Pleadings Flashcards
What must a complaint contain?
(1) subject matter jurisdiction
(2) claim
(3) relief
How must a defendant respond?
By motion or answer. And the defendant must do one of these things no later than 21 days after being served with process to avoid default. If the defendant waived service , the defendant has 60 days from when the plaintiff mailed the waiver form.
12(e) motion for a more definite statement
The complaint is so vague or ambiguous that defendant simply cannot respond; must be made before answering.
12(f) motion to strike
Asks the court to remove redundant or immaterial things from pleadings; any party may move for this.
Rule 12(b) defenses
(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) improper process
(5) improper service of process
(6) failure to state a claim
(7) failure to join an indispensable party.
(2) - (7) must be put in the first motion before answer or first answer or they are waived.
How can the defendant respond to the allegations of a complaint?
(1) Admit
(2) Deny
(3) State that you lack sufficient information to admit or deny.
When does the plaintiff have a right to amend the complaint?
Once no later than 21 days after service.
When does the defendant have a right to amend the answer?
Once no later than 21 days after serving the answer.
What if there is no right to amend?
You have to seek leave of court, and it will be granted if “justice so requires.”
Variance
Where the evidence at trial doesn’t match what was pleaded.
When will an amended pleading “relate back?”
If they concern the same conduct, transaction, or occurrence as the original pleading; if a new defendant knew of this case within 90 days of filing; or if she also knew or should have known that, but for a mistake, she would have been named originally.
Supplemental pleadings
Set forth things that happened after the pleading was filed.
Rule 11
When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry; the paper is not for in improper purpose; and the legal contentions are warranted by law; and the factual contentions and denials of factual contentions have evidentiary support.
Safe harbor rule
You serve Rule 11 motions on other parties but cannot file them. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed.
