Pg 17

Question 1

What is a motion to dismiss for failure to state a claim a.k.a. FR 12 B6?

Answer 1

The suit is dismissed if it appears to a certainty that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. There must be more than a sheer possibility that the defendant acted unlawfully. Essentially the pleading of the claim does not have sufficient information

Elements: the complaint needs
– sufficient factual matter
– accepted as true
– to state a claim for relief that is plausible on its face [the factual content allows the court to draw a reasonable inference that the defendant is liable for the misconduct he is alleged of]

Question 2

What is a motion for judgement on the pleadings?

Answer 2

This attacks the substantive sufficiency of the opposing party’s pleading after the pleadings have finished.

Question 3

What kind of pre-answer motion occurs if matters are outside of the pleadings that have been presented?

Answer 3

This is a motion for summary judgement

Question 4

What is a motion for a more definite statement?

Answer 4

When the statement was so vague or ambiguous that the party couldn’t reasonably prepare a response to it. This must point out the defects and the details that are desired. If the court orders a more definite statement and it isn’t given within 14 days of the court order, the court can strike the pleading

Question 5

What is a motion to strike?

Answer 5

The court can strike insufficient defenses or redundant, immaterial, impertinent, or scandalous matter from the pleadings either sua sponte, by motion of a party before responding, or in a response within 21 days of being served. It must be obviously false and unrelated to the subject matter of the action

Question 6

What is the relation back doctrine with regard to amended answers?

Answer 6

This asks the court to accept the amendment and treat it as if it was included in the original answer.

Question 7

Are inconsistent allegations allowed in a complaint or answer?

Answer 7

Yes, if they were made in good faith

Question 8

What is required for motions in federal court?

Answer 8

There must be the signature of the litigant or attorney that he read the papers and that the motion was made in good faith

Question 9

When would a motion to dismiss be granted?

Answer 9

• if there is no legal redress for the injury [D just made a face at P]
  – if the plaintiff didn’t make an allegation on a necessary part of the case
  – if the complaint was so unclear that the defendant couldn’t frame a meaningful response to it.

Question 10

When must defenses be asserted?

Answer 10

In or before the pleading, or by motion

Question 11

What are different things that you can assert as defenses through a motion?

Answer 11

– lack of SMJ, PJ, venue
– insufficient process
– failure to state a claim for which relief can be granted
– failure to join a party

***All of these have to be made before the pleading m

Question 12

What are the two different kinds of defenses?

Answer 12

– affirmative defenses

– challenging the substantive merits of the complaint

Question 13

What is involved in affirmative defenses?

Answer 13

There are 18+ defenses that admit the allegations but challenge the plaintiff’s legislative right to bring the action by giving a reason that the relief isn’t available.

Question 14

When do affirmative defenses have to be raised?

Answer 14

At the time of answering, otherwise they are lost

Question 15

What is required for notice for an affirmative defense?

Answer 15

Notice must be given of the possible existence of a defense and the defendant’s intention to use it

Question 16

When a party responds to a pleading, what has to be done with regard to affirmative defenses?

Answer 16

The party must affirmatively state any avoidance or defence in the response

Question 17

What are some examples of affirmative defenses?

Answer 17

- accord and satisfaction
– arbitration or award
– assumption of the risk
– contributory negligence
– duress
– estoppel
- failure of consideration
- fraud
– illegality
– injury by fellow servant
– laches
– license
– payment
– release
– res judicata
– SOF
– SOL
– waiver

Question 18

What is the difference between affirmative and regulatory defenses?

Answer 18

• affirmative: involve something that the defendant must prove
  – regulatory: the plaintiff must prove this in his claim

Question 19

Who raises affirmative defences and who has to prove them?

Answer 19

These are raised by the defendant and he is the one that has to prove them

Question 20

How do you challenge the substantive merits of a complaint as a form of defense?

Answer 20

This is a motion to dismiss for failure to state a claim, and if it is upheld it will result in a dismissal. But the plaintiff usually gets one chance to amend his complaint to state a compensable claim before dismissal happens.

Question 21

If a judge grants “failure to state a claim on which relief can be granted“, what must the plaintiff do?

Answer 21

File a clearer complaint within a certain period. Once the clearer complaint is gotten, the defendant still has some defenses available

Question 22

If a mistake is made in the complaint like a party accidentally designated the defendant as a counter claim, what does the court do?

Answer 22

Treated as if it was correctly designated

Question 23

What are things that require immediate dismissal of a complaint?

Answer 23

No SMJ, no PJ, improper venue

Question 24

What is a waiver of defense?

Answer 24

If you omit certain defences from a motion, or you don’t make a motion, or you don’t include a motion in your responsive pleading, then you waive that defense.

Question 25

If you do not raise 12b defences in the first response to complaint, what happens to them?

Answer 25

They are waived forever.

Question 26

Can a motion be joined with any other motion?

Answer 26

Yes, but they all have to be done at the same time

Question 27

What is involved in an answer?

Answer 27

If a motion to dismiss has been denied, an answer must be filed where you either admit or deny the allegations. Affirmative defenses are plead here or else they are waived. The defendant must answer within 14 days of being notified that his motion to dismiss is denied. But he has 21 days from the date of service of the complaint to respond by other motion or by answering the complaint

Question 28

An answer must do what?

Answer 28

Either admit or deny the allegations

Question 29

If you fail to deny an allegation in an answer, what happens?

Answer 29

It is considered an admission

Question 30

What is the all-inclusive paragraph that usually goes into a denial as an answer to a complaint?

Answer 30

There’s usually an all inclusive paragraph that denies every element of the complaint unless otherwise admitted. This must be made in good faith and only when everything in the complaint can legitimately be denied