNT | |
Motion to dismiss 12.b.6. on grounds of claim preclusion or issue preclusion
| Claim preclusion – res judicata | | Issue preclusion – collateral estoppel | |||
| final valid judgment on the merits will prevent parties and those in privity with them from relitigating the entire claim. | definition | A final judgment on the merits will prevent parties and those in privity with them from relitigating the same issue. | |||
| 1. final judgment on the merits -proper SMJ and PJ -final judgment (except for execution or appeal) -judgment on merits (?dismissal but default/consent ok) | elements | 1. final judgment on the merits Same as claim preclusion, but narrower in application (by #4). | |||
| 2. same parties (and others in privity) - same as claim preclusion | |||||
| 2. same parties (and others in privity) -same parties; must have been in first litigation -privity; immediate family, employer/employee, legal representative etc.. -insurance companies or others controlling lawsuit, even if name isn’t in suit | 3. identical issue in new claim | ||||
| 4. issue was actually litigated -default judgment or consent not ok -uncontested motion for summary j, not ok -admission in pleading not ok | |||||
| 3. same claim barred (and all issues that should have been or where litigated) -available theories are all barred, if one litigated -tests; | 5. finding was necessary to outcome of judgment. Not apply to incidental or irrelevant issues. | ||||
| Same evidence? | Would 2d action destroy 1st judgment? | Same legal theory/primary right or wrong | Transaction test; modern and broadest; sufficiently factually related that could have been brought in 1st suit. | 6. fairness- -adequate representation in first action -small amount in controversy compared to this one.(like small claims court etc) -apparent compromise of jury in first action | |
Erie Doctrine; Choice of law in federal court in diversity cases
1. Is the federal court trying to decide between applying a state law, practice or rule and a federal law, practice or rule? If yes, then
2. actual clash; is this a situation where the federal rule is on point or covers the situation? (under rules enabling act fed. rules of civ. Procedure). If yes, go on, if no go to 4.
3. Procedural v. substantive; In a direct clash, use the hanna analysis. Ask Is the federal rule arguably procedural? NO, apply state. Yes, then say federal rules have never been found to be unconstitutional. So then apply federal rule
Guaranty trust co v.
-process rules are procedural and need not yield to state rules, legitimate exercises of federal power. Hanna v. plumer
4. if, no then
| Federal interest in applying state law; Uniformity and independence of federal court | State interest in having it’s law applied | Average litigant’s interests (not the specific parties in this case) Twin evils | |
| | | Would this encourage bad forum shopping? | Would this be unequal administration of law? |
5. final question would application of this federal practice undermine the “twin evils” of
Rule 18; joinder of claims “a party may join as many independent or alternate claims as it has against opposing party(s) including;
Original claims counterclaims cross-claims third party claims.
| Subject Matter jurisdiction | |
| When based on diversity | When based on federal question |
| P can aggregate all claims against D to satisfy the amount in controversy | Non federal claim can be joined only if it is party of the same case or controversy (see supplemental jurisdiction test). |
Policy; to permit adjudication of all claims between parties and all claims arising out of a single transaction
Unrelated claims; can claim unrelated claims but under rule 42.b. the court can separate unrelated claims for trial and they are not precluded from future litigation.
Related claims; Rule 18 says parties “may join” related claims, but they don’t have to.
However, res judicata/preclusion might be affected.
These rules only deal with whether claims can be joined, not if they are legitimate.
Rule 20 Permissive joinder of parties
A. All persons may join as a P or D if they assert or are subject to any right to relief
That arise out of the “same transaction or occurrence test” (see supplemental jursidction)
AND has a question of law or fact in common to all co-parties in action (for example; if you are guilty of neg. and you think third party is contributorily neg. you can join that party)
B. separate trials; court may order separate trials to prevent party from being embarrassed, delayed prejudiced.
C. Rule 20 does not override operation of other joinder restrictions such as SMJ and PJ so check for those too.
D. Rule 20 permits initial joinder of parties (P, and D1, D2) in one lawsuit (all involved in same accident claim). Then once parties are joined, P can assert other claims against opposing party (rule 18).
Judgments can be given to one or more p’s or against one or more D’s. Doesn’t have to be for All ps, against all ds.
Rule 19 compulsory joinder
a. persons to be joined.
requirements;
joined parties must be subject to PJ and
joinder can’t destroy SMJ
3rd party may be joined if; complete relief cannot be accorded to present parties without 3rd party or
3rd party claims a related interest in action and absence from the suit might; impair that interest or leave any of the present parties subject to double liability or inconsistent verdicts.
b. determination by the court whenever joinder is not feasible
if 3rd party is indispensable and cannot be joined, court can dismiss
factors to consider;
extent of prejudices to present party
extent to which those prejudices can be avoided by other means
adequacy of judgment w/o 3rd party
will P have adequate remedy if case dismissed for non-joinder.
Rule 14 (impleader)
a. 3rd party claims provide a procedure for resolving both claims in one lawsuit.
| P1 V. | D | |
| | 3rd party P v. | 3rd party D |
| consumer | store | manufacturer |
b. D is 3rd party P and D2 so, 3rd party complaint must allege that 3rd party D is liable to 3rd party P not P1.
c. rule 14.a expressly permits 3rd party D to make claim against P (so long as same transaction or occurrence)
d. rule 14.a says once p makes claim against 3rd party D, 3rd party D must react in conformation with rule 13 which requires assertion of related counterclaims.
