M6: Pleadings

Question 1

True or false: Under Rule 12, response to a summons must be served within 5 days days after service of summons

Answer 1

False, under Rule 12, response is acceptable up to 21 days after summons is served.

Question 2

What is the Rule challenging sufficiency of a complaint in federal court?

Answer 2

Rule 12(b)(6

1) Court must take all well-pleaded allegations as true
2) Court will consider only those allegations within “four corners” of complaint
3) If the well pleaded factual allegations do not plausibly show an entitlement to relief under applicable law, the court should grant a 12(b)(6) motion.
4) Not enough that allegations are equally consistent with an “innocent” explanation as with a liability-creating explanation

Question 3

True or false: P’s in federal court are not required to plead factual allegations re: each and every element of a theory of liability under an applicable law (elements-pleading), but pleading allegations for each element is good practice

Answer 3

True

Question 4

True or false: Rule 8 does not require fact pleading (specific facts in sufficient detail to suggest plausibility of liability)

Answer 4

True - Twombly and Iqbal taught us this

Question 5

Which of the following responses by a Defendant to service of the complaint and summons constitutes a default?

A. Defendant does not answer, but files a motion to dismiss for improper venue within 21 days. The motion is denied.

B. Defendant answers within 21 days and admits the allegations of the complaint.

C. D’s lawyer files an appearance within 21 days by submitting a paper to the clerk, giving her name, address, and bar #, stating that she is appearing for D

D. D herself brings a paper to the clerk saying that she plans to defend, then shows up in court on the 21st day saying she is ready to go to trial.

E. D answers the complaint 25 days after service of summons and complaint.

Answer 5

A. Not a default. Whether the motion is granted or denied is irrelevant. Initial defense does not have to be successful. By actively defending in a timely manner, you are following FRCP.

B. Not a default. By answering, D has pled. Any answer to whether or not there will be a judgement is too soon.

C. Default. Merely showing up doesn’t constitute a response. D should have done something more to demonstrate a desire to defend.

D. Not a default, since D showed up herself and made an effort to defend herself.

E. Default, since the SOL of response was 21 days. Unless there is good cause, the court will probably not grant the extra four days.

Question 6

True or false: once a clerk has entered a default under Rule 55 (a), the non-defaulting party enforce the entry to collect damages from the defaulting party

Answer 6

False

There’s a difference between entry of default (clerk) under Rule 55(a) and and default judgment ruling by a court under Rule 55(b)

Question 7

Is a default judgment under Rule 55(b) mandatory?

Answer 7

No, courts have discretion to enter a default judgment or to decline.

Question 8

How does the expression “sticks and stones may break your bones, but names will rarely hurt you” relate to Rule 12 motions in a complaint?

Answer 8

Rule 12(f) motion to strike redundant, immaterial, impertinent or scandalous matter is mainly a waste of time in a federal court - even if they are granted, it merely delays action

Question 9

What is the “four corners rule” when it comes to 12(b) motions? Are there any exceptions.

Answer 9

“four corners rule” –> court takes the well-pleaded allegations of the complaint as true and only those. They will not look beyond the pleading to outside materials for additional facts. They can look beyond them for the law, since the court can always take account the law.

1) After D answered the complaint, D can file a 12(c) motion for judgment on the pleading. A court can consider the well-pleaded factual allegations of all the pleadings, the answer (and reply, if any), as well as the complaint.
2) Parties may present matters outside the pleadings — facts outside the four corners — to support or oppose a Rule 12(b)(6) motion to dismiss or failure to state a claim.

Question 10

True or false: If a party submits a pre-answer motion, it triggers Rules 12(g) and 12(h)

Answer 10

True
1. 12(g)(2) is triggered when pre-answer motion is filed: forbidding the motioning party to making another motion under Rule 12.

2. Then 12(h)(1)(a) provides that any omission of Rule 12 motions waives the defense for future use. They are gone for good.

Question 11

Why are the defenses and objections under Rule 12(b)(2)-(5) singled out as “now or never” motions?

Answer 11

1) These should be evident at the start of a civil action
Ex: D would know if the court can exercise PJ or if process was not properly served

2) These motions usually delay a lawsuit, rather than end it. Waiver says that you have to move for them all together and at the start, otherwise you’re giving the opportunity up.

Question 12

Can parties rase the Rule 12(h)(2)-(3) through a post answer motion or pleading any time before the close of the trial?

Answer 12

Yes, these are “special treatment” defenses

12(h)(2): No second pre-answer motion allowed to dismiss for failure to state a claim or join a party who is required to be joined by Rule 19. BUT parties can raise these defenses by a post-answer motion any time before the close of a trial.
(parties may need to be joined, analysis needed for failure to state a claim)

12(h)(3): Motions to dismiss for lack of SMJ at any time
(courts must dismiss this at any time, it’s not up to a personal defense)

Question 13

True or false: It’s not possible to waive the defense of failure to state a claim or join a required party under 12(h)(2)

Answer 13

False. While the motion doesn’t have be submitted in the response or pre-answer, failure to state a claim or failure to join a required party is waived if not done before close of the trial.

Question 14

True or false: To avoid waiving a 12(b) defense, assert them in your pre-answer motion or answer, whichever comes first

Answer 14

True

Question 15

Hunter sues Offshore for breach of contract. Offshore moves to dismiss for insufficient process (papers were deficient). The court denies the motion.

May Offshore now move to dismiss for failure to state a claim and insufficient service of process (to challenge sufficiency of service)? Or has Offshore waived those defenses?

What if Offshore argues that the defense of insufficient service of process was unavailable when it filed for its first pre-answer motion. Should they be allowed a second pre-answer motion?

Answer 15

Offshore cannot move to dismiss for failure to state a claim and insufficient service of process once they first moved to dismiss for insufficient process. No second pre-answer motion is permitted.

Offshore has waived the second round of defenses in the sense that they omitted the insufficient service of process. They can still, however, assert failure to state a claim by answer or later motion up until the end of the trial under Rule 12(h)(2)

Rule 12(g)(2) exempts unavailable defenses from its omnibus requirement… but it’s unlikely that the defense of insufficient service of process was unavailable.

Question 16

Are plaintiffs allowed to challenge the legal sufficiency of a defense (via response to complaint)?

Answer 16

Yes, P’s get a motion to strike for insufficient defense, identical to Rule 12(b)(6) — P’s version of the motion

Question 17

Under Rule 8(b)(3) can Defendants enter a general denial, putting P’s entire claim at issue?

Answer 17

Technically, yes. Rule 8(b) allows this, but general denial is essentially obsolete in today’s courts.

Defendant will have to admit at least some of the allegations of the complaint. It’s highly unlikely that P got each and every detail of the complaint wrong.

Question 18

What is the difference between an affirmative defense and denial?

Answer 18

Affirmative defenses are excuses from liability, even if P proves its allegations. Denial is simply saying “I didn’t do it.”

Question 19

Billy Builder is putting a huge garage right on his property line, and his excavation equipment crosses the line, leaving big ruts in Neil Neighbor’s property. It also knocked down Neighbor’s Japanese maple.

Neighbor sues Builder, alleging that Neighbor owns the damaged property and that Builder entered the property and did serious damage. Builder answers…

Which of the following should be pled as an affirmative defense?

A. Builder never went upon Neighbor’s Property
B. Builder had permission from Neighbor to enter the property.
C. By adverse possession (open and notorious claim of ownership for a length of time), Builder had previously acquired the property that was damaged.
D. Neighbor negligently failed to prune his oak, as a result of which it fell on Builder’s property, causing extensive damage to his garden, to which he is entitled to recover $1500.

Answer 19

B. Builder had permission from Neighbor to enter the property. The answer sounds like Builder had a license/easement. It would likely take Neighbor by surprise if Builder argued at trial, so should be listed as an affirmative defense.

Why not C? It’s a denial of Neighbor’s ownership, not an affirmative defense.

Question 20

Which of the following, if any, could be stricken according to Rule 12(f):

A. In a claim for breach of contract of the sale of a car, that car was a “death trap”
B. In a negligence claim, D acted “illegally”
C. In a claim for conspiracy to commit fraud, the conspirators were “racketeers”
D. In a breach of contract claim against a stock broker, the brokerage firm for which he worked had been sanctioned by the SEC for unrelated conduct two years ago.
E. In an action for missing child support payments, D was consorting with a prostitute.

