Pg 16 Flashcards
What is a complaint?
The action begins by filing a complaint for the plaintiff to state his grievance. This involves sufficient factual matter that is accepted as true to state a claim for relief that is possible on its face.
What is facial possibility for a complaint?
Plaintiff pleads factual content that lets the court draw a reasonable inference that the defendant is liable for the misconduct that is alleged.
What is the point of a complaint?
It puts everyone on notice of what the issues are in the suit, it explains why the plaintiff is entitled to relief, and it demands that relief.
What is the standard that is required for a complaint?
It must nudge the claim across the line from conceivable to plausible
What are the basic requirements for a complaint?
- give basic notice to the other party – must establish PJ and SMJ – involves short and plain statements – signed – be done in good faith
What is required with regard to specificity for a complaint?
The P sets forth short and plain statements that indicate he is entitled to relief.
When would a complaint be dismissed for failure to state a claim?
Complaints are not dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.
What are the special pleading rules involved in a complaint that say that if you don’t plead them in the complaint, you are barred from proving them at trial?
- fraud or mistake – if a contract had conditions precedent – official documents or acts – special damages – Admiralty or maritime – claims by private investors under federal security laws
If fraud or mistake is involved in the case, what must you say about it in the complaint?
This must be plead with particularity because it raises issues of moral turpitude and puts a black mark on the defendant. These allegations are easily made but hard to disapprove, so there must be a higher level of pleading, which requires that an allegation of fraud or mistake be plead in the complaint otherwise it is barred from being proved at trial
If a contract had conditions precedent, what must the plaintiff say about that in the complaint to avoid being barred from proving it at trial?
The plaintiff must say that he has performed all of the conditions, but he doesn’t have to identify them. Then the burden shifts to the defendant to identify the conditions that he claims that the plaintiff did not comply with
If there is an official document or act, what is required to be said about that in the complaint?
The document must be legally issued or the act legally done
If special damages are plead in the complaint, what is required in order to avoid being barred from proving them at trial?
They must be specifically stated
If a case is Admiralty or Maritime, what is required that it be said in the complaint?
That detail must be in designated as such to avoid being barred from proving it at trial
What is involved in an FR 11 sanction?
Attorneys must sign their pleadings and motions and by doing this they ensure that the pleading or motion was not done improperly, or to harass, delay, increase litigation costs, etc.
The signature signifies that to the best of the attorney’s belief, the information is true and was made in good faith, based on the current law, and has evidentiary support. Therefore, if a pleading or motion is done improperly, the lawyer can be subject to sanctions which are disciplinary measures taken according to the judge’s discretion
Is it necessary that an attorney KNOW that the information in a pleading or complaint is true and made in good faith to avoid being sanctioned under FR 11?
No, he just needs good grounds to allege those things. But subjective good faith will not save an attorney from sanctions if he fails an objectively inadequate pleading because the reasonable attorney standard is applied. “Pure heart – empty head” defence is not enough
What is the 21 day safe harbour for FR 11?
If a party serves an FR 11 motion on the other party, they cannot file it with the court for 21 days. If the other party withdraws or corrects their pleading or motion within that time frame, then the FR 11 motion cannot be filed
What is required for monitoring of a complaint?
Once the paper is certified, it must be monitored to be sure it still meets the requirements day by day. If not, the attorney must withdraw it or change it.
Ie: if you know the plaintiff has a job at his dad’s store, but the complaint says he hasn’t gotten work, then you know that is false. If you sign the complaint, you can be sanctioned or disciplined under FR 11
Once an attorney certifies a motion or pleading by signing it, what is he saying?
That to the best of his knowledge, information, and belief, formed after an inquiry that was reasonable under the circumstances, the allegation is likely to have evidentiary support.
Ie: if the attorney only heard the plaintiff’s version, that is not reasonable, so the attorney would need to verify the information.
What are the things that must be included about the attorney on a complaint?
His signature, his address, email, phone number, and a certification that to the best of his knowledge/info/belief, inquiry was reasonable under the circumstances and not done for an improper purpose, all claims were warranted by law, the facts had evidentiary support, and denials are warranted on the evidence or believed to lack information
What is the point of discovery?
It is to figure out necessary facts, identify baseless claims, and narrow the issues
Who has the burden of pleading?
The party with the burden of production has the burden of pleading. Usually the plaintiff pleads issues that are essential to his case and he doesn’t need to plead the nonexistence of defense because the defendant has the burden of proof for that pleading defenses.
What are things that have heightened pleading standards?
Civil rights issues and security issues
What is involved in a response?
The D either demures [challenges the legal sufficiency of the declaration] or pleads. D responds to each assertion in the complaint
What are the options for how a defendant can respond to a complaint?
- move to dismiss for lack of SMG, PJ, or venue
– bring an affirmative defense
– admit or deny specific parts
– bring counter claims
What is assumed with regard to the plaintiff denying things in the answer?
It is assumed that anything in the answer is denied by the plaintiff.
When must an answer be served?
Unless it was specified otherwise, the defendant must serve an answer within 21 days after being served, or he timely waived service [90 days if defendant was outside of a judicial district and 60 days if inside]
What are pre-answer motions?
Things like motion to dismiss
What is the rule for pre-answer motions?
It’s not necessary to bring them, but if they are brought, all must be raised here or they are lost. You cannot wait and raise them all in the answer.
What is the rationale behind bringing a pre-answer motion?
It can give the defendant a tactical advantage because he can avoid answering the allegations in the complaint by bringing up a pre-answer motion if he wins. Can assert multiple objections here
With regard to a motion to dismiss, what are the two alternatives?
- answer
– objections in a preliminary motion to dismiss
When you make an objection in a preliminary motion to dismiss, what is essentially happening?
You don’t answer the complaint unless the motion is denied. If you win, you never have to answer.
Claims and defenses are stated in what structural way?
Numbered paragraphs with one rule per paragraph. There’s a caption that has the name of the court, the title of the action, the file number, the name of the parties, etc.
What are some things you can object you to a preliminary motion to dismiss?
– inadequacy of the summons – insufficient service of process – failure to state a claim – motion for judgement on the pleadings – motion for a more definite statement – motion to strike
