Civil Procedure Unit 1: Burden of Pleadings

Lecture: Access Now

A. Nomenclature
a. Pleadings
i. Plaintiff’s statement of claims and defenses laid out at the outset of the case
ii. Affirmative claim for relief after a legal violation has occurred
b. Answer
i. Defense’s objection to the pleading
c. Counter-claim
i. If defendant’s responds that the plaintiff is actually the one who did something wrong
d. Third-Party complaint
i. Defendant: “someone else is really responsible, so I’m going to sue them”
e. An action is commenced by filing the complaint (Rule 3 FRCP)
i. Deliver the complaint to the clerk of court
f. Must serve defendant the complaint in order for them to be required to reply
i. Summons
1. Take notice that you have been sued and are expected to respond by x time at
x place or else the court will automatically find against you
g. Defense Options
i. Attack complaint as legally insufficient – motion to dismiss
1. Motion: request the court to do something, typically to issue an order of some
kind
a. Noticed motions: motions in the written form; person lets the court
know she is going to file a motion with the court, description of what
you are seeking, legal argument in her favor. Other side has a chance
to respond with their legal argument
ii. Answer the complaint—admits or denies allegations
B. Access Now
a. Caption: all the crap at the top of a case (court, parties, civil vs. criminal, judge, etc.)
b. If there is a magistrate assigned to the case, he typically handles discovery, subject to district
judge’s oversight
c. Rule 8 (a)
i. Statement of jurisdiction
ii. Short and plain statement showing the pleader is entitled to relief
iii. Description of the relief sought
d. Any pleading you file with the federal court has to be signed by the party’s lawyer
i. Signing has its own requirements the attorney must meet
e. Parties: Access Now and Gumpson (access producing organization and blind individual) vs. SW
(airline company with website)
f. Complaint: the website does not allow blind access, which would be relatively easy and low-cost
to institute) and that is discriminatory
g. Jurisdiction: federal Florida Court (11th circuit)
h. SW answer—motion to dismiss—plaintiffs failed to state a claim on which relief can be granted.
Complaint does not describe a place of public accommodation as meant in the statute. A website
does not constitute a place of public accommodation and so SW is not required to make it
accessible to everyone
i. Rule 12 (b) (6)
i. Legal rules often have multiple elements
i. Governed by tradition and precedent
j. Elements of plaintiff’s claim: p.598-9 ADA general rules
Civil Procedure Unit 1: Burden of Pleadings

Lecture: Gomez
A. Review—Access Now
a. Motion to dispose of the complaint because the complaint does not assert a violation of the
substantive law
b. Complaint must be read in light most favorable to the party who is pleading
c. Must not dismiss unless it is clear that plaintiff cannot prove any facts that would lead to
entitlement to award of damages
i. Plaintiff can’t plead “fatal facts”
ii. Mistake of referring to website as a place
B. Burdens—what are they?
a. Burden of persuasion—“burden of proof”—beginning of case
i. Criminal case, beyond a reasonable doubt
ii. Civil case, typically a preponderance of the evidence; more probable than not (51%
chance)
b. Burden of production
i. Which party has the obligation to introduce evidence to prove that its statements are
true?
ii. Minimum amount of evidence that is sufficient to have a finding in one party’s favor
c. Burden of pleading—issue in Gomez
i. Who is responsible for asserting certain facts in their pleadings?
ii. Facts that matter in a case, those that are relevant to the legal issue at hand
iii. Elements of the case—those essential pieces of a plaintiff’s case—applied at the end of
a case by the judge or the jury
1. Claim, cause of action, prima facie case—plaintiff
2. Affirmative defense—defendant
a. Must be plead in answer, defendant’s pleading burden
b. Typically also assigns defendant burden of persuasion
d. Usually they are all linked; if plaintiff has burden of pleading, it also typically has burden of
production and persuasion
C. Burdens—how are they assigned?
a. If statute has “unless” (represents unusual cases), those circumstances are designated as
affirmative defenses
b. If statute doesn’t designate, three considerations
c. Policy: some cases that you want to “load the dice” against a certain side
i. Favors one party to a particular kind of litigation
d. Fairness: access of evidence
i. Assign burden to person who has the best access to information on the question
e. Probability: assign burden to the person you think is guilty
i. Prior wrong-doing
D. Gomez—history/holding
a. 42 USC section 1983—civil rights act of 1871
i. “Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission taken in such
Civil Procedure Unit 1: Burden of Pleadings