Answer 20

Two most likely to be allegations stricken from the answer:

D. In a breach of contract claim against a stock broker, the brokerage firm for which he worked had been sanctioned by the SEC for unrelated conduct two years ago. –> immaterial to the claim, added for color

E. In an action for missing child support payments, D was consorting with a prostitute. –> Has nothing to do with child support payments

Question 21

True or false: A Rule 11 motion can be made separately or with other motions (ex: 12(b)(6) or Rule 56).

Answer 21

False: Rule 11 motions must be made separately from other motions AND must be served on the offender 21 days before it is filed with the court.

Question 22

Can a court act on its own or do they have to wait for a Rule 11 motion to impose sanctions on a offending claim?

Answer 22

Courts can act sua sponte (on its own initiative), but due process requires notice and a chance for the offender to explain or defend.

Thus, courts have to act with extra care in imposing sanctions that are “akin to a contempt of court”

Question 23

True or false: Courts can exercise unlimited judgment and discretion when imposing sanctions under RUle 11(c)(4)

Answer 23

False. Sanctions are limited to what suffices to deter repetition under Rule 11(c)(4).

The objective is deterrence not punishment or compensation.

Question 24

Plaintiff Peter Pint’s complaint asserts a single claim against a defendant for violating a federal statute, although every circuit to have considered the statute has found that it does not apply to the fact pattern alleged in the complain.

Defendant moves to dismiss for failure to state a claim and the court grants the motion.

In which of the following situations would sanctions be proper:

A. Court grants defendant’s motion to dismiss Pint’s complaint for failure to state a claim
B. Defendant moves, without more, for Rule 11 sanctions.
C. Court issues an order to show cause why Pint and his lawyers should not be sanctioned. After Pint’s lawyer files a brief in response and the court holds a hearing, the court imposes a sanction on both.
D. Same facts as C, but in opposing Defendant’s motion to dismiss, Pint’s lawyer argued that the circuit law against him is wrong, based on a law review article from the leading law school in the jurisdiction and two dissenting opinions.
E. Same facts as D, but before Pint’s lawyer filed the complaint, she sent a copy to Defendant with a cover letter threatening to file, which she said would generate “reams of terrible publicity” unless Defendant paid Pint a large sum of money for his alleged injuries. When defendant ignored the threat, Pint’s lawyer filed the complaint.

Answer 24

Likely none of them.

A. Needs more, losing doesn’t automatically violate Rule 11.

B. Defendant should have served a motion for sanctions on Pint’s lawyer within 21 days before it files its motion with the court. Safe-harbor rule: gives parties time to withdraw or amend the complaint.

C. Sanctions against Pint are improper. Perhaps if we knew more about the violation, Pint’s lawyer could be sanctioned.

D. There’s actual support for Pint and his lawyer’s argument.

E. Threats are not necessarily a violation of Rule 11.

Question 25

Plaintiff Paula files a complaint and, one week later, amends the complaint. Is this allowed?

Answer 25

Yes, under Rule 15(a)(1), a party may amend the original pleading once without leave of court within 21 days of serving that pleading.

Question 26

Plaintiff Peter amends his complaint four weeks after serving it and two weeks after Defendant Daniel files a 12(b) motion to dismiss for failure to state a claim.

Is this allowed?

Answer 26

Yes. Even though more than 21 days have passed since Peter’s complaint was served to Daniel (cannot amend under Rule 15(a(1)(A)), he can still amend without leave of court Rule 15(a)(1)(B) within 21 days of Daniel’s motion to dismiss.

Question 27

Defendant Daniel amends his answer two weeks after serving it to Plaintiff Peter.

is this allowed?

Answer 27

Yes, since complaints, answers, and replies (when permitted) are all pleadings. Rule 15(a(1)(A) grants a 21-day window fow amendment without leave for all pleadings.

Question 28

Defendant Daniel serves an answer to Peter Plaintiff’s complaint, in the answer he includes various defenses and a counterclaim. Peter serves a Rule 12(f) motion to strike one of the defenses. 21 days later, Daniel amends his answer.

Is this allowed

Answer 28

Yes. An answer that contains a counterclaim is a pleading to which a responsive pleading is required. Rule 15(a)(1)(B) gives Daniel 21 days to amend after being served with the 12(f) motion.

Question 29

Peter serves a complaint on Daniel. Daniel requests and is granted a three-week extension of time to answer. The answer is filed six weeks after service of the complaint on Daniel. Two weeks later, Peter amends his complaint.

Is this allowed?

Answer 29

Yes, this is a timely amendment under Rule 15 (a)(1)(B) — the amended complaint is within 21 days after service of the answer.

Question 30

To what pleadings is a responsive pleading required?

Answer 30

Rule 7(a) dictates which pleadings require a responsive pleading, including:
+ D’s answer to P’s complaint
+ P’s answer to D’s counterclaim
+ Co-D serve an answer to crossclaim
+ TPD must serve answer to TPC as part of interpleader

Question 31

If a Defendant files a 12(b) motion to dismiss and the court grants the motion before the Plaintiff can make an amendment, can the Plaintiff still amend?

Answer 31

The amending party can no longer do so without leave. However, many district courts will grant a motion to dismiss the complaint “with leave to amend” by a certain date if they believe P could cure the deficiency.

Question 32

Once a pleading has been amended, what happens next?

Answer 32

Under Rule 15(a)(3), Once a pleading has been amended it is a new pleading. The opposing party has the same right to respond to the amended pleading as it did to the original pleading.

Question 33

True or false: A party’s chances of obtaining leave to amend does not narrow after trial starts

Answer 33

False. Absent consent to the amendment by opposing party, chances of obtaining leave to amend narrows after trial starts

Question 34

Washington is injured using a chainsaw and sues the manufacturer, Lincoln Products, for negligence in designing it.

Lincoln pleads the affirmative defense of contributory negligence. Washington testifies that he read the safety instructions that accompanied the chainsaw and offers them into evidence, without objection from Lincoln.

At the conclusion of the trial, Washington seeks to amend to add a claim against Lincoln for failure to warm based on its inadequate safety instructions. By failing to object to his testimony about the safety instructions and his proffer of the instructions as evidence, Lincoln impliedly consented to trying this additional claim.

Should the court permit the amendment?

Answer 34

No. Washington won’t be able to show that his failure to warn theory was tried by implied consent.

Rule 15(b)(2) states that all parties clearly understood that they were trying the unpleaded issue. That’s not true here.

The evidence that Washington had read the instructions was relevant to an issue that was already in the case. When Washington’s counsel offered this evidence, Lincoln’s counsel would not realize that Washington was injecting a new theory of liability — failure to warm — into the case. To argue after the fact that the parties were trying a different issue to which the same evidence could be taking Lincoln by surprise.

Question 35

The original complaint alleges that D breached a contract for sale by not delivering lumber as promised on June 1, 2008. The amendment adds the claim that D breached a different contract for sale by delivering defective concrete on July 15, 2009.

Does this amended claim relate back to the original pleading under Rule 15(c)? Assume the SOL has already run.

Answer 35

No. The original complaint is about lumber and the amendment is about an entirely different contract at a different time and a different breach. These are distinct contracts and claims, sharing nothing more than the identities of the parties.

Rule 18 allows joinder of unrelated claims and has no transaction requirement. But 15(c) does require relation between original and amended claim. To allow this amendment would strip D of protection of SOL for the second contract.

Question 36

The original complaint alleges that D lawyer committed malpractice when he gave bad legal advice. Amendment alleges that the advice breached an implied covenant of competency in a contract of representation between the client P and lawyer, pursuant to which he gave advice.

Does this amended claim relate back to the original pleading under Rule 15(c)? Assume the SOL has already run.

Answer 36

Yes. The conduct that gave rise to the malpractice complaint was the provision of advice by the lawyer to the plaintiff client. The amendment assets a contract claim that arises out of the same conduct.

