We will continue with Motions and the waiver hypotheticals. Review # 3 by reading FRCP 12(h)(1)(B)(ii) together with FRCP 15(a)(1); focus on the precise text of each rule, the relationship between them, and what you have to do moving between each rule. Think of them as one CREAC embedded within another. We will review the last two hypos, then discuss FRCP 12(f).
We then move to The Idea of Notice Pleading. This will bring us back to the question of what FRCP 8(a)(2) means by "short and plain statement of the claim" and when a claim is subject to dismissal under FRCP 12(b)(6). Read Conley,
trying to figure out what the plaintiffs claimed and what they included
in the complaint. What are the arguments for allowing the plaintiff to
plead minimal facts? What are the drawbacks to the plaintiff including
more facts in the complaint?
Then move to Fact of Heightened Pleading. Ignore Tellabs. Read FRCP 9(b) and Swierkiewicz, along with section (b) of the Private Securities Litigation Reform Act. We now see our first departure from transsubstantivity, with special pleading rules for fraud and securities fraud.Think about the reasons for imposing heightened pleading here--why demand more facts in the Complaint for these allegations and claims? Do those reasons actually make sense?