Pg 16

Question 1

What is a complaint?

Answer 1

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.

Question 2

What is facial possibility for a complaint?

Answer 2

Plaintiff pleads factual content that lets the court draw a reasonable inference that the defendant is liable for the misconduct that is alleged.

Question 3

What is the point of a complaint?

Answer 3

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.

Question 4

What is the standard that is required for a complaint?

Answer 4

It must nudge the claim across the line from conceivable to plausible

Question 5

What are the basic requirements for a complaint?

Answer 5

- give basic notice to the other party
– must establish PJ and SMJ
– involves short and plain statements
– signed
– be done in good faith

Question 6

What is required with regard to specificity for a complaint?

Answer 6

The P sets forth short and plain statements that indicate he is entitled to relief.

Question 7

When would a complaint be dismissed for failure to state a claim?

Answer 7

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.

Question 8

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?

Answer 8

- 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

Question 9

If fraud or mistake is involved in the case, what must you say about it in the complaint?

Answer 9

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

Question 10

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?

Answer 10

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

Question 11

If there is an official document or act, what is required to be said about that in the complaint?

Answer 11

The document must be legally issued or the act legally done

Question 12

If special damages are plead in the complaint, what is required in order to avoid being barred from proving them at trial?

Answer 12

They must be specifically stated

Question 13

If a case is Admiralty or Maritime, what is required that it be said in the complaint?

Answer 13

That detail must be in designated as such to avoid being barred from proving it at trial

Question 14

What is involved in an FR 11 sanction?

Answer 14

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

Question 15

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?

Answer 15

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

Question 16

What is the 21 day safe harbour for FR 11?

Answer 16

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

Question 17

What is required for monitoring of a complaint?

Answer 17

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

Question 18

Once an attorney certifies a motion or pleading by signing it, what is he saying?

Answer 18

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.

Question 19

What are the things that must be included about the attorney on a complaint?

Answer 19

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

Question 20

What is the point of discovery?

Answer 20

It is to figure out necessary facts, identify baseless claims, and narrow the issues

Question 21

Who has the burden of pleading?

Answer 21

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.

Question 22

What are things that have heightened pleading standards?

Answer 22

Civil rights issues and security issues

Question 23

What is involved in a response?

Answer 23

The D either demures [challenges the legal sufficiency of the declaration] or pleads. D responds to each assertion in the complaint

Question 24

What are the options for how a defendant can respond to a complaint?

Answer 24

• move to dismiss for lack of SMG, PJ, or venue
  – bring an affirmative defense
  – admit or deny specific parts
  – bring counter claims

Question 25

What is assumed with regard to the plaintiff denying things in the answer?

Answer 25

It is assumed that anything in the answer is denied by the plaintiff.

Question 26

When must an answer be served?

Answer 26

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]

Question 27

What are pre-answer motions?

Answer 27

Things like motion to dismiss

Question 28

What is the rule for pre-answer motions?

Answer 28

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.

Question 29

What is the rationale behind bringing a pre-answer motion?

Answer 29

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

Question 30

With regard to a motion to dismiss, what are the two alternatives?

Answer 30

• answer

– objections in a preliminary motion to dismiss

Question 31

When you make an objection in a preliminary motion to dismiss, what is essentially happening?

Answer 31

You don’t answer the complaint unless the motion is denied. If you win, you never have to answer.

Question 32

Claims and defenses are stated in what structural way?

Answer 32

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.

Question 33

What are some things you can object you to a preliminary motion to dismiss?

Answer 33

– 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