The lawyer was on notice from the original complaint that he had to collect and preserve evidence about this legal advice (maybe his entire representation of P).

This is classic relation back, all P has done is add a new legal theory for D’s liability for the same conduct.

Question 37

A complaint alleges that D police officers falsely arrested P when they forcibly halted a bar fight in which P was engaged. The amendment alleges that the officers libeled P five weeks after the bar fight arrest when they told a reporter that P was drunk during the bar fight.

Does this amended claim relate back to the original pleading under Rule 15(c)?

Answer 37

Likely not. Under 15(c)(1)(B) the discussion with the reporter was not directly out of the officer’s conduct at the bar fight. While it could be said that “but for” the arrest, the discussion with the reporter would not have happened, the critical issue for relation back is notice.

It is not apparent that notice of the claim about the bar fight would cause the officers to collect and preserve evidence of discussion with reporters.

However, insofar as the libel claim could turn, in part, on the truth of what they told the reporter about the bar fight, there is an overlap.

Question 38

In July 2000, a week before the three-year SOL passes, Pierre sues Dominique in federal court for breach of contract to design a computer system for his store in Calpurnia, IL. In July 2001, he moves to amend his complaint to add a claim for violation of the state Consumer Protection Act., based on the same dispute.

The Consumer Protection Act has a two-year SOL, which accrued at the same time as the three-year SOL.

Which of the following is correct?
A. The second claim would not be barred by the limitations period as long as the judge grants the motion to amend.

B. The second claim would “relate back” to the date of the original filing of the case and therefore would not be barred by the SOL.

C. The second claim would be barred by the limitation period because it would not “relate back” to the original filing under Rule 15.

D. The amendment will be barred, even if it relates back to the filing of the original complaint.

Answer 38

D. The amendment will be barred, even if it relates back to the filing of the original complaint.

A is incorrect b/c grant of leave to amend does not decide SOL issues. Pierre could amend and Dominique might answer, then seek summary judgment.

B is incorrect because even with the “relates back” backdate to the filing of the original complaint, it doesn’t go back far enough. SInce the CPA limitation period is only two years, even the original filing date is 51 weeks too late for the new claim.

C is incorrect because the amendment arises from the same conduct/transaction/occurrence sent out in the original complaint and relates back.

D is correct. Always pay attention to the SOL because it’s what causes the problem.

Question 39

Dick and Davina are in a car that runs down pedestrian Palmer on New Years Day, January 1, 2008. Pamer sues Davina, thinking she was the driver. The applicable period of limitation is two years.

Palmer filed her complaint on December 30, 2009 and properly serves Davina ten days later. Is Palmer’s action barred by the SOL?

Answer 39

If the statute requires filing rather than service of a complaint to toll the statute, Palmer’s filing is just under the wire. It’s also timely even if the SOL requires filing within the limitations period AND service no more than 30 days thereafter.

Question 40

Dick and Davina are in a car that runs down pedestrian Palmer on New Years Day, January 1, 2008. Pamer sues Davina, thinking she was the driver. The applicable period of limitation is two years. Palmer filed her complaint on December 30, 2009 and properly serves Davina ten days later.

On February 1, 2010, Davina shows Dick a copy of the complaint. On June 1, 2010, Palmer discovers that Dick was really driving the car. She immediately seeks leave to amend the complaint to name Dick as the defendant.

Dick objects that amendment would be futile, since it is barred by the SOL. Would the amendment relate back to December 30, 2009?

Answer 40

Even though the SOL expired on January 1, 2010, and amendment is offered five months later, Dick “the party being brought in by the amendment,” saw the complaint in February 2010. This is well within the 90-day period by Rule 4(m) for service of the original complaint and summons.

As Dick go this “notice” within the service period, the amendment complaint relates back to the filing of the original complaint on December 30, 2009, providing that the notice meets the other requirements under Rule 15(c).

Question 41

P decides to sue the owner instead of the driver of the car for her injuries in an auto accident. P thinks the owner has deep pockets and the driver does not. After the SOL runs out, P discovers the owner is not that rich either, so she amends her complaint to add the driver.

Would this relate back under 15(c)?

Answer 41

No. Even though the amendment clearly rises from the same accident and was made to correct a mistaken tactical decision, it is not the kind of mistake that Rule 15(c) was intended to cover.

Question 42

Plaintiff is beaten by Officer Jones and two unknown police officers. After she sues Jones for battery and for violating her civil rights, and the SOL has run, she discovers the names of the other two officers and amends to add them as defendants.

Is this allowed under Rule 15?

Answer 42

Narrow view = no, because Plaintiff’s must exercise diligence in discovering the identify of defendants.

Broader view = yes, because Rule 15 (c) allows for mistake with both misnomers and ignorance with regards to identity.

Question 43

Palin sues businessman Davis for breach of contract to fix a leak in her basement. She mistakenly fails to sue Jones’s associate, Dariq, not realizing that they are jointly legally responsible for performance of the contract.

Within the limitations period, however, Davis mentions the lawsuit to Dariq. After the SOL runs, Palin obtains leave to amend her complaint to add a claim against Dariq for breach of another contract to build a barn on her property.

Does her amendment relate back?

Answer 43

Amendments must arise out of the same transaction as the original pleading. This one does not. It involves a completely different contract, even though it is among the same parties.

A mere transactional nexus between the original pleading and amendment is not sufficient to give notice, when the new part was not originally in the lawsuit, but it is necessary. No relation back here.

Question 44

*Plaintiff owns a deli called Health Foods. Defendant runs a company that sells “organic” baked goods. Plaintiff entered into a contract with Defendant for the weekly delivery of organic oatmeal cookies. It turns out that the “organic” cookies are really repackaged highly-processed cookies that Defendant buys in bulk from a foreign wholesale company.

Defendant moved to dismiss for failure to state a claim, how should the court rule on the motion?

Answer 44

The court should grant the motion, because the complaint fails to allege special matters.

The complaint alleges fraud and so is required to plead “special matters.” FRCP 9(b) requires that, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”

Here, the complaint includes only the conclusory allegation that Defendant “fraudulently” delivered goods that did not comply with the contract and that Defendant engaged in fraud. Courts interpret the special pleading rules for fraud to require that the complaint allege the “precise misconduct” that constitutes the fraud. Generally, this heightened pleading requirement is met when the complaint alleges the who, what, when, where, and how of the fraudulent representation. Lerner v. Fleet Bank, N.A., 459 F.3d 273 (2d Cir. 2006) (to meet the requirements of FRCP 9(b) when fraud is alleged, “the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent”) (citations omitted).

Here, the allegations of the complaint do not meet this standard because they do not include the “when, where, and how” elements. Moreover, to allege fraud with particularity, the complaint must include specific facts to give rise to a “strong inference” of fraud, and the complaint here contains only a bare assertion that fraud occurred. Not only is this allegation insufficient to meet the heightened pleading requirement of FRCP 9(b), but also it likely would fail the general pleading rule of plausibility under FRCP 8 as interpreted by the Supreme Court in Bell Atl. Inc. v. Twombly, 550 U.S. 544 (2007).

Question 45

Plaintiff is the owner of a company that rents ski equipment. Defendant is a college student who writes a weekend column in the student newspaper about sports events. Defendant wrote an uncomplimentary article about Plaintiff’s company, stating that the rental equipment “was old, shoddy, and dangerous.” In response, Plaintiff filed a diversity action in federal court against Defendant alleging libel and seeking $300,000 in damages and reasonable attorney’s fees. Defendant failed to appear. Plaintiff submitted an affidavit showing Defendant’s failure and the clerk entered a default.

Can the clerk also enter the default judgment?

Answer 45

No, only the judge can enter the judgment and must make an independent determination of damages.

Under the federal rules, only the court can enter a default judgment if plaintiff’s claim is not “for a sum certain or a sum that can be made certain by computation.” FRCP 55(b)(1). When there is any doubt about the amount of damages, then only the court can enter the judgment. See FRCP 55(b)(2).

