7. Pleadings (Rule 8/11/12/15)

Question 1

What is required in a plaintiff’s complaint under Rule 8?

Answer 1

1) SMJ
2) Statement of claim
- ‘Short and plain’ statement
- Plausible claim for relief
3) Request for relief

Question 2

What is required in a defendant’s answer?

Answer 2

Admission/Denial of complaint’s allegations

Request for more information (failure to state claim)
- Court must review P’s complaint ONLY

Silence (implied admission)

Affirmative defences

Question 3

When should defendant assert defences?

Answer 3

Lack of SMJ/Failure to state claim
- Any time

Res judicata/SoL/SoF/fraud/self-defence/contributory negligence (affirmative defences)
- First response

Other defences
- First motion/response (including timely amended)

Question 4

When should defendant serve his answer under Rule 12?

Answer 4

If D filed pre-answer motion;

• Within 14 days after court denies motion
• Within 14 days after P serves more definite statement

If D filed NO pre-answer motion;

• Within 21 days after D receives service of process
• Within 60 days after P serves waiver of service request

Question 5

Must Plaintiff respond to Defendant’s answer/counterclaim?

Answer 5

Answer
- Must have leave of court => Can respond

Counterclaim
- NO leave of court required => Can respond

Question 6

When must amended pleadings be served under Rule 15?

Answer 6

Defendant
- Within 21 days after service of own pleading

Plaintiff
- Within 21 days after service of Defendant’s first pre-answer motion/response (whichever comes first)

Question 7

Can amended pleadings be served later than required?

Answer 7

By leave of court (in interests of justice)

• NO undue delay
• NO bad faith
• NO undue prejudice

By parties’ consent

Question 8

What is required for service of amended pleadings if Statute of Limitations has expired?

Answer 8

Same T/O (relation back doctrine)

- Amended pleading ‘relates back’ to original pleading filing date

Question 9

What is required for changing parties?

Answer 9

Relation back doctrine

1) New party had sufficient notice within period between complaint + service of process
2) New party knew/should have known he should be originally named in case
3) Same t/o

Question 10

What is required for Supplemental Pleadings?

Answer 10

1) Court’s permission
2) NOT same t/o
- Unrelated claims can be tried in single proceeding

Question 11

What is Rule 11 of Federal Rules of Civil Procedure?

Answer 11

1) Lawyer/Party presents to court at hearing
2) Pleading/Motion (signed)
3) Certifying it is warranted to his best knowledge/belief based on reasonable inquiry
- Legal contentions supported by existing/new law
- Factual contentions supported by existing evidence/likely discovered evidence (by reasonable investigation)
- NO improper purpose (harassment, delay)

Question 12

What may court or opponent do if a party breaches Rule 11?

Answer 12

Court

1) Serve order describing breach
2) Serve order requesting Party to explain why Court should not impose sanctions

Opponent

1) Give Party advance notice of motion to impose sanctions
2) Give Party 21 days to fix violation
2) If Party fails to fix => Serve motion to impose sanctions

Question 13

What type of sanctions can be imposed on a lawyer/party for breaching Rule 11?

Answer 13

Monetary sanctions (by Court’s discretion - deter repetition of violation)

• Attorney’s costs
• Court costs (due to improper certification)

Non-monetary sanctions (by Court’s discretion)

• Strike pleading
• Establish dispute in favour of other party
• Default judgment

Question 14

What is required for allegations re fraud/mistake in complaint?

Answer 14

Particularity of circumstances

Question 15

Who may court impose sanctions on?

Answer 15

Lawyer (most likely)
- Non-warranted legal conclusions

Parties (less likely)
- Perjury re facts

Question 16

How many times can pleadings be amended?

Answer 16

Once

Question 17

What type of claims must be made with particularity?

Answer 17

Fraud

Mistake

Special damages