officer’s judicial capacity, injunctive relief shall not be granted unless

a declaratory decree was violated or declaratory relief was unavailable.
For the purposes of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be considered to be a
statute of the District of Columbia.”
b. Gomez = Plaintiff: claims he was denied his right to procedural due process by discharging him
from employment with the police department
i. Element 1—violation of his rights—claims he got fired without due process rights; fired
out of retaliation
ii. Element 2—“color of state law”—his boss was the superintendent of the police
department, a state official
c. Issue: does Gomez have to claim that this violation was done in bad faith?
i. Doctrine of this affirmative defense comes from precedent
ii. Defendants action was reasonably in good faith then he is not liable
d. Defendant: your complaint has to contain accusations of bad faith and unreasonableness
i. Since those allegations are not in there, motion to dismiss
ii. Requirements for Civil Rights case is (1) deprivation of constitutional right (2) under the
color of State law (3) with bad faith and unreasonableness
e. Plaintiff: we don’t have access to that information, so we should not have to prove it
f. Lower courts agree with defendant, case goes to SCOTUS
g. SCOTUS
i. Good faith and reasonableness is an affirmative defense, not an element of the claim
ii. Burden falls on defendant
iii. Reasoning: no way for plaintiff to tell the other person’s motivations and inner thoughts
1. Burden allocated to the defendant
2. Fairness based reasoning
h. Rehnquist: concurring
i. Willing to give burden of pleading to plaintiff, but leaves open the issue of burden of
persuasion
1. Should plaintiffs persuade jury of bad faith or defendants persuade good faith?
ii. Might say that constitutional violations are typically a result of good faith in a confusing
and complex situation, probability difference from majority
iii. Policy difference: may feel it is more important to protect government from frivolous
lawsuits
iv. Likely what he’s saying is “I concur on basis of fairness/access to information argument
on the basis that there has been no discovery”
1. But after discovery burden probably changes in his mind
i. Probability: if someone would act like that, they probably acted in bad faith, so the burden of
persuasion should be on them
j. Fairness: not privy to someone else’s mindset
k. Policy: protection of constitutional rights is essential, section 1983 should be “construed
generously to further its primary purpose”
i. Dice should be loaded against the person who violated constitutional right
E. Plain text of statute
a. Does not contain any mention of immunity
b. Only requirement is 2 elements (under the color of state law and violation of rights)
c. There is no “unless” clause (which would put the burden squarely on the defense)
d. But there is also no “and bad faith” clause (which would but the burden on the plaintiff)
F. Change in precedent: no more subjective good faith element in affirmative defense
a. Not personal thoughts, changed to objective reasonableness
Civil Procedure Unit 1: Burden of Pleadings

b. Doesn’t matter what the individual defendant was thinking, just what a normal person would
have/should have done in that situation
c. Does this change the reliability of the reasoning in Gomez
i. Fairness argument doesn’t really apply anymore… doesn’t matter what the individual
was thinking which is what Marshall’s argument turns on
ii. Still an element of access to information but not as compelling
d. Statutory argument not that compelling because Congress had the option to be explicit and
chose not to
e. Policy argument remains: we still want people who may have deprived another of the
constitutional rights to be incentivized to act with care
f. Probability argument also remains: someone being accused of violation probably acted in bad
faith
Lecture: Swierkielwicz & Twombly
A. Gomez (Police man denied procedural due process in his transfer and demotion after ratting out two co-
workers for giving false evidence. Does not have to plead actions were done in bad faith): You do not have
to plead facts supporting discrimination
a. That is proof—federal rules don’t require pleading of facts, only the element in a factual context
b. Only requirement is “short and plain statement”
i. “Two, and only two allegations are required…someone has deprived him of a federal
right [and] the person who has deprived him of that right acted under the color of state
or territorial law”
ii. Discrimination and fair notice to the defendant
iii. Discrimination must be a distinct form, provide enough evidence that defendant can
know the nature of the allegations and prepare a motion to dismiss
iv. Swierkielwicz: (Hungarian dude demoted, job given to someone less qualified,
complains, fired after refusing to resign) “defendant violated the antidiscrimination
laws, specifically Title VII and ADEA”
1. Not enough—doesn’t set the allegation in context
2. Fails under fair notice
v. Gibson (railroad employees discriminated against by their union rep): “Not set of facts
consistent with the allegations that would entitle the plaintiff to relief”
1. No matter what comes out in discovery you’re going to lose
2. Ex: Access Now—website does not fall in the scope of “public accommodation”
a. No matter what you prove in this case, you are never going to prove
that a website is a brick and mortar building
B. Swierkielwicz recap
C. Bell Atlantic Corp v. Twombly
a. 1. What was the best precedent-based argument for the plaintiff that the claim satisfied the
basic requirements of Rule 8 (a) (2)? How would you have used Swierkiewiczin support of that
argument?
b. 2. Why did the Court reject that argument?
c. 3. To what extent did the Court say that it had to change the law in order to reject that
argument?
d. 4. What is the Court’s new standard for the validity of the Complaint?
e. 5. Why did Twombly’s claim fail to meet the Court’s new standard?
f. 6. What more would Twombly have had to plead in order to meet the Court’s new standard?
g. 7. Is Twombly rightly decided (a) in adopting a new standard and (b) in applying that
h. standard?
i. Allegations of violation of antitrust act
i. Conspiracy to (1) not go into each other’s territory and (2) fend off local competitors
(create a safe haven through regional divisions to make it easy to crush start-up
competition)
Civil Procedure Unit 1: Burden of Pleadings