Although the complaint contains an ad damnum clause, the amount of damages here are not a “sum certain” in the sense contemplated by FRCP 55. See KPS & Assocs., Inc. v. Designs By FMC, Inc., 318 F.3d 1, 19 (1st Cir. 2003) (“in the Rule 55 context, a claim is not a sum certain unless there is no doubt as to the amount to which a claimant is entitled as a result of the defendant’s default”, stating that the court cannot award the amount of the ad damnum clause in the complaint when the proper amount is uncertain). The usual example of a dispute involving a sum certain, in which resort to “extrinsic proof” is not needed to determine damages, is an action to enforce a money judgment or a negotiable instrument. Id.

When the complaint does not involve a sum certain, the federal rule provides that the party seeking judgment must apply to the court for the entry of a default judgment, and the court may hold a hearing “to determine the amount of damages” or to “investigate any other matter.” FRCP 55(b)(2). It is not clear without further evidence whether the $300,000 that Plaintiff has alleged is the appropriate amount in damages for the libel; moreover, the amount of a reasonable attorney’s fee remains disputed.

Question 46

Plaintiff was driving a car and stopped at a red light. Defendant, a taxi driver, crashed into the rear end of Plaintiff’s car. Defendant was employed by Company, which owns Defendant’s taxi. Plaintiff filed a diversity action in federal court against Defendant and Company alleging negligence.

Paragraph 16 of the complaint alleged, “Defendant was acting in the course of his employment when the accident took place.” Before answering the complaint, Company reviewed three internal documents: (a) a scheduling book that showed Defendant was not officially assigned to work on the day of the accident; (b) a telephone log that indicated two of the Company’s other drivers called in sick on the day of the accident; and (c) a garage receipt showing that Defendant signed the taxi out of the garage on the day of the accident. Moreover, Company requested an interview with Defendant, but Defendant’s counsel refused to make him available for questions.

How should Company plead with regard to Paragraph 16?

Answer 46

Company should answer, “Company is without knowledge or information sufficient to form a belief as to the truth of the allegation.”

This appropriately applies the federal rules regarding a responsive pleading when a defendant lacks sufficient knowledge to admit or deny an allegation of the complaint. The federal rules address the responsibility of a defendant, as here, who seeks to answer the complaint, but does not have sufficient knowledge to know whether an allegation is true: “A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.” FRCP 8(b)(5).

Company knows that Defendant is its employee, but does not know for sure whether Defendant was acting in the scope of his employment when it checked the taxi out of the garage on the day of the accident. From the documents that Company has found, it cannot conclude that Defendant was acting in the course of employment. Defendant was not scheduled to work that day, and so Company is not obliged to admit the allegation, and can keep its relationship with Defendant in contention.

On the other hand, it is possible that Defendant was standing in for another driver who called in sick on the day of the accident, and so Company cannot conclude that Defendant was not driving in the scope of his employment, nor can Company deny this fact in good faith.

Since an answer that says Company is without knowledge or information to form a belief as to the truth of the allegations “has the effect of a denial,” FRCP 8(b)(5), Company does not lose anything by not denying the allegation. Moreover, this answer satisfies the obligation of Company and Company’s attorney’s to conduct a reasonable investigation before filing the responsive pleading. Company’s position is “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.” FRCP 11.

Question 47

Defendant, a technology company, hired Plaintiff, a technology specialist, as a part-time employee on an at-will basis. The employment contract provided that Defendant would reimburse Plaintiff for all “reasonable travel expenses in connection with work-related assignments.”

After sending Plaintiff on an important assignment to Hong Kong, Defendant refused to reimburse her travel and hotel expenses, and then fired her without explanation. Two years later, Plaintiff filed a diversity action in federal court alleging breach of contract. Eight months after service of the summons and complaint and six months after service of the answer, Plaintiff was granted leave to amend the complaint to add a claim of tortious interference with contractual relations, alleging that Defendant’s actions prevented her from acquiring employment with other companies. Defendant moves to dismiss the amended claim as time-barred under the applicable state statute of limitations.

What is Defendant’s best argument in support of the motion to dismiss?

Answer 47

The tort claim arises out of a different pattern of conduct than the original claim.

This argument recognizes that an untimely amended claim will “relate back” to the date of the original pleading only if it is factually related to the original claim—so that it does not, in effect, present a new and independent action.

The federal rule thus treats an amended claim as if it were filed on the date of the original pleading if it “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out … in the original pleading.” FRCP 15(c). Determining whether the amended and original claim are transactionally related often involves an inquiry into whether the claims share and are united by a “common core of operative facts.” Mayle v. Felix, 545 U.S. 644, 646 (2005).

A pertinent question, therefore, is whether the breach-of-contract claim alleged in the original complaint—relating to unpaid reimbursable expenses—put Defendant on notice that it might be tortiously liable for Plaintiff’s inability to obtain subsequent employment.

Arguably, the amended tort claim depends on “new and distinct conduct, transactions, or occurrences not found in the original complaint,” but the question is a close one. McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 864 (5th Cir. 1993) (original claim alleging violation of the federal Rehabilitation Act did not put defendant on notice of amended claim alleging due process violation).

Question 48

*Plaintiff owns a company that manufactures edible decorations used by commercial bakers for holiday cakes. Defendant owns a company that distributes food coloring. Plaintiff enters into a two-year contract with Defendant for the purchase of red and blue food coloring, both of which are essential for cakes baked for the Fourth of July. Defendant is late shipping the food coloring, and as a result Plaintiff loses out on a number of important contracts. Three years later, Plaintiff sues Defendant in federal court for breach of contract. After the requisite jurisdictional allegations, including that the court may exercise diversity jurisdiction, the complaint avers: “Defendant entered into a contract with Plaintiff and Defendant failed to deliver the goods on time.” Defendant enters a general denial.

Five months after filing its answer, Defendant moves to amend its answer by raising the statute of limitations as an affirmative defense. May the court grant the motion?

Answer 48

Yes, in the court’s discretion and if justice so requires

The standard that governs amendment under the federal rules when a responsive pleading omits an affirmative defense. Under the liberal amendment procedure of the federal rules, a party may amend once as a matter of right within 21 days of serving a pleading, or, if the pleading is one that requires a response, once within 21 days “after service of either a responsive pleading or a motion under Rule 12(b), (e), or (f), whichever is earlier.” FRCP 15(a)(1)(A) & (B).

Here, however, Defendant cannot file its proposed amendment as a matter of right, and so must seek leave to do so. FRCP 15(a)(2). The motion is directed to the court’s discretion, and the rule recites that “[t]he court should freely give leave when justice so requires.” Id.

In exercising its discretion the district court will be guided by a number of factors. These include a showing of bad faith on the part of the movant, undue delay, the substantive futility of the proposed amendment, or the movant’s continued failure to cure deficiencies in the pleading after previously permitted amendments have been filed. These factors do not appear to be present in the problem. This analysis also does not trigger the relation-back doctrine which governs an amendment to add a substantive claim, not the statute of limitations defense.

Question 49

BigTech, Inc. sued one of its former software developers in federal district court for copyright infringement and for violating a noncompete agreement. The court took federal question jurisdiction over BigTech’s federal copyright claim and took supplemental jurisdiction over BigTech’s noncompete claim, which is governed by state statutory law. Eight months after the lawsuit was filed, the legislature in the state where the case arose and was filed passed a law making noncompete agreements illegal. The law was retroactive, applying to noncompetes signed even before the law’s passage. After the law was passed, BigTech argued the noncompete claim’s merits in its written response to the former employee’s summary judgment motion. Assume the law’s retroactivity does not pose any constitutional problems. Which of the following is true about Rule 11’s application to BigTech’s summary judgment response

Answer 49

BigTech violated Rule 11(b)(2)’s requirement that legal contentions be warranted by existing law or by a non-frivolous argument for changing the law.

The state legislature’s retroactive law invalidated BigTech’s noncompete agreement, so the claim is no longer warranted by existing law. There is no wiggle room for a non-frivolous argument against the law, as there might be with precedent that is non-binding or that leaves room for interpretation. See Rule 11(b)(2). Because Rule 11 applies to “written motion[s] or other paper[s]” and to “later advocating” matters presented in the pleadings, it applies to BigTech’s continued pursuit of the noncompete claim in its summary judgment response. See Rule 11(b).

