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CIVIL PROCEDURE CHEAT SHEET Fall 2009 GENERAL Rules Enabling Act §§2071-77 > 1) Only regulates procedure; 2) must not abridge, enlarge, or modify any substantive right Sibbach v. Wilson & Co. (1941) > Rule 35 is a procedural issue here; since it’s procedural, it’s valid under REA; case would have been different if she had sued in Indiana PLEADING Choice of venue > P has choice of court (can go for fed or state); removal lets D have a say in venue but can’t go back to state court after removal Rule 8 > Purpose is to facilitate an informed discovery; provide basis for settlement; identify non-disputed facts and contentions Rule 8(a) > short and plain statement of claim that shows P is entitled to relief Rule 8(b) > any allegation not denied is admitted Rule 8(c) > allocates burden of proof; lists things D must assert in answer; affirmative defenses (if not asserted then waived) Rule 8(d) > plain and simple pleadings; alternative and inconsistent claims or defenses Sierocisnksi v. E.l. Du Pont de Nemours & Co. (3% Circuit 1939) > injured by blasting cap, gets to amend complaint so it states claim; have to accept statement of claim as is and proceed as if it is valid; appeal 2 is dismissed because no reasonable person could have found for P Notice Pleading > Is there any set of facts consistent with allegations that would justify a recovery for P? (set in Conley v. Gibson) Plausibility Pleading > Disregard conclusory allegations, then look at rest of pleading to see if allegations are plausible (Igba/; upholds notice pleading in Erickson but wants plausibility in Twombly; looks like there might be different pleading standard for different types of claims and parties; not clear how this is applied in district courts (Madison) PROBLEMS ~> Moves question of plausibility from judge to jury; often need discovery for plausibility Bell_Atlantic Corp. v. Twombly (2007) > Antitrust suit that would have involved expensive discovery; COURT says claim didn’t nudge allegations from the possible to plausible Erickson v. Pardus (2007) > notice pleading is system we have, use it! NOTE: pro se litigant in jail might be different Ashcroft v. Iqbal (2009) > Claims against AG and FBI director need to be plausible and not conclusory Madison v. City of Chicago > P’s pleadings are pretty vague but judge says they’re enough; city can take discovery if it needs it Rule 10(c) > Exhibits with pleading are considered part of pleading Rule 11 and Pleading > Deter frivolous claims without deterring meritorious claims; attorney certifies that he has tead the pleading and after reasonable inquiry thinks it’s grounded in existing law or there might be a good case for changing the law Rule 11(c)(2) > Safe harbor; serve motion for sanctions but don’t file it unless opponent doesn’t amend or withdraw offending pleading within 21 days Manphy v. Cuomo (NDNY 1996) > P claims Zarc conspired with NYPD; Zarc moves for SJ and Rule 11 sanctions, which are granted because claim is frivolous and attomey should have looked into claims more thoroughly before certifying 
