Exam Answers

Ехат ID: Civil Procedure, 1 ' START OF ЕХАМ -->Question -1- Question #1 In order for the court to deterrnine the issue at hand, whether the defendant's 12(Ь) (6) rnotion for failure to state а clairn upon which relief could Ье granted, the court first rnust analyze Guirguis's cornplaint. The cornplaint rnust satisfy the requirernents set out in Rule 8 of the Federal Rules of Civil Procedure in addition to the standards set out in case law interpreting Rule 8. First, Congress granted the Suprerne Court the right to estaЫish and prescribe rules for the federal court systern under 28 USC § 2071-72. Rule 8 governs pleading requirernents beginning with 8(а) (l-3) which requires а short and plain staternent of the grounds for the court's j/d (jurisdiction), а short and plain staternent of the clairn that the pleader is entitled to relief, and а dernand for the relief sought. I will assurne that Guirguis (now abbreviated as Р) included the grounds for j/d and relief in his cornplaint, and that the deterrninative issue is whether the short and plain staternent follows the standards set out in case law, rnost recently Ьу TwornЫy and Igbal. Generally, 11е know that the default rule is that rnost pleadings usually survive disrnissal unless the pleader pleads themselves out of court, fails to assert а claim based оп а recognized cause of action, fails to plead an essential elernent, pleads allegations deerned conclusory, pleads in а nonconclusory rnanner but the pleading isn't plausiЫe, or the cornplaint fails to give fair notice to the other party. The general rule 11as estaЫished Ьу Conley v. Gibson, where the court held that in order for а clairn to Ье disrnissed under а 12(Ь) (6) rnotion, Civil Procedure, 2 The Conley In TwomЬly, the plaintiff's complaint based on The court held that specific facts were not required but In Igbal, the court also held that Igbal's allegations were One rnight conclude Perhaps these situations Additionally, Swierckiewicz, а case that also held that а short and pleading requirernents for discrirnination, v1as never over-ruled. However, Igbal plain statement of the facts was all that is need instead of heightened immunity. discovery or because of the security and privacy concerns related to qualified require special pleading requirements because of the potential high cost of with antitrust and qualified immunity situations. that narrow readings of TwomЬly/Igbal are appropriate because those cases deal common sense" to decide whether clairns where plausiЫe. conclusory and required courts to draw on "traditional judical experience and (pg. 213). enough facts were necessary to state а clairn that is plausiЬle on its face supporting facts. ,1as deerned conclusory because the statrnent was а legal conclusion without allegations of parallel business practices not to compete in regional markets decisions, TwomЫy and Igbal. The exceptions to the general rule stem from more recent Supreme Court of claims, meaning that а short and plain statement is all that is needed. pleading requirements was to facilitate proper decisions based on the merits court upheld the policy of the rule makers that the purpose of liberal facts" in support of the claim that would entitle him to relief. the claim must appear beyond doubt that the plaintiff can prove "no set of /:хат 1D: l i \ In application of the T/I two-step, the court will first mark out all of 1) Is the complaint conclusory? 2) Is the complaint plausiЫe? requirements, the court will also need to apply the TwomЬly/Igbal two-step: Therefore, after determining that Guirguis's pleading follows the В(а) extended TwomЬly to apply to all pleadings, not just anti-trust litigation. i з Civil Procedurв, r• Ехат ID: thG legal conclusions in thc complaint and then 1ook to sGe ,1hat reшaiнs. Т!1е 1ine 'Ъе wus terrninated Ьу th� defendant in violation of his civil rights н rnay Ье interpreted to Ье а legal conclusion. Р will argue that that is not conclusory because it ,ras the reason for his termin ation. The Р wilJ. likc,ly иant to rcly on Swie.r:ckiewicz where the court held that S did not have to plead all the elernents of prirna facie discrirnation, whereas that was an evidcntiary requirement. and not а pleading standard. The Р шау not know of any otl1cr reason ,>1h_y he i;.Jas terrninated othor thun discrimatio11, so it rnay not Ье possiЫc for hirn to шаkе а statrnent that is поt coпclusory. The Р could have rnade а better argшnent, folloiEnd of Queetion 1 Civil Procedure, START OF ЕХАМ -->Question -1- Essay Question #1 The issue for the trial court is whether to dirniss Adel's (А) lawsuit for failure to state а clairn upon which relief can Ье granted. То answer this question, we rnust look to both Rule 12Ьб and the pleading standards in Rule 8. Rule 12 contains