Question 50

*The plaintiff sued a car manufacturer, a tire manufacturer, and a tire valve manufacturer alleging that the three defendants’ products were defectively manufactured, causing a car accident that resulted in severe injuries to the plaintiff. After the defendants removed the case to federal court, the tire valve manufacturer filed an answer denying that it manufactured the tire valve involved in the accident. But a reasonable investigation of the valve, as preserved after the accident, would have revealed unique identifying marks showing that the valve was made by this defendant. In response to the plaintiff’s timely and proper Rule 11 motion, the court determines that the tire valve manufacturer’s denial violated Rule 11.

Which of the following sanctions would exceed the court’s power under Rule 11?

Answer 50

Ordering the tire valve defendant to pay costs and attorneys’ fees in the amount that the plaintiff has spent on the litigation so far

This clearly exceeds the court’s authority to issue a sanction “limited to what suffices to deter repetition of the conduct.” Rule 11(c)(4). Attorneys’ fees are a permitted sanction, but only in an amount “directly resulting from the violation.” Rule 11(c)(4). The sanction described in C goes well beyond reimbursing plaintiff for fees incurred in having to deal with the violation, which is the tire valve manufacturer’s inaccurate denial. It extends to the fees plaintiff has incurred in suing all three defendants for every piece of attorney work along the way.

Question 51

In a civil action in federal court, a plaintiff properly amended his complaint as a matter of course. The amended complaint added new claims against existing defendants.

Which factors must be considered in determining whether the new claims in the amended complaint relate back to the original filing date?

Answer 51

Whether the new claims are based on the same core facts contemplated in the original pleading; or whether the amendment is permitted under the law that provides the applicable statute of limitations.

Question 52

A shopper tripped and fell over a broken curb in a shopping center parking lot. A large sign in the parking lot identified a limited liability company named Avenue, LLC (the LLC) that operated and maintained the lot. A large construction corporation named Avenue Corporation (the corporation) wholly owned the LLC and had the same business address, principals, managers, and lawyers. The shopper mistakenly sued the corporation just one day before the statute of limitations on both the corporation and the LLC. The LLC realized immediately that the shopper had made a mistake. A week later, the shopper amended her complaint. The amended complaint changed the name of the defendant to Avenue, LLC. The applicable statute that defines the statute of limitations would allow the amendment. Nevertheless, the LLC opposed the amendment and argued that the claims against it should not relate back to the original filing date.

What is the most likely outcome?

Answer 52

The court will allow the amendment to relate back to the original filing date, because the LLC received notice of the lawsuit, would not be hindered in defending itself, and knew or had reason to know that it would have been sued initially, but for the mistake in identifying the corporation as the defendant.

Question 53

A plaintiff’s estate sued a financial management company for negligence in federal district court in State A. The estate’s claim sought damages for an accident at the company’s offices that had caused the plaintiff’s death. Three weeks after filing the complaint, the plaintiff’s estate realized it had inadvertently omitted claims for conversion and fraud that arose out of the company’s long-term mismanagement of the plaintiff’s accounts. The limitations period for both claims had expired a week after the original complaint was filed.

Where should the lawyer for the plaintiff’s estate look next to determine whether an amended complaint adding the conversion and fraud claims will relate back to the date of the original complaint?

Answer 53

The applicable limitations periods for the conversion and fraud claims. An amended pleading that adds new claims against a litigant who is already a party to the action will relate back to the date of the original pleading if: (1) the applicable limitations periods for the added claims permit relation back, or (2) the added claims arise out of the same conduct, transaction, or occurrence that was set out (or attempted to be set out) in the original pleading. Fed. R. Civ. P. 15(c)(1)(A), (B).

Plaintiff’s estate wants to add two claims against the financial management company, which is already a defendant in the lawsuit. The events giving rise to the new conversion and fraud claims are separate than those that gave rise to the negligence claim. The negligence claim arose out of an accident at the financial management company’s offices. In contrast, the conversion and fraud claims arose over years of fund mismanagement. Because the added claims do not arise out of the same conduct, transaction, or occurrence as those set out in the original complaint, they will only relate back if the applicable limitations period for fraud and conversion permits relation back.

Question 54

A motorcyclist was involved in an accident with a truck driver and a minivan driver. The motorcyclist suspected that the truck driver would be able to pay a greater sum of damages than the minivan driver. Therefore, the motorcyclist chose to sue only the truck driver, and not the minivan driver, for negligence in federal district court. The case received extensive local media coverage, and the minivan driver was aware that the lawsuit was ongoing. The truck driver’s discovery responses, served three months after the complaint was filed, indicated that he was insolvent and would not be able to pay even minimal compensatory damages. The motorcyclist sought to file an amended complaint changing the defendant from the truck driver to the minivan driver. The limitations period had since expired on the truck driver’s claim, but the applicable state statute permitted relation back.

Is an amended complaint adding the minivan driver likely to relate back to the filing date of the original complaint?

Answer 54

No, because the motorcyclist did not make a mistake about the minivan driver’s identity in omitting her from the original complaint.

Question 55

After two business partners had a falling out, the senior partner sued the junior partner in federal district court. The complaint alleged that the junior partner had breached the partnership agreement by failing to meet his required targets for new-business generation. The litigation grew both protracted and heated. After losing a particularly hard-fought battle during discovery, the senior partner asked his lawyer about adding a new claim for conversion against the junior partner. The new conversion claim would be based on the junior partner’s habit of falsifying records to bill personal expenses back to the partnership by claiming they were business expenses. The applicable limitations period on the conversion claim had expired one month after the original complaint was filed. The state law defining the limitations period did not permit relation back of amendments.

Will an amended complaint adding the conversion claim relate back to the date of the original complaint?

Answer 55

No, because the new claim is based on different facts than the original complaint.

An amended pleading that adds new claims against a litigant who is already a party to the action will relate back to the date of the original pleading if: (1) the applicable limitations periods for the added claims permit relation back, or (2) the added claims arise out of the same conduct, transaction, or occurrence that was set out (or attempted to be set out) in the original pleading. Fed. R. Civ. P. 15(c)(1)(A), (B).

Here, the applicable limitations period for the added conversion claim does not permit relation back. Therefore, the only remaining way in which the amendment might relate back is if the added claim is based upon the same conduct, transaction, or occurrence as that set out (or attempted to be set out) in the original complaint. The original complaint alleged that the junior partner breached the partnership agreement by failing to bring in sufficient new business. The added conversion claim challenges an entirely separate set of conduct that the junior partner allegedly engaged in—namely, fraudulently submitting personal expenses as business expenses

Question 56

A plaintiff sued a defendant in federal district court for negligence. The plaintiff’s complaint sought compensatory damages of $125,000. The defendant’s answer specifically denied each of the individual allegations pertaining to the negligence claim, including that the defendant had breached a duty owed to the plaintiff. However, the defendant omitted from its answer any denials of the amount of damages to which the plaintiff was entitled.

If a fact finder ultimately concludes that the defendant was negligent, must it award the plaintiff $125,000 in damages?

Answer 56

No, because a failure to deny the amount of damages is not an admission.

In general, if a party fails to deny an allegation, it is deemed admitted. However, this general rule does not apply to allegations pertaining to the amount of damages. A party’s failure to deny the amount of damages is not an admission. Fed. R. Civ. P. 8(b)(6)

Question 57

A plaintiff sued a defendant in federal district court for breach of contract. Several numbered paragraphs in the plaintiff’s complaint summarized the contents of the parties’ contract, including that the defendant was obligated to provide 1,200 square feet of floor tiles, each with a wear layer of at least 30 mm. The defendant attached a copy of the signed contract to his answer. The answer itself stated that the plaintiff’s allegations regarding the contract were inaccurate. The answer explained that the contract’s terms were clear and spoke for themselves, and referred the court to the attached contract.

Did the defendant’s answer effectively deny the plaintiff’s allegations regarding the contents of the contract?

Answer 57

No, because the answer forces the court and the plaintiff to sift through the contract to understand what the defendant is denying.