Motion: To Dismiss for lack of subject matter jurisdiction (green book page 40) interaction with Rule 13 Counterclaim and Cross-Claim (green book page 47)
Rule 12.b.1 = …shall be asserted in the responsive pleading,…except that the following may be made by motion; (1) lack of jurisdiction over subject matter.
Rule 12.h= Can file ANY time …whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
Reason for motion; To protect the limited scope of the federal courts.
Questions to ask;
1. does this claim or issue have independent jurisdiction? (permissive)
2. if not, is this a compulsory claim? (if counterclaim)
Rules and cases supporting this;
| Rule 13; compulsive counterclaim (gn bk p47) Pleading shall state any claim against opposing party that “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Unless…” Reason for this rule; efficiency. | Effect of compulsive counterclaim; 1. use or lose. Must state or res judicata. 2. get automatic jurisdiction. 3. must exist at the time other party’s pleading is served on you. Test of same transaction or occurrence (broad to narrow); 1. is there a logical relationship? 2. will the same evidence support or refute both side’s claims? 3. Are the issues and facts the same? 4. is it based on the same legal theory? |
| *any 3rd parties involved must have PJ *counterclaim must be stated in pleading unless; Claim is already subject to another pending action or *SOL tolls when original complaint is filed. | |
| Permissive counterclaim means; any claim against the opposing party not compulsive. But, must have independent jurisdiction. (don’t lose if don’t bring up). Must have own SMJ Must be stated in the pleadings | Wigglesworth v. teamsters local union; used same evidence test and sort of logical relationship test. “where no connection is found between events giving rise to counterclaim asserted by Ds and the transaction or occurrence upon which P’s claim is based” it is not a counterclaim. |
| 13.g cross claims against a co-party Usually permissive Can arise out of same transaction or occurrence of either the original action or the counterclaim Relating to the property subject to the original action. Many include indemnity. | |
Policy reasons;
Inclusive (not grant/keep case in this court )
· Depending on stage of trial, don’t want to have to do it all over again.
· Efficiency (less time) (less expensive)
· Makes more sense to sort out any claims together, maybe they make more sense later on in trial.
Exclusive (to grant/dismiss case )
- Some reason that this is allowed at any time, because so important.
- Keep federal govt. out of state business.
Motion: To dismiss for failure to state a claim (green book page 40)
Rule 12.b.6= every defense shall be asserted in responsive pleading, except the following can also be made by motion…6. failure to state a claim upon which relief can be granted…if on motion asserting defense #6..matters outside pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.
Rule 8.a.2=short and plain statement showing that p entitled to relief.
Rule 8.e.=can plead inconsistent claims or defenses (but can’t get judgment on both).
Rule 8.f=pleadings construed to do substantial justice
Rule 16.c.1 case management; can be used by court to throw out cases in lieu of this motion.
Reason for motion; test pleading for sufficiency. Sifts cases that can’t show a claim for relief.
Questions to ask (must take p’s allegations as true);
1. does the complaint show jurisdiction?
2. Does the complaint have a short and plain statement showing that p is entitled to relief? Too few (see motion for a more definite statement) too many facts (disprove own claim). Or no doctrinal law (then must articulate extension, modification or creation of one).
Rules and cases supporting this;
| Conely v. Gibson- no dismissal unless it appears beyond doubt that P can prove no set of facts in support of his claim that would entitle him to relief. | Leatherman Supra; decide this motion “without regard to whether the claim will succeed on merits, even if recovery is remote, but this is not the test”. |
| Swierkiewz v. sorema; overturned Apellate who said “insufficient as matter of law to show..” (because didn’t have prima facie case) Swierkiewz said “need only short and plain statement” | Mitchell v. Archibald & kendell; if it is a new legal theory that p is pleading, then P must articulate it in the complaint. (here p pleaded facts that disproved his claim under existing law). *Broad- difficult for Ds to argue NO set of facts |
| US v. Board of Harbor commissioners; “complaint can be fairly vague as long as d can see where it’s going”. * Did not apply Conley, shows stress of courts leading to grant more 12(b)(6)s | *Courts options; can dismiss or let P amend *if dismiss w/ prejudice= res judicata *D might not want to argue because then P not amend and could say anything not in pleadings irrelevant, and easier to disprove. |
Policy reasons;
Inclusive (keep case around for discovery…)
· Preference for deciding cases on their merits.
· If it is possible for this case to turn into a solid case, do we want to turn it away now?
· P should get the chance to flesh out allegations through discovery.
· Let P have his/her day in court.
· Don’t want to be too picky, got rid of that in code pleading. Remember writ system where it only mattered what kind of lawyer you had, not merits of case.
Exclusive (get rid of case now)
- Heightened standard;
- Courts have too much to do and not much time.
- Expensive
- P should have done investigation on own.
- Takes time away from real cases.
- Harm to D (expense, time, reputation)
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