Pleadings Flashcards
A plaintiff filed a complaint in federal court alleging that a cell phone application sold by the defendant infringed upon a patent held by the plaintiff. The complaint was signed by an associate at the large law firm that represented the plaintiff. The defendant filed a motion to dismiss, arguing that the cell phone application at issue did not actually perform as described in the complaint, and thus did not affect the plaintiff’s patent. The court held a hearing on the motion to dismiss. At the hearing, the defendant presented evidence that the application performed only functions not covered by the plaintiff’s patent. The defendant also showed that the plaintiff’s attorney had never actually used the application, but had drafted the complaint based solely on his client’s description of the application. The court granted the motion to dismiss. The court also issued an order requiring the plaintiff’s attorney and his law firm to pay the defendant’s attorney’s fees, finding that the plaintiff’s attorney had not conducted a reasonable inquiry into the factual contentions in the complaint.
What of the following is the best argument that the court erred in its order requiring payment of attorney’s fees?
A court may not order a party to pay the opposing party’s attorney’s fees except upon motion.
A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees. In this case, the defendant did not make a motion requesting attorney’s fees, and thus the court erred in imposing such sanctions. Answer choice A is incorrect because, absent exceptional circumstances, a law firm mu
An employer properly brought a conversion action against an employee in federal district court sitting in diversity jurisdiction. The employee’s answer contained an age discrimination counterclaim against his employer based on federal law. The answer was prepared, signed, and filed by the employee’s attorney. The employee’s attorney did not act in bad faith, but did not reasonably investigate the factual contentions made in the counterclaim. The employer’s attorney filed with the court and served on the employee’s attorney a motion to dismiss the counterclaim for failure to state a claim upon which relief can be granted. The next day, the employer’s attorney served a motion for sanctions under Rule 11 on the employee’s attorney based on the failure to reasonably investigate the factual contentions contained in the counterclaim, but did not file this motion with the court. Twenty days later and prior to the court ruling on the dismissal motion, the employee’s attorney filed a notice of dismissal with respect to the counterclaim.
May the employer’s attorney continue to pursue its motion for sanctions by filing it with the court?
No, because the employee’s attorney filed a notice to dismiss the counterclaim.
A party (or party’s attorney) may seek sanctions that can include the payment of reasonable attorney’s fees and other costs attributable to violation of the certification made by a party or the party’s attorney in presenting a pleading or other paper to the court. Among the certifications made is that factual contentions contained in a pleading have evidentiary support based on a reasonable inquiry. Although the employee’s attorney violated this certification, the employee’s attorney is not subject to sanctions because the attorney withdrew the counterclaim within 21 days of service of sanctions motion.
A plaintiff, a citizen of State X, sued a defendant, a citizen of State Y, for negligence in federal district court in State X under diversity jurisdiction, in connection with an automobile accident that occurred in State Y. The defendant has had no contacts with State X. The plaintiff personally served the defendant with a summons and complaint at his home in State Y. The defendant’s first response to the complaint was an answer that specifically denied the plaintiff’s claims but omitted the defense of lack of personal jurisdiction. Fifteen days after serving the answer on the plaintiff, the defendant amended the answer to include the defense of lack of personal jurisdiction without asking leave of the court.
Which of the following statements is most accurate regarding the defendant’s actions?
The defense of lack of personal jurisdiction was not waived and may be asserted by the defendant.
Pursuant to Rule 15(a)(1)(a), a party may amend its pleading once as a matter of course within 21 days after serving it. Under Rule 12(h)(1)(B), a party waives the defense of lack of personal jurisdiction by failing to include it in a pre-answer motion, a responsive pleading, or in an amendment allowed by Rule 15(a)(1), as a matter of course. Here, the defendant included the defense of lack of personal jurisdiction in an amendment made within 21 days after serving its answer. Accordingly, the defense was not waived and may be asserted by the defendant in the case.
A homeowner filed a complaint against a contractor for damages arising from negligent construction of an addition to the homeowner’s house. The complaint was timely and properly filed in federal district court sitting in diversity jurisdiction. Nineteen days after the contractor filed his answer, the homeowner learned that material supplied by a manufacturer and used by the contractor was defective. The next day, without leave of the court or the contractor’s agreement, the homeowner amended the complaint to add the manufacturer as a defendant in this action. The manufacturer filed a motion to dismiss the complaint against her. The manufacturer pointed out that she had no knowledge of the action nor reason to know of it prior to the homeowner’s amendment of the complaint, and that the controlling statute of limitations had expired after the original complaint was filed and before the amended complaint was filed.
Should the court grant the manufacturer’s motion to dismiss?
Yes, because the statute of limitations had expired before the amended complaint was filed.
Because the statute of limitations with respect to the homeowner’s claim against the manufacturer had expired prior to the time that the homeowner amended the complaint to include this claim, the court should grant the manufacturer’s motion to dismiss.
A plaintiff filed a breach of contract action based on diversity jurisdiction in federal district court. In her answer, the defendant alleged that she was not liable to the plaintiff due to a novation. The plaintiff did not reply to this allegation and the court did not order the plaintiff to do so.
How should the court treat the defendant’s novation allegation?
As denied by the plaintiff, because the plaintiff was not required to respond to the defendant’s pleading.
Under Rule 7(a)(7), a reply to the defendant’s answer is made only when the plaintiff is ordered to do so by the court. Thus, the plaintiff is deemed to deny any allegations in the defendant’s answer, including any affirmative defenses, if not ordered to reply.
