Pleading Flashcards
COMPLAINT: Rule 8(a)
“short & plain statement of the claim”
COMPLAINT: Iqbal
(P) needs to provide enough factual info for the court to determine the complaint is plausible
SPECIAL PLEADING: Rule 9(b) and “particularity”
Fraud or Mistake: a party must state with particularity the circumstances constituting fraud or mistake.
SPECIAL PLEADING: Stradford Dentist Case
Dentist was acting fraudulent in regards to damage to his office. Insurance counterclaims. Need “TIME, PLACE, AND NATURE”
SPECIAL PLEADING: Primary purpose of rule 9(B)
make it harder to pursue fraud claims
BURDEN OF PLEADING: Jones Prisoner case
Prisoner injured sued. (D) claims didn’t exhaust administrative remedies. Burden shifts to (D) to prove they did.
BURDEN OF PLEADING: Rule 8(C)
identifies non exhaustive list of affirmative defenses that must be pleaded in response.
ETHICAL CONSIDERATIONS: Rule 11 Basic Procedure
- send opposing party motion 2. wait 21 days 3. if opposing party doesn’t correct then file rule 11 with court.
ETHICAL CONSIDERATIONS: What does Rule 11 apply to?
Applies to all papers filed in the lawsuit: pleadings, motions filed, briefs. NOT DISCOVERY
ETHICAL CONSIDERATIONS: What are a party’s obligations
1) reasonable factual investigation & 2) competent level of legal research
ETHICAL CONSIDERATIONS: Are sanctions mandatory in Rule 11?
No they are discretionary.
ETHICAL CONSIDERATIONS: Bridges = (disability case)
(P) alleged fired b/c of disability but he failed to exhaust administrative remedies. The case is dismissed. (D) files rule 11 and wants sanctions. Judge did not want to deal with sanctions.
ETHICAL CONSIDERATIONS: Walker (incorrect diversity case)
parties in same state. Sanctions granted because he did not know the law competently.
ETHICAL CONSIDERATIONS: Christian (barbie case)
The person did not research enough, if he would have given more factual investigation he would have found out barbie had copyright prior to clients doll.
PLEADING FROM D’S PERSPECTIVE: Options
1) default 2) file pre-answer motion 3) answer & 4) settle quick
PLEADING FROM D’S PERSPECTIVE: Timing
21 days after served
60 days after waiver sent
Pre-Answer motions stop the clock then have 14 days after they are ruled on.
PLEADING FROM D’S PERSPECTIVE: Why are Pre-answer motions good
fast and cheap: no factual investigation, no need for research counterclaims, delay
PLEADING FROM D’S PERSPECTIVE: Rule 12(B)
Lack of personal jurisdiction, subject matter jurisdiction, venue, failure to state a claim.
PLEADING FROM D’S PERSPECTIVE: Rule 12(b)(2)-(5)
Defenses have to be put in 1st defense response otherwise waived.
PLEADING FROM D’S PERSPECTIVE: Rule 12(b)(6)-(7)
may be raised anytime before entry of judgment by the court.
PLEADING FROM D’S PERSPECTIVE: Rule 12(b)(1)
may be raised anytime
THE ANWSER: RULE 8(b)
how to respond to a complaint: 1) admit 2) deny & 3) lack of info
THE ANWSER: Respond to the substance of the (P) allegations
can admit everything but have affirmative defense (SOL, failure to exhaust admin.)
THE ANWSER: Zielinkski
(P) injured in a work place accident. D’s denial needed to be more specific.
AMENDMENTS: Rule 15(a)(1)
Party can amend: ONCE w/i 21 days after serving it. OR 21 days after service of a responsive pleading OR 21 days after motion under 12 (b),(e) or (f).
AMENDMENTS: Rule 15(a)(2)
If a party can’t amend its pleading as a matter of course it may only amend it (1) with approval of the court [FREELY GIVE LEAVE WHEN JUSTICE SO REQUIRES] (2) By written consent of opposing party.
AMENDMENTS: Aquaslide
seeking permission to amend pleading (hoping to deny allegation). But SOL would bar the claim.
AMENDMENTS: When should and amendment not be allowed?
1) undue delay by the persons seeking amendment
2) too many amendments
3) amendment would be futile
4) bad faith
5) undue prejudice to the opposing party.
RELATION BACK: what is it?
adding to a complaint that would otherwise be barred by the SOL
RELATION BACK: Rule 15(c)(1)(b)
relates back when “arose out of the conduct, transaction, or occurrence set out… in the original pleading.
RELATION BACK: Moore surgery case
(D) claims the new claim doesn’t arise out of the same conduct, transaction or occurrence. (D) is right, it was a separate transaction, Different times.
RELATION BACK: Bonerb personal injury case
slipped and fell while playing b ball. focus on the facts. okay to change legal theory.