ii. Court: you must establish that this decision was not reached independently, that there
was an actual agreement between the companies
1. Evidence of some kind of communication
2. Doesn’t have to take formal or written form. Possible to infer agreement from
conduct or a wink between 2 CEOs
j. Majority: plausibility not there. Only possibility (is this questioning the truth of the facts, which
should be taken as true at this stage?)
i. Element requirement
1. “contract, combination, or conspiracy”
2. Fair notice
ii. No fatal facts
iii. You must plead facts that plausibly suggest element of conspiracy
1. Only conclusory allegations, no factual support
2. Provides fair notice and elements, but no facts
iv. Basically add another element: facts plausibly suggesting conspiracy
v. Gibson’s standard of “no set of facts” is outdated and confusing. No longer valid
vi. Did they provide fair notice?
1. No who, when, or where allegations of when this agreement occurred (this, to
me, is the strongest support of majority’s opinion, but it’s only in a footnote)
vii. In Swierkielwicz the court said you don’t have to plead facts supporting the inference
but here apparently you do
viii. Is this just an anti-trust standard because of the unique problems of burden and
expense of discovery? Or does it apply to discrimination and other cases also?
1. Appears to only apply to antitrust, because they went back to the original
standard two weeks later in Erickson v. Pardus (prisoner denied medical
services. Does not have to plead facts that the actions caused him harm only
allege that he was harmed)
ix. Gibson standard of complaint being read in light most favorable to the plaintiff. Doesn’t
seem that this happened… not really accepting the facts as true. Providing an alternate
explanation for the defendant
x. Fairness issue: how can plaintiff know before discover the specificities of the
agreement?
1. Focus on cost of discovery… yes, it’s very expensive in actual dollars, but
corporations like these also have substantially more money than the average
defendant
xi. Back to plausibility…
1. Notion that something more than speculation is required
2. A lot of weight on “showing” the pleader is entitled to relief… kind of turns it
into an evidentiary standard, which is entirely contrary to the original design of
the rule
xii. Just because you don’t like this one outcome isn’t a reason to change the rules
xiii. Notebaert’s statement is particularly striking. Why wasn’t this given more clout? Why
would someone be so hesitant to make an easy dollar?
1. This is a fact, and a discrete event
2. Very suggestive of the existence of conspiracy
3. Also the behavior is a fact—a bunch of companies not doing something (going
into each other’s territories) that would make them a lot of money
4. These events seem to comply with even the court’s new standard of pleading…
k. Was it right for the court to accomplish a wholesale shift in pleading? Was this the intention or is
it just a one-time event because of the cost of antitrust suits?
l. If it is a good rule, did the court have the institutional competence to adopt it, in light of the
rejection of precedent and the reading of the facts in a seemingly favorable light to the
defendant?
Civil Procedure Unit 1: Burden of Pleadings

