Pleading

Question 1

What is the complaint? And what Rule governs it?

Answer 1

The complaint is filed by the plaintiff to assert its allegations against the defendant and its claim for relief. Rule 8 sets out a liberal scope for complaints.

Question 2

What are the two cases to site when doing an analysis for sufficiency of a complaint?

Answer 2

Twombly and Iqbal. A complaint must include enough facts (not just allegations) to cross line from probable to plausible. Plausibility is determined through a context specific test using “judicial experience” and “common sense.”

Question 3

What is the purpose of the complaint?

Answer 3

To put the defendant on notice of the suit so they can prepare a defense.

Question 4

How can a defendant respond to the plaintiff’s complaint?

Answer 4

Two ways (1) an answer and (2) a 12(b) motion

Question 5

What are the 7 types of defenses under a 12(b) motion?

Answer 5

(1) no SMJ (2) no PJ (3) improper venue (4) insufficient process (5) insufficient service of process (6) failure to state a claim upon which relief can be granted and (7) failure to join a party under Rule 19 (necessary party)

Question 6

Which of the 12(b) defenses are waiveable? And what does that mean?

Answer 6

2-5, so PJ, venue, and notice. If you don’t bring them up in your answer or when responding to the plaintiff’s complaint then you can’t bring these defenses again (they are waived).

Question 7

What types of denials can you make in an answer?

Answer 7

General (you deny literally everything) and Specific (you go line by line and deny specific claims - any other responses to claims that are not denials must be admitted or that you lacked knowledge)

Question 8

What is the rule that governs denials in an answer?

Answer 8

Rule 8(b)

Question 9

What is the rule from Zielinkski?

Answer 9

General denials are dangerous, you are responsible for any ill your general denial causes.

Question 10

What is the case to cite for denials?

Answer 10

Zielinkski

Question 11

What are the cases to cite for Amending Pleadings?

Answer 11

Aquaslide, Costa Crociere and Worthington

Question 12

What Rule governs sanctions and what case lays this out?

Answer 12

FRCP 11 and Yonkers Racing

Question 13

What rules govern amending pleadings?

Answer 13

15(a) and (c)

Question 14

How many days do you have to amend a pleading?

Answer 14

21 after serving it, or 21 days after service of an answer or 12(b) motion. If you miss these deadlines you can only amend with the consent of the other party or court’s permission when justice so requires. (Rule 15(a)).

Question 15

How many days do you have to respond to an amended pleading has been submitted?

Answer 15

14 days or whatever time is left to respond to the original pleading (whichever is later). Per Rule 15(a).

Question 16

When does an amended pleading relate back to the date of the original pleading?

Answer 16

(1) When SOL law allows relation back, (2) amendment asserts a claim or defenses that arose out of the transaction set out in the original pleading, or (3) amendment changes a party’s name because of a mistake in the original pleading

Question 17

What does Rule 11 cover?

Answer 17

Sanctions, Signature of a pleading and attorney representations when signing the pleading.