the rnotions and objections availaЫe to the defendant. А 12Ьб rnotion is а pre-answer rnotion {which can also Ье filed in the answer or as а 12с rnotion for judgernent on the pleadings as allowed under l2h2) when the defendant fails to state а clairn upon which relief can Ье granted. There are three cases when а 12Ьб rnotion can Ье brought. First, when no cause of action exists, second when the cause of action exists, but the plaintiff has failed to plead it, and third when the cause of relief exists but the plaintiff has plead themselves out of relief. А 12Ьб preanswer rnotion stops the clock in relation to the defendant 1 s time to answer the cornplaint {if an answer is required). In deciding whether to grant the 12Ьб rnotion, the judge can only look to the four corners of the cornpalint. No outside evidence is allowed to Ье presented, and the question of whether the plaintiff failed to state а clairn upon which relief can Ье granted is а pure legal question. Should decide to grant the 12Ьб rnotion, the court can either disrniss or allow the plaintiff to amend and subrnit repleadings. Rule 8 contains the general rules for pleading. Rule 8а encornpasses the general pleading requirernents and states that the pleading for а clairn of Civil Procedure1 , relief rnust contain 1) а short and plain staternent of the grounds for the court's jurisdiction; 2) а short and plain staternent of the clairn showing that the pleader is entitled to relief; and 3) а dernand for the relief sought. Rule 8а was deliberately rnade to Ье broad Ьу the rulernakers in 1938, and has been interpreted to allow for а liberal pleading standard. While а heightened pleading standard does exist in Rule 9 (which requires heightened pleading in cases of fraud or rnistake), historically, Rule 8 allowed for а liberal pleading standard. In Conley, the Court interpreted the rule's "short and plain 11 requirernent to rnean 11 short and plain." Thus, when the Ыасk railroad ernployees in Conley alleged that their ernployrnent rights were violated without any clear evidence or а srnoking gun, the Court allowed the case to continue Ьу refusing to grant the defendant's 12Ьб rnotion. The Court explicitly stated that unless there were no set of facts to support the Ыасk ernployees allegations, their suit should Ье allowed to continue. This rneant that, as long as, the plaintiff could rneet а low threshold of presenting fair notice of what his cornplaint was and the legal grounds for relief, he was entitled to survive а 12Ьб rnotion. The Court reiterated this interpretation of Rule 8 liberal pleading standards in Leatherrnan and Swierzciz (Sw.), which respectively stated that there was no heightened pleading standard for suits against rnunicipalities or suits in Title VII clairns. However, in TwornЬley and later Iqbal, the Court seerns to have struck down the liberal pleading standard of Rule 8, and irnplernented а two step process which allows the court, when а 12Ьб rnotion is brought, to strike any conclusory staternents in the plaintiff's cornplaint and then exarnine the nonconclusory staternents in the cornplaint for plausibility. 7 Clvll Procedure, According to the two step process developed in TwomЬly and Iqbal, the court must strike any conclusory statements and then look to the remaining nonconclusory statements to see if what remains is plausiЫe. TwomЫy was the first case to truly address plausiЬility. Thus, when the suit against the phone companies was brought, alleging misconduct under the Sherman Act, the court found that the allegations of conspiracy were nothing but inferences and the behavior of the phone companies was circumstantial evidence that plausiЫy lead to а diffenernt conclusion. Then in Iqbal, the court seemed to institute а conclusory part to the test. In Iqbal, when plaintiff alleged unfair treatment Ьу highranking US officials, the court struck out what it deerned to Ье а conclusory staternent (the legal conclusion that the plaintiff was discrirninated against) and then examined whether there was another plausiЫe explanation for his treatrnent Ьу the federal governernent. In this case, Adel filed а lawsuit against Movers (М) in federal court alleging discrirnination based on Title VII. We will assume that the court has personal jurisdiction and subject rnatter jurisdiction for this case, and only consider the issue as to whether cornplaint fails to state а clairn upon which relief can Ье given. A's cornplaint states specifically that he \ began working for М in 2000, is foreign born, and that he was fired from his job in 2006 on the basis of his national origin. In Sw., the court allowed for а sirnilar cornplaint based on Title VII. In that case, а Hungarian ernployee alleged age and national origin discrirnination Ьу his French ernployer. While