Twombley v bell atlantic what level of factuality is

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Twombley v. Bell Atlantic: What level of factuality is needed for a complaint to survive dismissal? 1. Rule: In order for a complaint to survive dismissal on the pleadings, it must contain enough facts to state a claim for relief that’s plausible on its face 3. Ashcroft v. Iqbal: Again, what level of factuality is demanded to survive 12(b)(6)? 1. Rule: Only complaint stating plausible claim for relief survives 12(b)(6), and determining that is a context-specific task requiring crt to draw on experience and common sense. Plausibility std asks for more than possibility ∆ has acted unlawfully. Conclusory statements that are not entitled to the assumption of truth 1. Ultimately, Swierkiewicz is resigned to Title VII and the Iqbal/Twombley standard based on plausibility controls 2. The Defendant’s Response: 1. Pre-Answer Motions under R12 1. R 12: Pre-Answer Motions 1. The PAM can be based on one of 7 defenses laid out in 12(b) 1. 4 disfavored defenses under 12(h)(1): If ∆ doesn’t raise these in the PAM, they’re waived forever 1. 12(b)(2) = Lack of PJ 2. 12(b)(3) = Improper Venue 3. 12(b)(4) = Insufficiency of process 4. 12(b)(5) = Insufficiency of service of process 1. Idea behind waivable defenses is consolidation/efficiency… don’t want making successive motions of single defenses that unduly delays proceedings 1. One Shot: consolidation means ∆ gets a single chance to bring these up 2. If Removal: PJ and venue aren’t waived if 1st appearance is motion for removal to fed crt 2. 3 favored defenses: can be made in any pleading:, and are not easily waived 1. 12(b)(6) = Failure to state a claim upon which relief can be granted 2. 12(b)(7) = Failure to join a party under Rule 19 3. 12(b)(1) = Lack of SMJ 1. Lack of SMJ is actually the most favored of all; it can be raised at any time. 2. “Fatal Defenses” lead to a dismissal: 1. Lack of SMJ (#7) 2. Lack of PJ (#1) 3. Improper venue (#2) 4. Failure to state a claim – ((#5) will be given chance to amend) 3. R 12(g) and (h): Review of Consolidation and waiver provision 1. 12 (g) sets out the tenet for the above rules 9
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1. ∆ can put all the above in 1 motion at the outset, but if he omits the disfavoreds, they’re gone forever 2. 12 (h) says the favoreds are allowed anytime 4. 12(e) is a ∆s request for a more definitive statement in the complaint 2. Failure to Answer and Default 1. R55(c) Steps in Process if failure to answer and a D’s set aside motion for a default entry 1. Step 1: if ∆ hasn’t answered in 21 days, can ask for default entry 1. now precluded from making any defenses and is treated as if he answered affirmatively and didn’t make any of them 1. note: there’s some generosity for parties settling on their own prior to answers, so clerks won’t generally make entry of default on their own: up to Π to bring it to clerk’s attention 2.
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