Pleading

Question 1

What is a demurrer?Demurrer:

Answer 1

A demurrer test sufficiency of a pleading that seeks affirmative relief.

Question 2

What can a demurrer be used for?

Answer 2

It may be used for misjoinder of claims, lack of subject matter jurisdiction, failure to state a cause of action.

Question 3

What does the defendant need to include in their demurrer?

Answer 3

The pleading must say specifically why the plaintiffs pleading is insufficient.

A demurrer may not allege new facts

Question 4

What happens if demurrer is sustained?

Answer 4

If a demur is sustained usually the court will sustain without prejudice and set time for amendment

Question 5

When does the defendant need to file a demurrer

Answer 5

the defendant can file a demurrer before her answer or at the same time.

If defendant files their answer before they demur, then they cannot demur without courts permission

Question 6

What is a Plea in Bar of recovery?

Answer 6

A plea in bar or a special plea may be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer. The advantage is that they present a single set of facts that if true would alleviate the need to proceed further with the action. (Statute of fraud statute of limitations

Question 7

What is the advantage of a plea in bar of recovery?

Answer 7

The advantage is that they present a single set of facts that, if true, would alleviate the need to proceed further with the action. (Ex: Statute of fraud, statute of limitations)

Question 8

Options if defendant believes he is not a proper defendant and seeks dismissal from the case:

Answer 8

1. Demurrer- If pleading set forth a valid cause of action again against defendant as a matter of law, defendant should file a demurrer, which tests the legal sufficiently of the complaint.
2. Motion for summary judgement- If Plaintiffs pleading sets forth a valid cause of action, defendant could proceed by initiating discovery. Through the use of interrogatories, requests for admission and depositions, defendant may be able to establish that Plantiff has no facts which would support a claim against him as a matter of law.
3. Plea of misjoinder: if improperly joined as a party