A bakery negotiated with a supplier regarding a long-term commitment to supply flour. They agreed to specific terms to be memorialized in a written contract. Due to an oversight, the supplier never signed the written contract, although it began providing flour to the bakery under the terms of their agreement. Six months later, the price of flour rose dramatically following a nationwide drought. The supplier, realizing that it had never signed the contract, told the bakery that it would have to charge a higher price for the flour. The bakery properly filed a complaint in federal district court, alleging that the flour supplier had breached their contract. The flour supplier filed an answer in which it denied the factual allegations in the complaint regarding the price and duration of the contract, but did not raise any affirmative defenses. The following day, the flour supplier filed a motion to dismiss, asserting that the oral contract between the parties violated the Statute of Frauds.
Can the court grant the defendant’s motion to dismiss?
No, because the defendant did not assert a defense based on the Statute of Frauds in its answer.
An answer must not only admit or deny the allegations of the plaintiff’s complaint but also state applicable affirmative defenses, including the Statute of Frauds. Those affirmative defenses not stated in the defendant’s answer are deemed waived. In this case, the defendant did not assert the affirmative defense of the Statute of Frauds, and thus the defense would be deemed waived.
A buyer purchased a residence with the aid of a loan from a relative. The relative took a mortgage on the residence as security for repayment of the loan. The buyer subsequently sold the residence to a third party. Neither the buyer nor the third party made payments that were due under the terms of the loan. The relative filed a foreclosure action in federal court against the third party based on diversity jurisdiction. The third party filed a motion to dismiss based on a lack of personal jurisdiction. The court denied this motion. Twenty days after receiving notice of the court’s ruling, the third party served an answer on the relative. In the answer, the third party asserted for the first time that she recorded the deed without notice of the mortgage. The relative responded that the third party had waived this defense.
Is the relative correct?
Yes, because the third party’s assertion of this defense was untimely.
When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has 14 days after receiving notice of the court’s decision on this motion to file its answer. Here, the defendant did not file her answer within that time period.
A defendant filed a complaint against a third-party defendant for contribution permitted under federal law for any environmental damages for which the defendant was found liable. The third-party defendant and the defendant were domiciled in the same state. The third-party defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted. The third-party defendant submitted affidavits in support of its position, but the court refused to consider them. After taking all well-pleaded facts in the complaint as true and resolving all doubts and inferences in the defendant’s favor, the court denied the motion to dismiss.
Has the court acted properly in making its ruling?
Yes, because the court took all well-pleaded facts in the complaint as true and resolved all doubts and inferences in the defendant’s favor.
In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must take all well-pleaded facts in the complaint as true and resolve all doubts and inferences in the complainant’s favor. Here, the defendant is the complainant.
An air-freight handler had a four-year contract with an airport in a neighboring state to handle all air freight for the airport. The contract represented 80 percent of the air-freight handler’s total business. Two years into the contract, the airport accepted an offer from another company to handle the business at two-thirds of the price of the contract with the air-freight handler. The airport notified the air-freight handler in writing that it had executed a contract with the other company and would be cancelling its contract, and the air-freight handler brought suit in federal district court under diversity jurisdiction seeking injunctive relief to enforce the contract.
Is the court likely to grant the air-freight handler’s request for a preliminary injunction?
No, because monetary damages are potentially available to the air-freight handler.
A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public. All four of these factors must be satisfied. Under these facts, there is no irreparable injury, as monetary damages are potentially available to compensate the air-freight handler for any breach of contract by the airport. If the affected party can recover damages, the harm is not irreparable.
An engineer at a technology company signed a non-compete agreement preventing him from discussing confidential matters with specific named competitors. One year later, the company learned that the engineer had been working with a major competitor as a contractor and had been using confidential information acquired during his employment with the technology company. In order to immediately prevent the engineer from using information in violation of the non-compete agreement, the technology company properly filed a complaint against the engineer in federal court, alleging a violation of the agreement and seeking an injunction that would prevent the engineer from continuing to work with the competitor. Over the engineer’s objection, the court issued a temporary restraining order that held the non-compete agreement to be valid and enforceable, and prohibited the engineer from working with the competitor. The court further stated that the restraining order would remain in effect for 21 days, with a full hearing on a preliminary injunction scheduled for the day the temporary restraining order expired. Twenty days later, the engineer resumed working with the competitor.
Has the engineer violated the temporary restraining order?
No, because the temporary restraining order was no longer in effect.
A temporary restraining order (TRO) preserves the status quo of the parties until there is a full hearing on the application for a preliminary injunction. This temporary injunction remains in effect for an amount of days to be set by the court, but no longer than 14 days unless good cause exists or by consent of the adversary. Here, the court could determine the applicable period, but could not extend that period beyond 14 days absent good cause or consent of the adversary. The facts indicate that the engineer (the adversarial party) objected to the TRO, and there was no good cause shown other than the urgency of any normal injunction. Therefore, the customary 14-day period would apply. Answer choice A is incorrect because although a hearing was scheduled, the TRO itself was no longer in effect, as explained above.
A plaintiff filed a defamation action against a defendant in federal district court under diversity jurisdiction eleven-and–a-half months after the alleged defamation occurred. The plaintiff mailed a notice of the commencement of the action along with a request for waiver of the service of the summons to the defendant, who lived in another state. The defendant signed the waiver and returned it to the plaintiff. The plaintiff filed the waiver with the court 30 days after sending the waiver request to the defendant. Twenty-three days later, the defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted. The defendant contended that the action was not brought within the one-year time period for defamation actions under the applicable state law. For purposes of this and other statutes of limitations, the forum state’s procedural rules provide that an action does not commence until process has been served.
How should the court rule on the defendant’s motion to dismiss?
Grant the motion, because the statute of limitations period had expired.
If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process. In this case, because the date the plaintiff filed the waiver form was more than one year after the alleged defamation occurred and the cause of action arose, the court should grant the defendant’s motion to dismiss