the Hungarian listed the facts leading to his terrnination (Example: he was dernoted, given less job duties, а younger Frechrnan was brought in as his replacernent), he was - · \ \ \ I l i,ith is that he is foreign-born, iEnd of Question 1 1976 START OF EXAM -->Question -1- Adel Guirguis will probably have his suit dismissed if Movers bring a 12b6 Motion to dismiss for failure to state a claim. A claim is insufficient in 12b6 terms if 1) no cause of action exists to compensate for the tort/wrong 2) a cause of action exists but the P has not asserted it (or an element of it} or 3) a c/a exists but the P has plead himself out of it. There is a federal claim based on the Title VII civil rights act, but P has probably failed to assert the c/a in his well pleaded complaint. Today's notice pleading standards are much higher than they were previous to Twombly/Iqbal. The rule is still based on FRCP 8 which states, P must give a "short and plain statement" of the claim showing that he/she is entitled to relief. The fate of P's case turns on how the court interprets 11 short and plain 11 of Conley v. Gibson, courts contended a complaint was 11 • During the days sufficient unless it appear[ed] beyond a reasonable doubt that the P can prove no set of facts in support of his claim which would entitle him to relief." P could probably bring in facts support the accusation, but now the pleading standard requires more than just a possible allegation - it requires the allegation to be plausible. After Twombly/Iqbal in 2009, courts now require a modern "heightened" pleading standard. Though it is based on the same rule (8), the courts have a 2-step process from Twombly/Iqbal which requires 1) all conclusory allegations to be scratched out and 2) everything that is not conclusory to be held to a plausibility standard. 1) Scratch out all conclusory remarks (Iqbal} Conclusory means any vague/formulaic recitation of the elements of the claim. The ТwomЬly two-step tries to eliminate anything that is nothing more than an 11 unadorned, the D-unlawfully-harmed-me accusation". Paragraphs 7 and 9 will рrоЬаЫу Ье found to have conclusory statements, After scratching out the conclusory statements, Paragraph 7 will рrоЬаЫу only contain "Р began working for the D in 2000 in the accounting dept. Р was employed Ьу the D from that day until February 14, 2006, when he was terminated Ьу the D _____ ,11 1 In violation of his civil rights' does not tel1 the court how/in what way they were violated, rather it simply states that the Ds violated his а conclusion D is trying to prove, not а facts that support his contention. Paragraph 8 contains only facts of P's origin which are relevant to the case and so they will remain. Paragraph 9 includes the conclusory allegation "Р was terminated Ьу the D in violation of his rights due to his national origin having been born in Egypt". Thus, paragraph 9 would read, "On Feburary 14, 2006, • 11 Here, Р did not even assert rote recitations of the elements of а claim, and only included completely conclusory outcomes/statements. 2) Everything that is left over is held to а plausibility standard. P's pleading now looks like this: 7. Р began working for the D in 2000 in the acct dept. Р 11as employed Ьу the D from that day until Feb 14, 2006. 8. Р is foreign born, is an АrаЬ, having been born in Egypt on June 20, 1947. 9. On Feb 14, 2006, Р was terminated Ьу the D. Aside from the grammatical errors arising from the removal of the bulk of P's sentences, Р I s pleading now also suffers from а possiЫe lack of 11 factual content that allows the court to draw the reasonaЫe inference that the D is liable for the misconduct alleged" (Iqbal). P did not give any indication that D fired him based on a discriminatory basis. Rather, he leaves the assumption to the reader to infer his national origin dictated his dismissal from work. Had he also asserted he was well qualified or that there was no other reason ~ for his dismissal the inference would be easier to make, As it stands now, the court would have to assume that anyone who is arab and fired was fired due to their national origins to permit P's claim to go on. However, it may be inferred from the length of time he worked for D, 6 years, that he was at least qualified for the position. It is also a little cruel to fire someone on valentines, but that's really irrelevant. The burden to defeat a 12b6 motion is light. Pis only required to allege enough facts for the court to infer that he is alleging the elements of a proper claim. I assume that the elements of racial discrimination would require more than a wrong and a foreign vicitim - it would probably also require the nationality of the victim to be the cause of the wrong. P needs to assert that element. P could also argue that