(A Very Brief) Introduction to Civil Procedure

1. (A Very Brief)Introduction to Civil Procedure Professor Pauline Kim August 23, 2012

2. Appellate Opinions “Facts of the Case” “Procedural Posture” Substantive Law Procedural Law

3. Standard for Motion to Dismiss Conley v. Gibson (U.S. S. Ct. 1957): A complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief” Bell Atlantic v. Twombly (U.S. S. Ct. 2007): “This famous observation has earned its retirement.”

4. Standard for Motion to Dismiss Conley v. Gibson (U.S. S. Ct. 1957): A complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief” Ashcroft v. Iqbal (U.S. Sup. Ct. 2009): “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”

5. Motion to Dismiss for failure to state a claim [12(b)(6) motion or Demurrer] • Tests the sufficiency of the complaint • Looks only at the allegations of the complaint, not facts or evidence • Asks “if the factual allegations are true, is plaintiff entitled to relief?” • Effect if granted: Ends the case before discovery, before investigation of underlying facts.

6. Motion for Summary Judgment • Tests the sufficiency of the evidence • Looks at the allegations plus factual evidence revealed through discovery • Asks “given the factual evidence, could a jury find for the non-moving party?” • Effect if granted: takes the case away from the jury

7. Published Appellate Opinions are Very Unusual

8. Progression of Litigation • Complaint • 12(b)(6) or demurrer Appeal • Answer • Discovery • Summary Judgment Appeal • Trial Begins • JML(Rule 50(a) or directed verdict) Appeal • Jury Verdict • JML(Rule 50(a) or JNOV) Appeal • Final Judgment Appeal