Opposing a motion to dismiss under Rule 12(b)(6)

Opposing a motion to dismiss under Rule 12(b)(6) in United States District Court is the topic of this blog post.

A Motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure as used in the Federal Courts is analogous to a general demurrer as is used in California Courts. The motion seeks to have a Complaint dismissed on the grounds that it fails to state facts sufficient to constitute a cause or causes of action. The motion to dismiss can also be used in Bankruptcy Court litigation as well.

While motions to dismiss under Rule 12(b)(6) are often filed they are rarely successful as numerous Appellate Courts have ruled that a motion to dismiss under Rule 12(b)(6) is disfavored and is rarely granted.

A motion to dismiss under Rule 12(b)(6) is disfavored and rarely granted.  Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986) ("It is axiomatic that '[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'") (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1357, at 598.

The issue is not whether the plaintiff will prevail or not. The issue is whether the plaintiff is entitled to offer evidence in support of their claims.

The U.S. Supreme Court has stated: "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely, but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Rather, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"In reviewing the allegations, this Court construes the complaint in a light most favorable to the plaintiff, accepting all of the factual allegations as true and determines whether the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir. 2004).

Even a cause of action for fraud which must be specifically pleaded satisfies the particularity requirement for fraud if it identifies circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations. Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir.1987).

And Courts rarely grant a dismissal of a complaint without leave to amend.

"Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Schneider v. California DOC, 151 F.3d 1194, 1196 (9th Cir. 1998).

"Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim." Wright and Miller, Federal Practice and Procedure, vol 5A, 1357.

Attorneys or parties who wish to view a portion of a sample opposition to a motion to dismiss for sale by the author please use the link shown below.

http://www.scribd.com/doc/25605615/Sample-Opposition-to-Motion-to-Dismiss-under-Rule-12-b-6


The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.com

Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation.  http://www.legaldocspro.net/newsletter.htm

Requesting judicial notice in California

Requesting judicial notice in California is the topic of this blog post.

The statutes governing judicial notice are contained in Evidence Code Sections 450 through 460.

Evidence Code § 451 states that the Court must take judicial notice of the following matters:

(a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.

(b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code or by Section 1507 of Title 44 of the United States Code.

(c) Rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code and rules of practice and procedure for the courts of this state adopted by the Judicial Council.

(d) Rules of pleading, practice, and procedure prescribed by the United States Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in Bankruptcy.

(e) The true signification of all English words and phrases and of all legal expressions.

(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.

Evidence Code § 452 states that the Court may take judicial notice of the following matters:

(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.

(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.

(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.

(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.

(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.

(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

Judicial notice may not be taken of any matter unless authorized or required by law. See Evidence Code § 450.

Any party requesting judicial notice must give notice of such request to each adverse party to enable that party to meet the request, and must furnish the Court with sufficient information to enable it to take judicial notice of the matter. See Evidence Code § 453.

Note that judicial notice of other Court records and files is limited to matters that are indisputably true. See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App. 4th 97, 113. This means that judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed therein.

However, there are exceptions to this rule when a party amends a pleading, particularly a verified pleading and omits material factual allegations that were included in the original pleading without an adequate explanation.

"The general rule is that material factual allegations in a verified pleading that are omitted in a subsequent amended pleading without adequate explanation will be considered by the court in ruling on a demurrer to the later pleading." Shoemaker v. Myers (1990) 52 Cal. 3d 1, 13.

Judicial notice is a very useful tool for any party involved in California civil litigation. They just need to be aware of its limitations.

Attorneys or parties in California who wish to view a sample request for judicial notice created by the author can click below.

www.scribd.com/doc/37754803

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.com

Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm

Demanding a bill of particulars in California civil litigation, part two

This blog post is part two of a discussion of the issues involved in demanding a bill of particulars in California civil litigation.

A demand for a bill of particulars is a procedure outside the Discovery Act, but it serves a discovery purpose: It enables defendants who have been sued generally on an account (certain actions in contract or quasi-contract) to force plaintiff to itemize the account on which the complaint is based.

This procedure dates back to early common law. When plaintiff sued on a common count, the pleadings gave no specifics as to the nature of the claim—i.e., whether contract, quasi-contract, etc. Therefore, courts allowed a "demand for bill of particulars" to enable defendant to discover what was being claimed and to prepare for trial. Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative procedure and it has certain advantages, as well.

Advantages:

The bill of particulars has some distinct advantages over Discovery Act procedures:

Inexpensive:

It is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions.

Conclusive:

Answers to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive (contradictory evidence is also admissible). On the other hand, a bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars .

Does not count against "Rule of 35":

Since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act. Thus it is particularly useful in limited civil litigation where parties are strictly limited to 35 discovery requests pursuant to Code of Civil Procedure § 94.

Disadvantages:

The big disadvantage is that a bill of particulars is only available in actions on "an account". Therefore, it is not an alternative to depositions and interrogatories in most cases.

Many attorneys simply fail to recognize that, in the appropriate action, a demand for a bill of particulars can be very useful in forcing plaintiff to provide all of the documentation supporting their claim This is particularly true when plaintiff is an assignee of a finance or credit card company and thus may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars. And with the rise of securitization of credit card debts and consolidation of credit card issuers this means that it is now more likely than ever that plaintiff may have filed suit while having little, if any, documentation to support their claim.

And as previously mentioned the response of plaintiff to the bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars.

Attorneys or parties in the State of California who wish to download a sample demand for a bill of particulars can click below.


http://www.scribd.com/doc/25560416/Sample-Demand-for-Bill-of-Particulars-for-California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.net
 

Amending a Judgment in California

http://www.legaldocspro.com/blog/code-of-civil-procedure-section-582-5-motion-to-amend-a-judgment-in-california/