the court in Iqbal decided "legal conclusion can provide the framework of a I complaint, but they must be supported by factual allegations (to determine , whether they plausibly give rise to an entitlement to relief)." It is plausible to think someone could be fired on basis of their race/origin, hence the passage of the civil rights act and the particular discrimination clause in question. P's legal conclusion that he was fired based on his race is supported by the fact that he worked for the D for many years, was fired, and is Egyptian, Discrimination is a reasonable inference to draw, but the court will likely not make that leap and deem his pleading inadequate. His case would be much stronger if he had given other evidence such as ridiculing him prior to the dismissal or telling him he was not wanted with the company any \ longer due to his origins. It is unfortunate, but P's case will probably not survive a 12b6 motion. Historically, the courts had a very liberal pleading standard that relied on other stages to help separate legitimate from illegitimate. currently as it stands (though the legislature may eventually overturn it), the heightened pleading standards act as a front end strict gate keeper. It's a tool to separate the wheat from the chaff early on in the system, but like all systems, it is not fool proof. Sometimes trial worthy cases, such as Adel's, are not allowed in court due to an error in pleading, not a lack of a case. Fortunately, unless the statute of limitations has tolled, P will have the opportunity to refile his case if it is dismissed based on the 12b6 motion. P's may also have the opportunity to-amen.d__ b~s pleading, but if it is dismissed, he will have nothing to amend. Question 1 Word Count= 1115 Character Count = 6262 -->End of Question 1 :l"J--I· if- Up r -->Question -2- When confronted with a PJ claim, a court will asked three questions. there a traditional base of PJ? 2) Does the long arm statute apply? and 3) Is the application of the long arm constitutional? 1) Traditional basis of PJ The traditional basis for PJ for corporations is based on where their corporate presence is felt, agents exist, waiver or consent. Tag j/d is generally inapplicable on corporations (corp employees served not availing the company, only themselves, to the j/d of the forum), Pis foreign with no agents in TX and did not argue the merits of the case thereby waiving their PJ arguments, Thus, there is no traditional basis of j/d. 2) Long arm applies? Long arm j/d is based on statutory amenability, Under R4kla "federal courts are limited in exercising j/d over the person of a D who could be subjected to the general j/d in the state in which the district court is located." In modern PJ this has been interpreted to mean, if the Dis subject to general j/d, then his can be hailed into federal court (constitutional basis of long arm statutes), Long arms supplement the authority of R4kla to reach nonresidents who, falling outside the traditional categorites, engage in activities in the state that gave rise to the P's claim. Because TX's long arm statute has been interpreted to go to the fullest extent of the constitutional due process limits, if the next element is met (#3), then #2 is met (although the state can choose to decline the case), 3) Long arm constitutional? States must decide whether j/d is permissible under the due process clause of the 14th amendement, This is done in a (2) part test: 1. Purposeful availment/a minimum contacts analysis and 2, reasonability/fairness anaylsis, This analysis protects Ds from the burden of litigating in a distant or inconvenient forum and ensuring that states don•t reach beyond their limits as co-equal sovereigns (Worldwide), 1, Minimum contacts The minimum contacts test decided in Shoe tests if the D purposely availed itself to the laws of the fourm state such that it could reasonably foresee being hailed into court there. D's degree of activity is assessed by either an adequate number standard or a sufficient quality of the contacts standard. Basically, the D can satisfy either general or specific j/d elements. Sufficient minimum contacts may be demonstrated by evidence that the D purposely directed their activites at the forum, TX, which is a refinement of the Shoe. rule first enunciated by Hanson and adopted by other courts in cases such as Burger King and Asahi. D did not have a large number of contacts and those few contacts that D did have probably would not avail himself to the j/d of TX. However for the sake of argument: Specific j/d speaks to the quality of the contacts. If the claim arises out of the minimum contacts (the tort occurred in the forum), then the specific j/d analysis could apply. Specific j/d has few contacts, but a high level of relatedness to the