Pleadings

Question 1

When must a plaintiff serve a summons and complaint?

Answer 1

Within 90 days of filing the complaint. Unless good-cause is shown.

If not, dismissed WITHOUT prejudice.

Question 2

What are the different ways service of process is allowed?

Answer 2

1. ) In hand personal service
2. ) At defendant’s usual place of abode with a person of suitable age and discretion.
3. ) Delivery to authorized agent.
4. ) Registered mail (foreign countries only), with return receipt requested.

Question 3

What is the rule for service on a corporation?

Answer 3

Service is allowed by giving to officer or agent, or by following state law.

Question 4

What is waiver of service?

Answer 4

A request for waiver of service must be in writing and addressed to the individual defendant, or officer/agent of a corporation, and must give defendant reasonable time of at least 30 days after request sent to return waiver.

The effect of a waiver is it extends time to service answer from 21 days after service to 60 days after waiver request sent (or 90 days if foreign).

Failure to waive = payment of attorneys expenses upon motion for them.

Question 5

What are the three types of pleadings?

Answer 5

1. Complaint
2. Answer
3. Reply

Question 6

For pleadings, how is time calcualted?

Answer 6

Whenever a time period is stated in days, the period

• excludes the day of event that triggers it.
• includes everyday following, including weekends + legal holidays.
• if the last day is a weekend or holiday , then period is extended to include next weekday or non-holiday.

Question 7

Who can make service?

Answer 7

A non-party that is at least 18 years old.

Question 8

How is service accomplished on the US government and its agencies and officers?

Answer 8

A party must
- deliver a copy of the summons and complaint to the US attorney for the district whether the actions is brought, or send a copy by mail to clerk;

• Send a copy by registered mail to US Attorney General; and

If action challenges an order of a non-party agency or officer of the US< send a copy by registered or certified mail to the agency or officer.

Question 9

What are the three types of injunctions?

Answer 9

TPP
1. Temporary Retraining Order

2. Preliminary Injunction
3. Permanent Injunction

Question 10

What is a temporary restraining order (TRO)?

Answer 10

• May remain in affect for no longer than 14 unless good cause or adversary consents.
• Not immediately appealable unless they have the effect of injunction (extends beyond 14 days).
• No notice needed if moving party can establish under written oath, that immediate and irreparable injury will result prior to hearing and the movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.
• Must contain the date and time issued, the irreparable harm suffered, and the reasoning behind ex parte issuance.

Question 11

What is a preliminary injunction?

Answer 11

• Issued prior to a full hearing on merits but only upon notice to the defendant and a hearing on whether the injunction should issue.
• Plaintiff must establish that
  1. he is likely to succeed on merits
  2. he is likely to suffer irreparable harm in the absence of relief
  3. the balance of equities is in his favor, and
  4. the injunction is in the best interests of the public.

Question 12

What is a permanent injunction?

Answer 12

A determination on the merits. Continues until dissolves by court.

• Plaintiff must establish that
  1. Actual success on merits
  2. he is likely to suffer irreparable harm in the absence of relief
  3. the balance of equities is in his favor, and
  4. the injunction is in the best interests of the public.

Question 13

What must a complaint include?

Answer 13

i) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;
ii) A short and plain statement of the claim establishing entitlement to relief; and
iii) A demand for judgment for the relief sought by the pleader.
iv) An allegation of the subject matter jurisdiction of the court, unless the court already has jurisdiction and the claim needs no new jurisdictional support.

Question 14

When must a defendant respond to a complaint either by an answer or by a pre-answer motion, or by seeking additional time to answer?

Answer 14

Within 21 days of service of process.

If a defendant does not take one of these steps, then she risks a default

Question 15

What are the Rule 12(b) defenses generally?`

Answer 15

i) Lack of subject matter jurisdiction;
ii) Lack of personal jurisdiction;
iii) Improper venue;
iv) Insufficient process;
v) Insufficient service of process;
vi) Failure to state a claim upon which relief can be granted; and
vii) Failure to join a necessary or indispensable party under Rule 19.

Question 16

What is the rule for timing and a 12(b) motion to dismiss for lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process defenses?

Answer 16

Must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived.

Question 17

What is the “omnibus motion” rule?

Answer 17

When a party makes a pre-answer motion raising one of the 12(b) motion to dismiss for lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process defenses, but omitting the others, the party may not make another pre-answer motion raising one of the omitted defenses that was available to the party when the earlier motion was filed.

The party is deemed to have waived the excluded defenses.

Question 18

What is rule for timing and a 12(b) motion to dismiss for failure to state a claim upon which relief can be granted and failure to join a necessary or indispensable party?

Answer 18

The defenses of failure to state a claim upon which relief can be granted and failure to join a necessary or indispensable party under Rule19 may be raised in any pleading, in a motion for judgment on the pleadings, or at trial.

Question 19

What is a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 19

A claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim.

Note: In deciding a motion under Rule12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.

Question 20

What can a court consider when ruling on a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 20

Only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice.

If a matter outside the pleadings, such as an affidavit, is presented to the court and is not excluded by the court in its review, then the motion must be treated as a motion for summary judgment

Question 21

Motion for judgment on the pleadings?

Answer 21

A motion for judgment on the pleadings allows a court to dispose of a case when the material facts are not in dispute and a judgment on the merits can be achieved based on the content of the pleadings.

Note: Must be made after an answer is filed.

Question 22

What is a motion for a more definite statement

Answer 22

If a pleading is so vague or ambiguous that a party cannot reasonably draft a required responsive pleading, then the responding party may move for a more definite statement.

The motion must specify the defects in the pleading, as well as the details sought by the party making the motion.

The party must make a motion for a more definite statement before filing a responsive pleading. The court may strike a party’s pleading if the party fails to respond to a court order granting this motion within 14 days of the notice of the order.

