5. Pleadings Flashcards
What rule dictates what a pleading is and what are pleadings?
Rule 7
- Complaint
- Answer
- Answer to counterclaim
- Answer to crossclaim
- Third party complaint
- Answer to third party complain
- If the court orders one, a reply to an answer
motions are not pleadings
What rule dictates the general rules of pleadings?
Rule 8
According to Rule 8, what initiates the lawsuit and tolls the statute of limitation?
The Complaint, the plaintiff’s first pleading
What is the Twombly/Iqbal Plausibility Standard?
Not only specify that a complaint must be plausible on its face, but it must bring forth sufficient factual allegations that nudge a claim across the line from conceivable to plausible.
According to Rule 8, what is the defendant’s first pleading?
The Answer
What are 3 possible options for the defendant’s first pleading?
- Answer
- File pre-answer motion to dismiss (rule 12)
- Do nothing (default, maybe collateral attack)
If the defendant decides to answer, what should be included in their answer?
- Respond to factual allegations of the complaint
- Affirmative defenses
- Counter claims and/or cross claims
If the defendant decides to file a pre-answer motion, according to rule 12a how many days do they have to file the motion or respond if rejected?
If not waived under Rule 4(d) for notice- 21 days
If timely waived service under Rule 4(d)- 60 days
If timely waived service outside US- 90 days
If rejected, 14 days to respond with an answer unless the court states otherwise
According to Rule 12b, what are different motions to dismiss and which ones if not filed in the first motion are waived?
- Lack of SMJ
- Lack PJ*
- Improper Venue*
- Inadequate Process*
- Inadequate Service of Pleading*
- Failure to State a Claim
- Failure to Join a Party
*are disfavorable but can be amended as a matter of right under Rule 15
According to Rule 11, what are ethical considerations for pleadings?
- Every pleading must have a signature
- Every pleading must be to best of knowledge after reasonable investigation
- Pleadings cannot be presented for improper purpose
- Claims must be warranted by existing law or a non-frivolous argument for changing the law
- Claims must be backed by support (of will be)
What happens if Rule 11 for ethical consideration is violated?
If these considerations are violated then the opposing attorney can request a sanction or the judge can order a sanction sue sponte (without a motion).
There is a Safe Harbor Provision that allows the offending party to correct their error, amend, or withdraw within 21 days but does not apply when Judge acts sua sponte.
What rule dictates amendments to pleadings?
Rule 15
According to rule 15, what is a party restricted to when amending a pleading?
They may only amend once as a matter of course within
(a) 21 days after serving it
(b) 21 days after responsive pleading is served if response is required or 21 days after Rule 12 motion is served
(c) all other amendments must have either opposing party’s consent of the court’s permission. The court should freely give leave when justice so requires
What factors do the court consider when freely giving leave for amending a pleading?
Stage of litigation, good faith mistake. The court will deny if the amendment is in bad faith, undue delay, unfair prejudice, prior amendments, prejudice to opposing party, not legally viable (futile)