claim. D, a French company, did not directly advertise in TX nor did it deal with this client in TX. For individuals, the presence in a forum enabling them to commit a tort against another is enough in itself to avail themselves to the forum (Hess), but corporations are given a little more leeway with their products, especially if they had no idea the product would end up in the forum. CMMC dealt through a liason (KLR) who advertised to potential clients in America. KLR did not have much business in TX and was not based in TX so it is unreasonable to assume D would know of KLR's sale there, Had KLR told CMMC to fix the product themselves when the warranty claim was made, perhaps the court could make a reasonable inference D at least knew of the product in TX. This probably wouldn't matter much though because D did not attempt to sell the products to TX, rather D would know the product just happened to go there. D also never reviewed KLR's advertising in TX. Much like the Asahi case and the Jeep crash case we discussed in class, if D had advertised in the forum or known of their products reaching the forum, it might be reasonable to think they were availing themselves to the laws of the state, However, the only direct knowledge of a product possible reaching TX was through the wiring request made by KLR to make the product to US specifications, If they had wired the press to TX specifications, then they may have more specific contacts with the forum (Gray Radiator), D had very little awareness of their product ending up in the forum so the courts will be more concerned with the Ds capability to defend in TX (Asahi), The P could argue the D previously sold a press directly to TX, but that argument would probably fail because D was not trying to sell their product to Pin TX. D did not know where in the US this particular product would go and probably did not assume this sale would avail themselves to a distant TX court, Specific j/d is based on the claim, not the general availment of the company, Therefore, the court probably would not find specific j/d. General j/d is found where a company has continuously and systematically availed themselves to the forum. Those contacts must be sufficient/substantial 1 enough that_ the D has fair notice of being hailed into the forum, whether a claim arises out of the forum or not. Thus, when the activities of a corp Din a forum are sufficiently continuous, systematic, and substantial, the corp D may be sued there even on claims unrelated to those activities (International Shoe). Neither KLR nor CMMC would really qualify under the general j/d method of PJ. As previously mentioned, CMMC had sold one wine press directly to a TX company, but that is neither continuous nor systematic. That is a singular sale that would not put the Don alert that he could possibly be availing himself to TX court through the sheer amount of business he enjoys there. This is a lot like Helicopteros in that there is very little business conducted in the forum state. Helicopteros held that the contacts were not sufficiently systematic and constinuous as to avail D to the state. It set a high bar for general j/d that the D did not meet. Dis not incorporated in TX and does not have his principle place of business in TX. In fact, D doesn't even have agents in TX. D's retailer the winepress was purchased through (who is not closely tied in business to D) also does not have an agent in TX. Because D has never had a place of business, distributor, representative in TX, or any other contact than the one singular direct sale, D will not be found to have availed himself to the general j/d of TX. Thus, general and specific j/d do not apply to this case and D should not have to litigate there. 2. Reasonableness/fairness Though D will probably be found not to have minimum contacts with the forum, if the court does find sufficient min contacts, the court must ensure they are reasonaЫe/fair. In other words, would bringing in the defendant comport with the notions of fair play and suЬstantial justice? The court would probaЬly find that D's case would not meet the reasonaЫeness factor. It would Ье difficult to convince а court the D should have to litigate in а foreign forum when they were not on notice of the possibility. It would Ье more fair to litigate i n а federal forum because D knew some products were advertised and sold to the US, and they built the product to US specifications. Con clusion D will probaЬly not have to litigate in ТХ state court. Because the ТХ long arm goes to the full extent of due process and the constitutional due process limit was not met, it would Ье both unconstitutional and non-statutorially amenaЬle to force D to litigate in ТХ state court. The appealate court should sustain the 12Ь2 dismissal. q