FRCP: Pleadings Flashcards
Complaint requirements
filing a complaint commences action. requirements
a. statement of grounds of SMJ
b. short and plain statement of the claim showing entitlement for relief (must be plausible– plausibility up to judge)
ii. fraud, mistake and special damages—must be pleaded with EVEN MORE DETAIL
c. demand for relief sought (damages, injunction)
d. doesn’t have to include PJ or venue
∆ can challenge the complaint with a R 12b6 motion.
Response
∆ must respond either by motion or answer within 21 days
a. if you waived service, you get 60 days from when π mailed you the waiver
b. Motions (Rule 12): are not pleadings, they are requests for court order
i. issues of form
1. 12e—motion for more definite statement, so vague ∆ cant respond
2. 12f motion for strike—asks court to remove immaterial, impertinent or scandalous things
ii. 12b defenses
1. lack of SMJ
2. lack of PJ
3. improper venue
4. improper process
5. improper service
6. failure to state a claim
7. failure to join indispensable party
Which 12b defenses are waivable
ii. 12b defenses
1. lack of SMJ
2. lack of PJ
3. improper venue
4. improper process
5. improper service
6. failure to state a claim
7. failure to join indispensable party
iii. this can be in a motion or in the answer
1. which are waivable? def on the bar
a. #s 2-5 (lack of PJ, improper venue, improper process, improper service)
2. waivable defenses must be put in FIRST rule 12 response (motion or answer) or else they’re waived
How long do you have to respond if your 12b motion is denied
14 days
What 2 things must ∆do in answer
respond to each allegation + raise affirmative defenses
a. respond to each and every allegations
i. admit
ii. deny
iii. state that you lack sufficient info to admit or deny
1. has the effect of a denial
2. cannot use this if the answer is in your control— no you have a duty to investigate things in your control
iv. ∆ is never deemed to admit damages
b. raise affirmative defenses—inject a new fact. classic ones are SOL, statute of frauds, res judicata, and self-defense.
i. if you fail to raise an affirmative defense, may be deemed to waive it.
ii. if waived cannot bring evidence on that
Counterclaim
claim against an opposing party
a. the counterclaim is part of ∆’s answer.
b. after ∆ serves counterclaim, π must respond within 21 days of service.
c. 2 Types of counterclaim
i. compulsory—arises from same T/O. unless you have already filed the claim in another case, you must file or it is waived.
2. Even if case is dismissed- preserve your right to your counterclaim
ii. permissive—does not arise from same T/O. may sue on separate case
d. REMEMBER—every claim in fed court must be assessed for either diversity or FQ jdxn. if so, its ok in fed court. if not we try supplemental jdxn.
Crossclaim
claim against a co-party. must arise from same T/O as the underlying action. But not compulsory. can sue separately
a. if it doesn’t meet SMJ then you may still have supplemental jdxn. as long as it’s not a claim by a π.
i. π→ π claim, can’t use supplemental jdxn.
ii. ∆→ ∆ claim that doesn’t meet SMJ, may still have supplemental jdxn as long as same T/O
Additional claims
once you file a counterclaim or Crossclaim you can join an additional claim to it, even if that claim has nothing to do with the others
a. additional claim must invoke federal SMJ
i. so must assess whether it invokes diversity or FQ
ii. if neither diversity nor FQ is met, then try supplemental.
When do the parties have a right to amend
i. π has right to amend ONCE within 21 days after ∆ serves first rule 12 response.
ii. ∆ has right to amend once within 21 days of serving his answer.
1. if ∆ forgot to raise an affirmative defense, he can now assert waivable defenses and raise the affirmative defense he forgot.
iii. issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties’ express or implied consent. In such a case, a party may move at any time, even after judgment, to amend the pleadings to conform them to the evidence and to raise the unpleaded issue.
If you pass the time for a right to amend, what can you do?
seek leave of court. will be granted if justice so requires
i. factors:
1. delay, you waited too long
2. prejudice, would prejudice somewhere
3. futility of amendment, for ex the amendment isn’t valid
Variance
only at trial. the evidence at trial doesn’t match what was pleaded.
a. if ∆ doesn’t object to new evidence, then at or after trial, π can move to amend the complaint to conform to the evidence.
b. if ∆ does object, the new evidence is inadmissible because it is at variance with the pleadings
Amendment after the SOL has run, AKA “relating back” – either for claims or to change the ∆
a. to join a claim not asserted originally—
i. amendment pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading.
ii. treat the amended pleading as though filed when the original filed, so it avoids the SOL problem.
b. to change a defendant after the statute has run: will relate back if
i. it concerns the same T/o
ii. the new party knew of this case within 90 days of the filing
iii. new ∆ knew that but for a mistake, that ∆ would have been named originally
iv. applies when π sued the wrong ∆ first, but the right ∆ knew about it
1. for ex, π sues subsidiary company, should have sued parent.
Supplemental pleading
things that happened after the pleading was filed
a. π sues ∆ for breach of k, after case filed ∆ punches π in the nose. π moves to file a supplemental pleading.
i. never a right, must move for it and it’s discretionary with the court
Rule 11
applies to all docs except discovery
b. Certify every time you present a position to the court.
that after reasonable inquiry
i. paper not for improper purpose
ii. contentions are warranted by law
iii. factual contentions and denials have evidentiary support or are likely to after further investigation
c. if there is a violation, the party , attorney or firm can be sanctioned
i. violations include things like
1. failing to perform basic research on stuff like SOL
ii. firms are jointly responsible with atty
iii. must have chance to be heard before sanctions
iv. purpose—deterrence not punishment
1. often there are nonmonetary sanctions (professionalism classes)
2. should ordinarily be paid into the court as a penalty
3. sanction may include, if warranted for effective deterrence, an order directing payment to the movant of part of all reasonable attorney fees.
4. But only those fees directly resulting from the violation
Serving a Rule 11 motion to the other party
v. if other party violates rule 11, you must serve the motion to the other party, the other party then has 21 days to fix the problem. after 21 days can file the motion
vi. Court CAN raise rule 11 problems sua sponte
1. to do so, issues order to show cause why sanctions shouldn’t be imposed. must give chance to be heard before imposing a sanction.
