Pg 18

Question 1

Is it possible to raise objections at the time you make an affirmative defense?

Answer 1

Yes, even if those objections were omitted from an earlier pre-answer motion, as long as it wasn’t a 12b motion.

Question 2

If a defendant has a counter-claim against the plaintiff for something coming out of the same occurrence, what options does the plaintiff have for responding?

Answer 2

All of the same options for responding that the defendant had. He can present defenses in a pre-answer motion, or answer the counter-claim

Question 3

If a defendant files for removal, can he still file motions to dismiss?

Answer 3

Yes, because removal doesn’t waive the right to make objections. It is not a response to the complaint, it just moves the case from state to federal court

Question 4

Can pleadings be amended?

Answer 4

Yes

Question 5

What does it mean to make an amendment to a pleading?

Answer 5

You can alter or expand the controversy, cure a defect, add a claim, add a party, add a factual piece of information that you just discovered, change admissions to denials when the plaintiff didn’t rely on them, add an SOL defense since the plaintiff was on notice in an earlier memo, etc.

Question 6

What are the different situations that a pleading can be amended?

Answer 6

– as a right: happens automatically or on motion at pre-trial
– at trial: happens on motion

Question 7

Are amendments to pleadings freely granted?

Answer 7

Yes

Question 8

If you make an amendment after the SOL, what happens?

Answer 8

It is counted as tolling the clock at the time you filed the action, not when you made the amendment. Amended pleadings replace the original. This only applies to pleadings, and not to motions

Question 9

How are amendments to pleadings considered to be discretionary?

Answer 9

The District Court has the discretion to either grant or deny them and these are reviewable only for abuse

Question 10

What are the two different types of amendments?

Answer 10

• filed as a matter of course

– allowed by leave of court

Question 11

What is involved with an amendment that is filed as a matter of course?

Answer 11

All parties can amend ONCE as a matter of right without having to make a motion as long as it is done within 21 days of service. If the pleading requires a response, within 21 days after the answer is served.

You can make any changes in that time. To either add or drop a claim, change the allegations, file a completely revised complaint, etc. and because this is a matter of course, you have a right to do it and you don’t have to ask anyone.

I E: if you plead saying that a party deliberately ran a red light, then you find out that his brakes failed because they were not maintained, you can change the pleading and alleged negligent maintenance

Question 12

What is involved in the type of amendment that is allowed by leave of court or by written consent of the other party?

Answer 12

After the amendment period is finished, the party can still get the court’s permission or consent of the adverse party to amend the pleading.

The court freely gives leave when justice requires it and don’t try usually try to stop amendments just to punish a lawyer for his mistakes. It is also reasonable and common for the other attorney to consent to an amendment if it happens early. If it happens closer to trial there is a higher chance that it will prejudice the other party’s ability to prepare their case, but if the party can show that there won’t be any prejudice, it would likely be allowed

The court has discretion to do this based on things like: the party’s diligence in making the amendment, the number of prior amendments by the same party, what kind of prejudice will happen to the opposing party, bad faith, undue delay, etc.

Question 13

Why is making amendments at the beginning of the case before trial referred to as the “free fire zone“?

Answer 13

Because at that stage of the case, amendments won’t prejudice anyone. Anytime prior to the answer the plaintiff can amend the pleading once without having to make a motion to do it. He can just do it

Question 14

Once a D has answered the complaint, how can a amendment to the pleading be made?

Answer 14

Only by a motion to amend. But leave is granted freely and the court usually allows the amendment if it will aid in presenting the merits.

Question 15

If evidence is presented that deviates from the pleading, what two things can possibly happen?

Answer 15

– the defendant can allow it to come in: the complaint is then deemed to be amended to conform with the deviating evidence
– the defendant can object: the plaintiff will then move to amend his complaint to embrace that material. The court generally freely allows this when justice will be promoted by it

Question 16

When does the court usually deny a plaintiff’s motion to amend a pleading?

Answer 16

• when it is brought very LATE in the case: such as at the close of discovery. The idea is that the plaintiff should have moved to amend at the beginning of the case, and because he didn’t, now the other party has to start from scratch with his defense, which causes prejudice
• if it causes PREJUDICE to the other party: because of things like a delay or loss of evidence
  – if the plaintiff acted in BAD FAITH: like he waited to add the claim just to make it difficult for the defendant
  – when the amendment would cause trouble for the court: such as deprive them of SMJ or create an 11th amendment issue

Question 17

Within how many days must you make service after filing a complaint before the complaint will be dismissed?

Answer 17

90 days

Question 18

If a plaintiff doesn’t make service within 90 days of filing a complaint, will the case always be dismissed?

Answer 18

If the plaintiff can show good cause for the failure, the court can extend the time for an appropriate period.

Question 19

What is the most tested area in pleadings?

Answer 19

The relation back doctrine

Question 20

What is involved in the relation back doctrine with regard to pleadings?

Answer 20

Amendments to pleadings relate back to the date of the original pleading if they arise from the conduct, transactions, or occurrence [TNO] set forth in the original. They are than treated as if they were asserted in the original pleading.

This affects things when the SOL has passed

Question 21

Why is the relation back doctrine upheld for amending a pleading even when the SOL has already expired?

Answer 21

Because it’s usually reasonable since the SOL is meant to give notice, and the party had notice of being sued for the proper amount of time

Question 22

What is required in order to amend a pleading after the SOL has already run?

Answer 22

The events must have come from the same TNO

Question 23

Is it OK to put unnamed people in an original complaint, and then when you find out their identity to amend and add their names?

Answer 23

Yes, but that must all happen before the SOL runs, because you can’t use the relation back doctrine to amend after the SOL, since this was not a mistake