In general, a defendant has three options in addressing a plaintiff’s allegations in an answer: (1) admit, (2) deny, or (3) state that the defendant lacks information sufficient to form a belief as to the truth or falsity of an allegation. Fed. R. Civ. P. 8(b). To be effective, a denial must fairly respond to the substance of the allegation to which it relates. Fed. R. Civ. P. 8(b)(2). An answer should enable the court and the plaintiff to understand what the defendant disputes and should not force the plaintiff or the court to sift through extrinsic documents to figure out what exactly is being denied.

Question 58

A plaintiff sued two corporate defendants in federal district court for breach of contract and unfair competition under state law. The defendants all answered the complaint without first making a motion under Rule 12. Later in discovery, due to an error in record-keeping, one of the defendants discovered that the parties were not completely diverse and brought this discovery to the district court’s attention. The district court ordered briefing and argument on whether the court had subject-matter jurisdiction. None of the defendants had earlier argued that the court lacked subject-matter jurisdiction.

May the defendants still argue that the court lacks subject-matter jurisdiction?

Answer 58

Yes, because a party may argue that the court lacks subject-matter jurisdiction at any time.

Question 59

A plaintiff filed and served a complaint for copyright infringement One week later, the defendant filed a Rule 12 motion to dismiss for failure to state a claim. The court set a hearing on the defendant’s motion to dismiss for one month later.

In this situation, how should defendant calculate its deadline to file an answer to the complaint?

Answer 59

14 days after the court rules on the defendant’s Rule 12 motion.

If a defendant chooses to present defenses via a Rule 12 motion instead of filing an answer, then the defendant’s time to answer the complaint is postponed until 14 days after the court disposes of the motion. Fed. R. Civ. P. 12(a)(4)(A).

Question 60

A plaintiff sued an individual defendant in federal district court in State A. The plaintiff planned to arrange for the defendant to be served personally. The defendant was a citizen of State B. A pre-complaint investigation revealed that the defendant also owned a vacation home in State C and was spending time there when the plaintiff filed her complaint. The pre-complaint investigation also revealed that the defendant planned to remain in State C for approximately six months.

Which state’s or states’ laws should the plaintiff’s lawyer research to learn the applicable rules for serving the defendant?

Answer 60

Only States A and C

In determining which state’s rules are a source of applicable laws for service, a plaintiff may choose either: (1) the state within which the complaint is filed or (2) the state within which service is actually made. Fed. R. Civ. P. 4(e)(1). Here, the plaintiff filed the complaint in State A, so the law of state A is a source of applicable rules for serving the defendant. The plaintiff plans to arrange to have the defendant served personally, so service will occur in the state where the defendant is present, namely, State C. Therefore, the plaintiff’s lawyer should research the laws of State A (where the complaint is filed) and State C (where service will actually be made).

Question 61

On April 2, a plaintiff filed a patent infringement action in federal court against defendant, a foreign licensee of the patent. On April 15, the plaintiff sent a package to the defendant’s residence in France. The package contained an informal notice of the lawsuit, a copy of the complaint, and a request for the defendant to waive service. The defendant agreed to waive service of process and so notified the plaintiff on April 25.

How long does the defendant have to respond to the complaint?

Answer 61

Ninety days from the date that the plaintiff sent the waiver request.

Rule 4(d) of the Federal Rules of Civil Procedure grants a defendant who voluntarily waives service extra time to respond to the complaint. Usually, a defendant has 21 days to respond after being served; however, if a defendant waives service, the defendant may respond to the summons and complaint within 60 days from the time the waiver request was sent, or within 90 days from the time the waiver request was sent if the defendant is in a foreign country. See FRCP 4(d)(4). Here, the defendant voluntarily waived service and is in a foreign country (France). Accordingly, the defendant has 90 days from the time the waiver request was sent to respond to the complaint.

Question 62

A plaintiff brought an action in federal court against a corporation. The plaintiff’s attorney delivered a copy of the summons and complaint to the Chief Financial Officer (CFO) of the corporation at a corporate office in the state where the federal court is located. However, the attorney failed to file proof of service with the court.

Can the corporation successfully plead insufficiency of service of process?

Answer 62

No, because the corporation was properly served

Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure states that a corporate defendant may be properly served “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent” of the corporation. Here, the plaintiff’s attorney followed Rule 4(h)(1)(B) by serving the corporation by delivering service to the CFO, who is an officer of the corporation.

Question 63

A plaintiff sued a defendant, an individual located in the United States, in federal district court. After filing the complaint, the plaintiff’s lawyer mailed the defendant a package containing, among other items, the complaint and a request that the defendant agree to waive service within 30 days. After 40 days had passed with no word from the defendant, the plaintiff actually served the defendant. Immediately after the visit from the process server, the defendant’s lawyer called the plaintiff’s lawyer, saying that the defendant now agreed to waive service.

Does the defendant’s waiver give the defendant additional time to respond to the plaintiff’s complaint?

Answer 63

No, because the plaintiff had already served the defendant before the defendant agreed to waive service.

A defendant who timely waives service is entitled to additional time to respond to the plaintiff’s complaint. A defendant’s waiver is timely if the defendant returns a waiver within the reasonable time specified in the plaintiff’s request and before the defendant is formally served with process.

Here, the defendant did not respond within the reasonable time frame set forth in the plaintiff’s request, and the defendant was actually served before any agreement to waive service was communicated to the plaintiff. Therefore, the defendant did not timely agree to waive service and does not receive additional time to respond to the plaintiff’s complaint

Question 64

A plaintiff sued a defendant in federal district court for breach of contract. The plaintiff attached a verified copy of the contract, signed by both parties, to her complaint. The contract contained a liquidated damages clause that stated that, upon a finding that either party had breached the contract, the parties agreed that the amount of damages would be $125,000. The plaintiff sought this same amount of damages in the complaint. While the plaintiff provided the court with proof of service of the complaint, the defendant failed to answer or otherwise defend against the action. Nor did the defendant appear in the case. The clerk entered the defendant’s default.

To whom may the plaintiff proceed to obtain a default judgment?

Answer 64

The plaintiff may request a default judgment from the clerk because the plaintiff is seeking a sum certain.

Question 65

On August 30, a plaintiff filed a trademark infringement action in federal court against a foreign defendant. The defendant was properly served with the complaint on August 31. As of October 1, the defendant has not filed an answer to the plaintiff’s complaint.

How should the plaintiff proceed in order to recover from the defendant?

Answer 65

The plaintiff should first seek to have the clerk enter the defendant’s default on the docket, and then request a default judgment from the judge.

Rule 55 of the Federal Rules of Civil Procedure (FRCP) sets forth the two steps necessary for defaulting an adversary in federal court. First, a party must request an entry of default on the docket from the clerk of the court by providing documentation to show that its adversary has defaulted. Second, the moving party must seek the court’s entry of judgment against its adversary based on the default. See FRCP 55(a)-(b).

Question 66

A plaintiff sued a defendant in federal district court for patent infringement. The plaintiff’s complaint sought damages of $500,000, which represented a reasonable royalty of $2 on each of 250,000 allegedly infringing products sold. A reasonable royalty is one of several methods for calculating damages in a patent-infringement claim. The defendant filed an appearance in the case but did not respond to the plaintiff’s complaint with an answer or motion, despite several extensions from the district court. With the proper documentation provided by the plaintiff, the clerk entered the defendant’s default.

What is the next step in the default-judgment process?

Answer 66

The plaintiff must apply to the court for a default judgment.

In general, a default judgment in federal district court involves two steps: (1) the clerk’s entry of default for a party who has failed to plead or otherwise defend against the action, and (2) the entry of default judgment.

The second step of the default-judgment process may be carried out by the clerk or by the court, depending on what relief the party requesting a default judgment is seeking. If the party requesting default judgment seeks a sum certain, then the plaintiff may request a default judgment from the clerk. Fed. R. Civ. P. 55(b)(1). A claim is for a sum certain if there is no factual doubt as to the amount to which the plaintiff is entitled to recover upon the defendant’s default.

In contrast, if the party requesting default judgment is seeking an amount that may be disputed, then the court, not the clerk, may enter default judgment, typically after receiving argument and evidence on the amount of damages. Fed. R. Civ. P. 55(b)(2).

