Pleading - Responding to a Complaint

Question 1

Options for Responding

Answer 1

Ignore the complaint – results in default judgement

Defend the complain – Rule 12

Question 2

Answering the Complaint

Answer 2

Admit or deny allegations and set out defenses

Question 3

Conley v. Gibson

Beyond a Doubt

Answer 3

A complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Question 4

Bell Atlantic Corporation v. Twombly

Plausibility Standard

Answer 4

The court only has to accept factual allegations as true if they do more than just recite the elements of the claim.

Only a complaint that states a plausible claim for relief survives a motion to dismiss.

Question 5

Ashcroft v. Iqbal

Process for Deciding

Answer 5

Begin by looking at the elements of a claim

Then identify nonconclusory fact statements and accept them as true.

Decide whether the well-pleaded factual allegations are plausible enough to entitle the plaintiff to relief.

Question 6

Rule 12(a)(1)

Answering a Complaint

Answer 6

A defendant must answer

• Within 21 of service or
• If the defendant waived service, within 60 days after the request for waive was sent, or within 90 days for a foreign defendant

Question 7

Rule 12(b)(2)-(5)

Pre-Trial motions That Must be Brought Together

Answer 7

• Lack of personal jurisdiction
• Improper venue
• Insufficient process – improper summons/wrong documents
• Insufficient service of process

Question 8

Rule 12(b)(1)

Answer 8

Lack of subject-matter jurisdiction

Question 9

Rule 12(b)(6)

Answer 9

Failure to state a claim

Question 10

Rule 12(e)

Motion for a More Definite Statement

Answer 10

Must be made before filing a responsive pleading, point out defects and list desired details

If the court grants the motion, the other party must obey the order within 14 days or the court may strike

Question 11

Rule 12(f)

Motion to Strike

Answer 11

A court may strike any insufficient defense or any redundant, immaterial, impertinent or scandalous matter

Question 12

Rule 12(g)

Joining Motions

Answer 12

All motions under this rule may be brought together

Except for Rule 12(h) (2) or (3), a party may not bring a second motion for a defense under this rule that could have been in its first motion

Question 13

Rule 12(h)

Waiving and Preserving Certain Defenses

Answer 13

A party waived defenses in Rule 12(b)(2)-(5) by not including them in its first 12(b) motion

Failure to state a claim, to join a person required by 19(b), or to state a legal defense to a claim may be raise at any time.

If a court determines it lacks subject-matter jurisdiction, it must dismiss the case

Question 14

Rule 12(i)

Hearing Before Trial

Answer 14

Any defense in 12(b)(1)-(7) and a motion under 12(c) must be heard and decided before trial unless the court defers it until trial

Question 15

Hunter v. Serv-Tech, Inc.

12(b) Defenses

Answer 15

Defendants must use whatever 12(b) defenses that are available to them when they file their first pre-answer motion or they waive the defenses.