Lecture: Ashcroft v. Iqbal

A. Swierkielwicz: legal conclusions are okay as long as they provide (1) fair notice of the complaint (allows
defendant to answer in defense) and (2) not no set of facts would entitle the plaintiff to relief
B. Twombly: conclusory allegations no longer ok
a. Code pleading revived (legal facts v. legal conclusion)
b. Facts must plausibly suggest violation of the law (more than possible, less than probable)
c. Court doesn’t tell us exactly how much is required but complaint must provide fair notice
d. No longer really read in light most favorable to the plaintiff... court develops legal alternative
explanation for the facts
e. Rejection of policy of Swierkielwicz —discovery is good and acts as a control for frivolous law
suits
C. Erickson v. Pardus—Later case SCOTUS seems to revert back to Swierkielwicz standard, suggesting
Twombly has a limited effect
a. Prison officials wrongly terminated Hepatitis C treatment
D. Iqbal
a. P: Muslim Pakistan man detained after 9/11. Identified as “high interest” and transferred to
ADMAX SHU. Claims he was discriminated against on his race, religion, and nationality
(applicable one here) and bad treatment against guards, etc (beatings, denied right to pray,
verbally abused). Arrested bc he used someone else’s social security number.
b. D: correctional officers, Director of FBI (Ashcroft), and Attorney General (Mueller)
i. Charges against A&M are the ones at issue in SCOTUS
1. Knew of, condoned, and agreed to discriminatory policy
c. Trial court denies motion to dismiss
d. Interlocutory appeal—appeal while trial is still pending
i. Appropriate because they are public officials and litigation is particularly harmful to
them
ii. 2nd Circuit—Affirmed. Twombly refers to anti-trust only. Fair notice is provided in the
complaint
e. Claims—ones recognized by the majority as factual
i. M&A caused the arrest
ii. Discussed and approved the policy
f. SCOTUS—2 issues
i. Allegations not recognized as factual (legal conclusions, recitation of the required
elements)—intentional discrimination allegations are conclusory
1. “knew of condoned and willfully and maliciously” agreed to subject him to
harsh conditions on the basis of his race, religion, and nationality
2. Ashcroft was principle architect
3. Mueller was instrumental in adoption and execution
4. Allegations called “conclusory” not facts
5. Issue was whether it was intentional discrimination
ii. Since the allegations above were stuck down as conclusory, no plausible evidence of
intent. Develops alternative explanation, that it was a happenstance arising out of a
legal investigation into a terrorist attack
g. SCOTUS: approving a detention policy is not enough to prove discriminatory intent
h. Was the decision right? Concerns
i. Court expressedly knocks down notion that Twombly was a special circumstance—now
plausibility applies to all civil proceedings
1. Judge’s discretion (requirement that judge rely on common sense and judicial
experience to distinguish facts from conclusory allegations) kind of usurps role
of jury
a. Fact-finding on the face
b. Judgment of plausibility
Civil Procedure Unit 1: Burden of Pleadings

c. Arbitrary, subjecttive standard

2. Rejection of Swierkielwicz in discrimination cases
ii. Dissent: intentional discrimination allegations should not have been deemed
conclusory; should have been taken to be true
1. Inclusion of these elements would have established sufficient facts
2. Doesn’t specifically reject that the plausibility standard should be applied
across the board
3. These statements do give fair notice
iii. Dissent: supervisory liability is applicable in light of M&A’s concession that they would
be liable if they had actual knowledge of discrimination by their subordination
iv. Dissent: even the allegations that the majority deems are factual and accepts as true
show that the allegations that (1) the “high interest” label was discriminatory and that
(2) A&M knew of and agreed to the discrimination should have been accepted as factual
allegations
v. Fairness: could Iqbal really have made much more factual allegations? Kind of sets and
impossible pleading standard
vi. Highly politicized national security case… should it be relied on by lower courts?
1. Perhaps it was more a national security case than a discrimination case
vii. Majority doesn’t really set out standard for determining factual allegations vs.
conclusory allegations
1. You agreed A&M approved the policy and that was deemed factual, so why
wasn’t it factual that A&M were the architect and instrument?
2. Considerably more detail here than in Twombly (time, place, and person are
specified)
3. Given the high level of security and secrecy in government, especially in this
matter, how was Iqbal supposed to offer more?
a. But, state secrets should be protected that way
4. Not only blatant conclusions, but appears that some words are deemed
conclusory by nature, thus omitted from consideration 0
viii. Majority basically says they want facts supporting the inference for discrimination—
plausibility standard fair?
ix. Plausibility standard never rejected in either opinion. Probably good standard
1. However, “legal conclusion” would probably be construed much more narrowly
in a typical, less political discrimination case
x. Federal forms actually endorse a style of pleading that Twombly and Iqbal reject
1. It has been said that the forms are the ones that need to change, suggesting
that these cases are here to stay as precedent
xi. Being required to provide more detail forces plaintiff to take an increased risk
1. Sanctions under rule 11
2. How much can you say when you aren’t sure if you’re right?
E. Swierkielwicz
a. Plausible alternative explanation was also available here (maybe he could have just been a bad
employee) but the court chose not to do that
b. Fair notice standard applied here, Twombly and Iqbal
c. Pleads specific facts that
i. Establish the presumption of this superiority as an employee
ii. The less capable nature of his replacement
iii. His supervisor’s statements that imply discrimination
d. Iqbal doesn’t really do as good of a job, facts are less specific
e. Model of how to plead with sufficient specificity