Here are some things to think about concerning
the reading on drafting a complaint.
1) What purposes do you think a complaint serves? What purpose does
it serve when it is handed (with a summons) to the defendant?
What purpose does it serve when the defendant answers the factual
allegations in the complaint (by admitting them, denying them, or
denying knowledge concerning them)? How can litigation be terminated
before discovery and trial by means of a complaint and answer? What
purpose does a complaint, with the defendant's answer, serve during
discovery? During trial?2) Why are the standards for drafting a
complaint in Fed. R. Civ. P. 8(a) so generous to the
plaintiff? Isn't this an invitation to frivolous litigation? What,
exactly, is frivolous litigation anyway? Are there different ways that
an action can be frivolous?
3) Does a plaintiff have to offer evidence
for his factual allegations in his complaint? Look at Form 11. Is there
any discussion of the evidence the plaintiff has for his factual
4) How might more stringent standards for drafting a complaint be used to weed out frivolous actions?
5) Be familiar with the distinction between elements of a cause of
and affirmative defenses.
6) Consider the following three ways that a complaint might be deficient:a) the plaintiff fails to allege facts that add up to a cause of action (that is, the plaintiff fails to state a claim)
b) the plaintiff states a claim but fails to allege facts with sufficient specificity even to satisfy R. 8(a)
the plaintiff states a claim and alleges facts with sufficient
specificity to satisfy R. 8(a) but has insufficient evidence in favor of
his factual allegations to justify goimng forward with the case.
Questions on Sierocinski
7) Look at Sierocinski's complaint carefully in the light of the
requirements of Rule 8(a). Try to figure out why each sentence was
Does he say more than he needs to?
8) Try to figure out what the elements of a cause of action for
are on the basis of the Sierocinski's complaint.
9) Look at Form 11. Notice that all the complaint says is that the
"negligently drove a motor vehicle against the plaintiff." Is it always
simply to allege that the defendant acted "negligently" in order
to satisfy Rule 8(a)? Can you think of examples where more detailed
of why the defendant acted negligently - the way his
was negligent - would be needed in order to satisfy the particularity
9a) Is Biddle right that the problem with the defendant's argument is
that he wants evidence from the plaintiff and that evidence is something that is offered
the Federal Rules) only after the pleading period? Is there another way
of interpreting the defendant's argument?
10) Does the fact that the Sierocinski's allegation of negligence subsequently was
to be without any evidence in its favor (by the Court of Appeals) mean
that Judge Biddle decided the Siercocinski case wrongly?
11) Why is it dangerous to plead more than you have to? Why do
do it anyway?
12) Think through the arguments in favor and against greater
specificity in a complaint.
Questions about Twombly & Iqbal
13) Compare Twombly and Seirocinski. Couldn't the same thing that was
said about the plaintiffs' complaint in Twombly also be said about
Seirocinski's complaint? Wasn't the fact that the the cap exploded like
parallelism in Twombly: evidence (in Seirocinski of negligence, in
Twombly of an agreement to restrain trade), but not sufficient evidence on its own? If
they are similar, doesn't the fact that Seirocinski's complaint was
adequate suggest that
something is going very
wrong in Souter's opinion in Twombly?
14) There are (at least) three ways that one might think a complaint is
defective. The first is that the complaint is insufficiently particular
to adequately notify the defendant of what the action is about. This is
supposed to be what R 8(a) is about. The second is that the complaint
is adequately particular, but it fails to state a claim, because what
is alleged fails to add up to a violation of the law. This is supposed
to be what R 12(b)(6) is about. The third is that the complaint
indicates that it does not have enough evidence standing behind it to
succeed at trial. Is there a Fed. R. Civ. P. that addresses that? Which
of the three defects is Twombly about?
15) Isn't it the case that Twombly/Iqbal have amended the federal rules by judicial
interpretation? Is it OK that the federal
rules have been amended by interpretation, since they are created by
the Supreme Court anyway?
16) The Seventh Amendment says, "In Suits at common law, where the value
in controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved..." The Twombly case was a suit at common law and
the value in controversy was more than twenty dollars. Doesn't Souter's
standard in Twombly therefore violate the Seventh Amendment?
18) Shouldn't all of this be handled by Rule 11? Isn't sanctioning
lawsuits that turn out to be frivolous the best solution, rather than
using pleading standards to weed them out ex ante?
19) Can the plaintiffs in the Twombly case try suing the same defendants
again with a better complaint?
20) Couldn't the problem that Twombly seeks to solve be handled instead
by focused discovery - for example discovery solely concerning whether
there was an agreement among the telecoms?
21) Think of the three defects mentioned in Q14 above. Which is at issue in Iqbal?
22) Iqbal makes it (relatively) clear that the Twombly standard applies
to all pleadings governed by R 8(a). But do you really think that run
of the mill negligence cases like Seirocinski will be treated
differently now than they would have before Twiqbal? Wasn't there
something distinctive about both Twombly and Iqbal that makes them
unusual cases, where heightened pleading standards might be advisable?
Does it make sense to have one rule - like R 8(a) for a wide range of