H1 Flashcards
Claim for Relief
A pleading that states a claim for relief
must contain:
1) a short and plain statement of the grounds for the
court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
2) a short and plain statement of the claim showing
that the pleader is entitled to relief; and
3) a demand for the relief sought, which may include
relief in the alternative or different types of relief.
Rule 9 Heightened Pleading
“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Exactly where and how the fraud or mistake was committed.
Rule 12 MTD
- Tests the sufficiency of a complaint
- Allegations must be accepted as true
- Will consider only the allegations made within the four corners of complaint (no outside evidence)
Twombly
Complaint “contain[s] either direct or inferential allegations
respecting all the material elements necessary to sustain recovery under some viable legal
theory.” Bell Atlantic Corp., 550 U.S. at 562
Iqbal
a short and plain statement showing entitlement to relief, it must do more than merely state the elements of the claim and assert that they happened—i.e., it must provide more than mere legal conclusions. Rather, it must offer distinct factual allegations sufficient (if taken as true) to create the reasonable inference that the plaintiff is “plausibly” entitled to prevail.
12(e)
request for definitive statement
12(f)
motion to strike
elements of answer
- Admits or denies factual allegations
* Must specifically respond to each allegation in good faith:
admit; deny; or state that D lacks sufficient info to admit or deny
* Failure to respond to an allegation is treated as an admission - Rule 12 defenses that have not been waived
- Affirmative defenses
* Taking the P’s facts as true, P is not entitled to relief because . . .
* Rule 8(c) has list of common affirmative defenses - Counterclaims and cross claims
Rule 11(b)
By presenting a document to the court, the signer certifies that:
It is not being presented for any improper purpose, such as to harass or cause unnecessary delay.
The legal contentions are warranted by existing law or a nonfrivolous argument for changing the law.
The factual contentions have evidentiary support or are likely to have evidentiary support after further investigation.
The denials of factual contentions are warranted by the evidence or are reasonably based on a lack of information.
Amending a pleading
A party may file an amended pleading
without leave ONLY ONCE
– any second amended pleading will require
leave of court or consent of the other party
Rule 15(a)(1)
A party may amend once within:
– 21 days of serving the original pleading; or
– If a responsive pleading is required,
whichever is earlier:
* within 21 days after service of that responsive
pleading; OR
* within 21 days after service of motion under
Rule 12(b), 12(e), or 12(f)
Rule 15(c)(1)(B): An amendment relates back
“whenever the claim or defense asserted in the
amended pleading arose out of the same
conduct, transaction, or occurrence set forth . . .
In the original pleading”
Still must pass 15a i.e, a two-part analysis.
Amending before trial
Rule 15(a)(2): In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
Factors considered in determining if “justice so requires”:
* Undue prejudice to opposing party
* Undue delay
* Bad faith or dilatory motive
* Repeated failure to cure deficiencies by amendments previously allowed
* Futility of the amendment
Amending during or after trial
Amendments Based on Objections:
- If a party objects that evidence is outside the scope of the pleadings, the court may allow an amendment.
- The court should allow amendments freely when it aids in presenting the merits, unless the objecting party would be prejudiced.
Issues Tried by Consent:
* When issues not in the pleadings are tried with the express or implied consent of the parties, they are treated as if they had been pleaded.
* A party can move to amend the pleadings to conform to the evidence, even after judgment.
* Essentially, if both parties act as if an issue is being litigated, even if it was not in the original pleadings, the court will treat it as if it was.
Plaintiff joinder–joinder of claims
Rule 18(a)—can join all claims against an opposing party, even if unrelated
Permissive Plaintiff joinder
Persons Who May Join or Be Joined.
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert a claim with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
Defendant counterclaims
(a) Compulsory Counterclaim.
(1) In General. A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
Rule 12(h)
A party waives defenses 12(b)(2)-(5) by; omitting it from another rule 12 motion; or, failing to raise in responsive pleading or amended response.
12(b)(6) can be raised later (at trial).
