Pleading

Question 1

COMPLAINT: Rule 8(a)

Answer 1

“short & plain statement of the claim”

Question 2

COMPLAINT: Iqbal

Answer 2

(P) needs to provide enough factual info for the court to determine the complaint is plausible

Question 3

SPECIAL PLEADING: Rule 9(b) and “particularity”

Answer 3

Fraud or Mistake: a party must state with particularity the circumstances constituting fraud or mistake.

Question 4

SPECIAL PLEADING: Stradford Dentist Case

Answer 4

Dentist was acting fraudulent in regards to damage to his office. Insurance counterclaims. Need “TIME, PLACE, AND NATURE”

Question 5

SPECIAL PLEADING: Primary purpose of rule 9(B)

Answer 5

make it harder to pursue fraud claims

Question 6

BURDEN OF PLEADING: Jones Prisoner case

Answer 6

Prisoner injured sued. (D) claims didn’t exhaust administrative remedies. Burden shifts to (D) to prove they did.

Question 7

BURDEN OF PLEADING: Rule 8(C)

Answer 7

identifies non exhaustive list of affirmative defenses that must be pleaded in response.

Question 8

ETHICAL CONSIDERATIONS: Rule 11 Basic Procedure

Answer 8

1. send opposing party motion 2. wait 21 days 3. if opposing party doesn’t correct then file rule 11 with court.

Question 9

ETHICAL CONSIDERATIONS: What does Rule 11 apply to?

Answer 9

Applies to all papers filed in the lawsuit: pleadings, motions filed, briefs. NOT DISCOVERY

Question 10

ETHICAL CONSIDERATIONS: What are a party’s obligations

Answer 10

1) reasonable factual investigation & 2) competent level of legal research

Question 11

ETHICAL CONSIDERATIONS: Are sanctions mandatory in Rule 11?

Answer 11

No they are discretionary.

Question 12

ETHICAL CONSIDERATIONS: Bridges = (disability case)

Answer 12

(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.

Question 13

ETHICAL CONSIDERATIONS: Walker (incorrect diversity case)

Answer 13

parties in same state. Sanctions granted because he did not know the law competently.

Question 14

ETHICAL CONSIDERATIONS: Christian (barbie case)

Answer 14

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.

Question 15

PLEADING FROM D’S PERSPECTIVE: Options

Answer 15

1) default 2) file pre-answer motion 3) answer & 4) settle quick

Question 16

PLEADING FROM D’S PERSPECTIVE: Timing

Answer 16

21 days after served
60 days after waiver sent
Pre-Answer motions stop the clock then have 14 days after they are ruled on.

Question 17

PLEADING FROM D’S PERSPECTIVE: Why are Pre-answer motions good

Answer 17

fast and cheap: no factual investigation, no need for research counterclaims, delay

Question 18

PLEADING FROM D’S PERSPECTIVE: Rule 12(B)

Answer 18

Lack of personal jurisdiction, subject matter jurisdiction, venue, failure to state a claim.

Question 19

PLEADING FROM D’S PERSPECTIVE: Rule 12(b)(2)-(5)

Answer 19

Defenses have to be put in 1st defense response otherwise waived.

Question 20

PLEADING FROM D’S PERSPECTIVE: Rule 12(b)(6)-(7)

Answer 20

may be raised anytime before entry of judgment by the court.

Question 21

PLEADING FROM D’S PERSPECTIVE: Rule 12(b)(1)

Answer 21

may be raised anytime

Question 22

THE ANWSER: RULE 8(b)

Answer 22

how to respond to a complaint: 1) admit 2) deny & 3) lack of info

Question 23

THE ANWSER: Respond to the substance of the (P) allegations

Answer 23

can admit everything but have affirmative defense (SOL, failure to exhaust admin.)

Question 24

THE ANWSER: Zielinkski

Answer 24

(P) injured in a work place accident. D’s denial needed to be more specific.

Question 25

AMENDMENTS: Rule 15(a)(1)

Answer 25

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).

Question 26

AMENDMENTS: Rule 15(a)(2)

Answer 26

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.

Question 27

AMENDMENTS: Aquaslide

Answer 27

seeking permission to amend pleading (hoping to deny allegation). But SOL would bar the claim.

Question 28

AMENDMENTS: When should and amendment not be allowed?

Answer 28

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.

Question 29

RELATION BACK: what is it?

Answer 29

adding to a complaint that would otherwise be barred by the SOL

Question 30

RELATION BACK: Rule 15(c)(1)(b)

Answer 30

relates back when “arose out of the conduct, transaction, or occurrence set out… in the original pleading.

Question 31

RELATION BACK: Moore surgery case

Answer 31

(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.

Question 32

RELATION BACK: Bonerb personal injury case

Answer 32

slipped and fell while playing b ball. focus on the facts. okay to change legal theory.