Here, the plaintiff is seeking reasonable royalty damages of $500,000. These damages do not represent a sum certain. There are a variety of ways to calculate damages in a patent-infringement case. Even if the defendant agreed that a reasonable royalty was an appropriate method for calculating damages, the defendant might still dispute the amount of the royalty that the plaintiff calculated in its complaint as well as the number of infringing products to which the royalty applied. Because the plaintiff is not seeking a sum certain, the next step in the process is to apply for a default judgment from the court

Question 67

In a diversity action in federal court, a plaintiff sued a defendant for personal injury, alleging damages of “up to $1 million” for the defendant’s negligent driving. The defendant filed an answer denying liability and disputing the plaintiff’s damages. The case was then set for trial. On the date of the trial, the defendant failed to appear. The clerk of the court docketed the defendant’s default, and the plaintiff requested that the clerk enter a default judgment for $1 million against the defendant. The plaintiff’s request was accompanied by an affidavit explaining the plaintiff’s calculation of $1 million based on an itemized list of hospital bills and rehabilitation expenses related to the plaintiff’s injuries.

Would it be proper for the clerk to enter a default judgment of $1 million against the defendant?

Answer 67

No, because the plaintiff’s requested damages cannot be considered a sum certain.

Question 68

In a diversity action in federal court, a plaintiff sought $150,000 in damages for the defendant’s failure to pay on a promissory note that the defendant had given to the plaintiff in exchange for a loan. The promissory note was attached to the complaint. The defendant failed to enter an appearance, plead, or otherwise defend against the plaintiff’s complaint. The court clerk entered a default against the defendant on the court docket. The plaintiff then filed an affidavit establishing the plaintiff’s calculation of the $150,000 amount owed pursuant to the terms on the face of the promissory note. Based on this affidavit, the plaintiff requested that the clerk enter judgment for $150,000 against the defendant.

Would it be proper for the clerk of the court to enter judgment against the defendant for $150,000?

Answer 68

Yes, because the plaintiff has established that the defendant has breached the contract and that the amount due is a sum that can be made certain by computation.

Question 69

A plaintiff sued a defendant for copyright infringement in federal district court. After the close of the pleadings, the parties engaged in initial written discovery. The defendant then moved to dismiss for failure to state a claim.

Which of the following most accurately sets forth the materials the court may consider in deciding the defendant’s motion to dismiss?

Answer 69

The court may only consider the allegations in the plaintiff’s complaint and in the defendant’s answer.

A defendant may argue that a plaintiff has failed to state a claim in (1) a pre-answer motion under Rule 12, (2) the defendant’s answer, (3) a motion for judgment on the pleadings at any time before trial, or (4) at trial. See Fed. R. Civ. P. 12(h)(2). If a defendant moves for a judgment on the pleadings, then the court may consider the content of all of the pleadings in deciding whether the plaintiff has adequately stated a claim for relief.

However, a court may not consider matters outside the pleadings. If a court considers matters outside the pleadings, it must convert the motion to one for summary judgment and give the parties an opportunity to present all material pertinent to the motion. Fed. R. Civ. P. 12(d).

Question 70

A customer shopping at a retail store slipped and fell. She thereafter brought a diversity action against the store in federal court, alleging negligence. The complaint did not provide any factual details about the incident or the alleged cause of the incident. Instead, the complaint merely recited the laws and regulations that the customer believed the store had violated. The store’s owner filed a motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure.

Is the court likely to grant the store’s motion?

Answer 70

Yes, because the complaint fails to state a claim upon which relief can be granted.

Question 71

A plaintiff sued a defendant in federal district court after the plaintiff was injured in an automobile accident. The plaintiff alleged in her complaint that the defendant acted negligently while driving. The plaintiff also alleged that at the time of the accident, the defendant’s car was traveling 45 miles per hour in an area with a speed limit of 20 miles per hour. The defendant moved to dismiss the plaintiff’s complaint for failure to state a claim.

Which of the plaintiff’s allegations, if any, must the court accept as true in deciding the defendant’s motion to dismiss?

Answer 71

The court must accept as true the plaintiff’s allegations regarding the speed of the defendant’s car and the speed limit. In deciding a motion to dismiss for failure to state a claim, a court must accept a party’s factual allegations as true. A court is not required to accept as true conclusory legal allegations that simply label the elements of a claim.

Question 72

A plaintiff sued a defendant law firm for malpractice in a diversity action in federal court. The plaintiff alleged that an attorney who had worked as an independent contractor of the firm had mishandled a legal matter for the plaintiff. In her complaint, the plaintiff alleged that the firm was liable, even though the attorney was an independent contractor, because the plaintiff had reasonably believed the attorney was an employee of the firm based on the attorney’s “apparent authority.” The courts of the state providing the applicable law have not recognized this theory of “apparent authority,” although other jurisdictions have adopted it. The defendant moved to dismiss the plaintiff’s complaint for failure to state a claim upon which relief can be granted.

Is the court likely to grant the defendant’s motion to dismiss?

Answer 72

Yes, because the applicable state law does not recognize the “apparent authority” theory.

A complaint fails to state a claim if it fails to allege facts that constitute a cause of action under applicable law. See Fed. R. Civ. P. 8(a), 12(b). Here, the facts provide that applicable law does not recognize the “apparent authority” theory. Accordingly, the court will reject the plaintiff’s theory as a recoverable claim under applicable law.

Question 73

A plaintiff sued a defendant in federal district court. Two months after pleadings had closed, the plaintiff wanted to add a claim under state law. The state statute that created the plaintiff’s claim required that any cause of action be filed within two years of a claimant’s injury. The plaintiff had filed her original complaint in the district court 23 months after her injury. The state statute did not permit relation back of amended pleadings. The plaintiff moved for leave to amend to add the claim to her complaint.

Which of the following best explains the district court’s denial of the plaintiff’s motion for leave to amend her complaint?

Answer 73

The proposed amendment is futile.

Rule 15 is strongly biased in favor of granting motions for leave to amend. See Fed. R. Civ. P. 15(a)(2). The U.S. Supreme Court has listed several factors as justifying denying a motion for leave to amend, including: undue delay, the movant’s bad faith or dilatory motive, repeated failure to cure deficiencies with amendments previously allowed, undue prejudice to the opposing party, and the amendment’s futility.

A proposed amendment is futile if the amendment, even if allowed, would not correct the deficiencies in the movant’s pleading. Similarly, a proposed amendment is also futile if it seeks to add a claim that would be frivolous or could not otherwise withstand a motion to dismiss. .

Here, the limitations period for the state-law claim that the plaintiff seeks to add via amendment has expired, and the state statute does not permit relation back of amendments. For this reason, the state-law claim the plaintiff seeks to add via amendment would not survive a motion to dismiss. Therefore, the district court’s decision to deny the plaintiff’s motion for leave to amend is best explained by the futility of adding the claim.

Question 74

A plaintiff sued a defendant in federal district court. The defendant served an answer 15 days after being served with the complaint. The defendant’s answer denied all allegations in the plaintiff’s complaint but did not assert a counterclaim or any other claim for relief. The district court did not order a reply. Ten days after filing and serving the answer, the defendant realized his pleading contained several errors. The defendant wanted to file an amended answer that corrected the mistakes he had noticed.

How long, if at all, does the defendant have to amend his counterclaim without consent from the plaintiff or leave from the district court?

Answer 74

11 days

A party may amend its pleading once as of right (without leave from the court or its opponent) within 21 days of serving the pleading or, if the pleading is one to which a responsive pleading is required, the earlier of either (1) 21 days after service of the response, or (2) 21 days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). To determine whether a pleading is one to which a response is required under Rule 15(a), one looks to the text of Rule 7(a); if Rule 7(a) lists a response to the pleading as permitted, then the pleading is one to which a response is required under Rule 15(a). Advisory Committee Notes, 2009 Amendments to Fed. R. Civ. P. 15. Rule 7(a) permits answers to counterclaims and, if ordered by the court, replies to answers. Fed. R. Civ. P. 7(a)(3), (7). Therefore, an answer is a pleading to which a response is required if the answer contains a counterclaim or the court orders a reply. Fed. R. Civ. P. 7(a)(7).

