Pleadings

Question 1

Defense Responses to P’s Complaint:

• what are they?
• are they pleadings?

Answer 1

Under FRCP 12 a D may respond in one of two ways NO LATER THAN 21 DAYS after service of process.

1- Answer- this is a pleading; it responds to allegations of the complaint and raises affirmative defenses, counterclaims, cross-claims

2- Make a Motion- motions are NOT pleadings; they ask the court to order something

Question 2

7 Defenses that can be raised EITHER in the answer or by motion

Answer 2

(1) lack of subject matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process (a problem with the documents);
(5) insufficient service of process;
(6) failure to state a claim on which relief can be granted;
(7) failure to join an indispensable party

Question 3

Timing:

• lack of PJ
• improper venue
• insufficient process
• insufficient service of process

Answer 3

MUST MUST MUST be put in your first FRCP Rule 12 response (answer or motion) or they are waived!!!

Question 4

Timing:

• failure to state a claim
• failure to join an indispensable party

Answer 4

CAN BE RAISED FOR THE FIRST TIME ANYTIME THROUGH THE TRIAL

Question 5

Timing:

- subject matter jurisdiction

Answer 5

NEVER WAIVED, CAN BE RAISED ANYTHING IN THE CASE, EVEN FOR THE FIRST TIME ON APPEAL

Question 6

Complaint Must Contain: (3)

Answer 6

1- statement of SMJ
2- short and plain statement of the claim, showing entitled to relief
3- demand for judgment (does not limit what can be recovered except in default cases)

Question 7

What must be contained in the “short and plain statement of the claim”

Answer 7

• FRCP say you need “notice pleading” – enough to put the other side on notice

BUT

• The supreme court says P must plead FACTS SUPPORTING A PLAUSIBLE CLAIM

Question 8

When do you have to plead facts with specificity or particularity?

Answer 8

1- Fraud

2- Mistake

3- Special Damages (damages that do not normally flow from an event)