Question 23

What is a motion to strike?

Answer 23

If a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its own initiative, may order that such defense or material be stricken.

When a responsive pleading is permitted, the responding party must move to strike prior to responding to such a pleading. When no responsive pleading is permitted, the party must make a motion to strike within 21 days after service of the pleading.

Question 24

What is an answer?

Answer 24

An answer is a pleading by the defendant that responds to a plaintiff’s complaint. A plaintiff would also file an answer if responding to a defendant’s counterclaim.

Question 25

What is the effect of a failure to deny in an answer?`

Answer 25

An allegation, other than one relating to the amount of damages, will be deemed admitted if a responsive pleading is required and the allegation is not denied.

Question 26

Must a answer state the avoidance or affirmative defenses that a defendant wishes to invoke?

Answer 26

Yes. If not, they are waived.

Examples include;
i) Accord and satisfaction;

ii) Arbitration and award;
iii) Assumption of risk;
iv) Contributory negligence;
v) Duress;
vi) Estoppel;
vii) Failure of consideration;
viii) Fraud;
ix) Illegality;
x) Injury by fellow servant;
xi) Laches;
xii) License;
xiii) Payment;
xiv) Release;
xv) Res judicata;
xvi) Statute of Frauds;
xvii) Statute of limitations; and
xviii) Waiver.

Question 27

What is the time and procedure for serving an answer to a complaint?

Answer 27

Procedure

• If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.
• May generally be accomplished by:
  i) Leaving the pleading:

    a) At the person’s office with a clerk or someone in 
    charge or, if no one is in charge, in a conspicuous 
    place in the office; or
  
    b) If the person has no office or the office is closed, 
    at the person’s dwelling or usual place of abode with 
    someone of suitable age and discretion who resides 
   there;

ii) Mailing it to the person’s last known address;
iii) Leaving it with the court clerk if the person has no known address;
iv) Sending it to a registered user by filing it with the court’s electronic-filing system or sending it by other electronic means that the person consented to in writing; or
v) Delivering it by any other means that the person consented to in writing.

Timing
- If no motion is made under Rule 12, then a defendant must serve an answer within 21 days after being served with the summons and complaint.

• If the defendant has timely waived service then she must serve the answer within 60 days after the request for a waiver was sent, or within 90 days after it was sent to her outside any judicial district of the United States.
• When a motion is made under Rule 12, a defendant will not have to serve an answer while the motion is pending. If the court denies or postpones disposition of the motion until a trial on the merits, then the answer must be served within 14 days after notice of the court’s action. If the court grants a motion for a more definite statement, then the answer must be served within 14 days after service of the more definite statement.

Question 28

What is a reply?

Answer 28

A reply is a response by the plaintiff to a defendant’s answer. It can also be a response by a defendant to a plaintiff’s counterclaim answer, a third-party answer, or a cross-claim answer.

A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

Question 29

What are the two types of amendments?

Answer 29

By Right
- A party may amend a pleading once as of right within 21 days if no responsive pleading is required, or, if a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier. Thus, a plaintiff may amend his complaint even after being served with an answer (up to 21 days), but he is also limited to 21 days to amend after being served with a Rule 12(b) motion

By Leave of Court
- The court should freely give leave to amend a pleading when justice so requires.Generally, a court will first determine if the proposed amendment to the pleading would be futile because it would immediately be subject to dismissal under Rule 12(b)(6). If it would not, the amendment will generally be permitted unless it would result in undue prejudice to the opposing party. However, when the court has issued an order regarding the trial plan after a final pretrial conference, which may include the issues for trial, the court may modify that order only to prevent manifest injustice.

Question 30

What is a supplemental pleading?

Answer 30

A court has discretion to permit supplemental pleadings that describe events occurring after the filing of an earlier pleading. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may also order that the opposing party respond to the supplemental pleading within a specified time.

A supplemental pleading does not supersede an original pleading.

Question 31

What is Rule 11?

Answer 31

Establishes the standards that attorneys and individual parties must meet when filing pleadings, motions, or other papers. It also provides for sanctions against parties, attorneys, and law firms for violations of the rule.

Every pleading, written motion, and other paper filed with the court must be signed by at least one attorney of record, or by a party personally if unrepresented. The paper must state the signer’s physical address, e-mail address, and telephone number.

By presenting to the court a pleading, written motion, or other paper, an attorney or unrepresented party certifies that to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

i) The paper is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
ii) The claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
iii) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
iv) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Question 32

What is the rule for sanctions?

Answer 32

Sanctions can be initiated either by motion or by the court on its own initiative.

Sanctions “must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.”

The court cannot impose a monetary sanction on its own, unless it issued an order to show cause before the claims were voluntarily dismissed or settled by or against the party who is, or whose attorneys are, to be sanctioned.

The court also is not permitted to impose a monetary sanction against a represented party for violating the requirement that the claims, defenses, and other legal contentions of the paper be warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Question 33

How does relation back work for an amendment?

Answer 33

An amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. An amendment will also relate back to the date of the original pleading if the law that provides the applicable statute of limitations allows relation back.

If the amendment changes the party or the naming of the party against whom a claim is asserted, then it will relate back to the date of the original pleading if:

i) It asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading;
ii) Within 90 days after the filing of the original complaint, the party to be brought in by amendment receives notice of the action such that he will not be prejudiced in defending on the merits; and
iii) The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.

Question 34

What is the rule for time to respond to an amended pleading?

Answer 34

Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or within the time remaining for response to the original pleading.

Question 35

What is the rule for proof of service?

Answer 35

The federal rules mandate that, unless formal service is waived, a process server must submit proof of service to the court.

However, the failure to make proof of service does not affect the validity of the service.