Here, the defendant’s answer denied all allegations in the plaintiff’s complaint. The answer did not include a counterclaim or other claim for affirmative relief, and the district court did not order a reply. Therefore, the defendant’s answer is not a pleading to which a response is required. Because a response to the answer is not required, the defendant has 21 days from serving the answer to amend it once as of right, without consent from the plaintiff or leave from the district court. Ten days have passed since the defendant served the answer, so the defendant has 11 days

Question 75

A plaintiff sued a defendant in federal district court. Ten days after being served with the complaint, the defendant filed a motion for a more definite statement under Rule 12(e). After taking two weeks to review the defendant’s motion, the plaintiff agreed that aspects of her complaint should be amended to provide more detail.

Does the plaintiff require consent from the defendant or leave from the court to amend her complaint?

Answer 75

No, because less than 21 days have passed since the defendant served a motion for a more definite statement.

A party may amend its pleading once as of right (without leave from the court or its opponent) within 21 days of serving the pleading or, if the pleading is one to which a responsive pleading is required, the earlier of either (1) 21 days after service of the response, or (2) 21 days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). To determine whether a pleading is one to which a response is required under Rule 15(a), one looks to the text of Rule 7(a); if Rule 7(a) lists a response to the pleading as permitted, then the pleading is one to which a response is required under Rule 15(a). Advisory Committee Notes, 2009 Amendments to Fed. R. Civ. P. 15. Because Rule 7(a) permits answers to complaints, a complaint is a pleading to which a responsive pleading is required. Fed. R. Civ. P. 7(a)(2).

Here, the plaintiff’s complaint is a pleading to which a response is required. The defendant has filed a motion for a more definite statement under Rule 12(e), which, while not technically a pleading, starts the time frame within which the plaintiff has to amend her complaint once as of right. Because less than 21 days have passed since the defendant filed the Rule 12(e) motion for a more definite statement, the plaintiff may amend her complaint as of right and does not need consent from the defendant or leave from the court. See Fed. R. Civ. P. 15(a)(2).

Question 76

A plaintiff brought a diversity action against a defendant in federal court, seeking to recover for injuries caused when the defendant’s employee crashed a delivery truck into the plaintiff’s car. The plaintiff claimed that the employee was acting in the scope of his employment at the time of the accident. The defendant’s counsel reviewed the employee’s time sheets, which indicated that the employee was working at the time of the accident. The defendant’s counsel also interviewed the employee’s manager, who confirmed that the employee was working at the time of the accident. The defendant therefore admitted in its answer to the complaint that its employee was acting in the scope of his employment at the time of the accident. The defendant included a counterclaim in its answer, asserting that the plaintiff’s negligence had instead caused the accident. The plaintiff replied, denying all allegations in the defendant’s counterclaim. One month after the plaintiff replied but three months prior to the completion of discovery, the defendant learned that the employee’s supervisor had allowed him to leave an hour before the accident and to drive the delivery truck to visit his sick father. Although the supervisor had known this all along, she had not reported this during her initial interview with the defendant’s counsel out of fear that she would be reprimanded. Upon learning this information, the defendant immediately moved for leave to amend its answer in order to deny that the employee had acted in the scope of his employment.

Is the court likely to grant the defendant’s motion to amend?

Answer 76

Yes, because discovery is not yet complete, and the plaintiff will still have time to prepare her strategy for trial.

Rule 15 of the Federal Rules of Civil Procedure (FRCP) provides that a party may amend its pleading “once as a matter of course” before trial within either: (1) 21 days after serving it, or (2) if the pleading sought to be amended is one that requires the opposing party’s response, then 21 days after the responsive pleading is served or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Here, because more than 21 days have passed since service of the plaintiff’s reply, the time for the defendant to amend its pleading once as a matter of course has expired. See FRCP 15(a)(1)(B).

Question 77

A plaintiff sued a defendant for trademark infringement in federal court. The defendant answered the complaint, denying all allegations and asserting a counterclaim against the plaintiff. Four days later, the plaintiff moved to dismiss the counterclaim for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Twenty days after the plaintiff filed his motion to dismiss and while the motion was still pending, the defendant amended his counterclaim without leave of court.

Is the defendant’s amendment proper under the Federal Rules of Civil Procedure?

Answer 77

Yes, because it was filed within 21 days of the plaintiff’s motion to dismiss.

Question 78

A defendant served numerous document requests on a plaintiff during litigation in federal district court. While permitted by the Federal Rules of Civil Procedure, the requests sought a substantial amount of material that would take hundreds of hours to compile. The defendant’s team of lawyers had deliberately crafted the requests to burden the plaintiff’s lawyer, who worked as a solo practitioner. The requests were a part of the defense’s overall strategy to make the litigation as burdensome as possible for the plaintiff and attempt to overwhelm the plaintiff’s lawyer. The plaintiff served a motion for Rule 11 sanctions on the defendant and asked the defendant to withdraw the requests. When the defendant refused to do so, the plaintiff filed its motion for sanctions with the district court.

Is the district court likely to sanction the defendant under Rule 11?

Answer 78

No, because discovery requests are not governed by Rule 11.

Question 79

During discovery in a civil action, the plaintiff obtained information that proved that the factual allegations that he had made in his complaint were false. After the completion of discovery, and despite the information obtained during discovery, the plaintiff presented his factual allegations in an oral argument before the court at a hearing on a motion for summary judgment by the defendant.

Did the plaintiff’s oral argument violate Rule 11 of the Federal Rules of Civil Procedure?

Answer 79

Yes, because if a claim is no longer warranted, the plaintiff should not continue to insist on that claim.

Rule 11 of the Federal Rules of Civil Procedure (FRCP) prevents parties from filing frivolous papers and claims with the court by requiring that parties file papers that: (1) are not filed for an “improper purpose”; (2) accurately represent the law and relevant authorities or set forth nonfrivolous arguments for changing the law; and (3) represent factual assertions that are objectively reasonable at the time of filing. See FRCP 11(b). Specifically, parties must represent that statements of fact “have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” See FRCP 11(b)(3). This rule permits a party to make necessary allegations to advance a claim even when the claim cannot be initially proven at the time of filing a pleading. However, according to the advisory committee notes: “if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty not to persist with that contention.” See FRCP 11(b)(3), advisory committee’s note.

Question 80

A plaintiff sued a defendant in federal district court for wrongful termination under state law. The plaintiff, who had worked for the defendant as an independent contractor, claimed that the defendant had terminated her after she was forced to take time off for jury duty. No case in the governing jurisdiction held that independent contractors could sue for wrongful termination. The state supreme court had last visited the issue over 50 years ago and had held that independent contractors could not sue for wrongful termination. The defendant served a motion for Rule 11 sanctions on the plaintiff for this reason. When the plaintiff refused to withdraw the wrongful termination claim, the defendant also moved to dismiss for failure to state a claim. In arguing that she had stated a claim, the plaintiff was able to cite to a single case from outside the governing jurisdiction that held that an independent contractor could sue for wrongful termination after jury duty required extensive time off of work. The plaintiff also was able to cite to several law journal articles that supported her argument that the law in the governing jurisdiction should change, particularly in light of corporations’ increased use of independent contractors in the last 25 years. The district court ultimately granted the defendant’s motion to dismiss, agreeing that the plaintiff could not state a claim for wrongful termination because the plaintiff was an independent contractor. The defendant then filed a motion for Rule 11 sanctions.

Is a court likely to sanction the plaintiff under Rule 11?

Answer 80

No, because the plaintiff made a nonfrivolous argument that the law should change.

Rule 11 requires that a party’s claims or defenses, as presented in any signed pleading, written motion, or other paper, be warranted by existing law, or by a nonfrivolous argument for the extension, modification, or reversal of existing law. Fed. R. Civ. P. 11(b)(2). In short, Rule 11 permits attorneys to argue that the law should be changed, so long as their arguments are not frivolous. A legal argument is frivolous if a reasonable attorney would recognize that the argument clearly has no chance of success, such as when it is patently contrary to controlling law. However, the mere fact that a legal argument is unsuccessful does not make it frivolous