Pleadings

Question 1

What is a complaint? What must it contain? (3 + 2)

Answer 1

The filing of the complaint commences an action.

The complaint must contain:
(1) A statement of grounds of subject matter jurisdiction

(2) A short and plain statement of the claim showing that the plaintiff is entitled to relief; and
(3) A demand for relief sought (e.g., damages, injunction, declaratory judgment)

The plaintiff need not allege grounds for personal jurisdiction or venue.

Question 2

In stating the claim, the plaintiff must plead _______.

Answer 2

sufficient facts to support a plausible claim.

Question 3

What is the pleading standard for cases involving fraud, mistake, and special damages?

Answer 3

Plaintiff must plead with particularity and specificity.

Question 4

Rule 12 requires the defendant to respond in one of two ways:

Answer 4

(1) by motion, or

(2) by answer

Question 5

How long does a defendant have to file a motion or answer? What consequence if the defendant does not?

Answer 5

D must either file a motion or an answer no later than 21 days after being served with process.

If D waived service, D has 60 days from when P mailed the waiver form to respond.

If D files neither a motion nor an answer, D risks a default judgment being entered.

Question 6

Which Rule 12 motions address issues of form? (2)

Answer 6

(1) Rule 12(e) motion for more definite statement: used when the complaint is so vague or ambiguous that D simply cannot respond (must make this motion before answering)
(2) Rule 12(f) motion to strike: asks the court to remove redundant or immaterial things from a pleading (e.g., a complaint, an answer, etc.)

Any party can move to strike

Question 7

Which Rule 12(b) defenses will be waived if not put in the first Rule 12 response (motion or answer)? (4: 3Ps and a V)

Answer 7

(1) lack of personal jurisdiction
(2) improper venue
(3) improper process (a problem with the papers)
(4) improper service of process

Question 8

Which Rule 12 defenses can be raised later, and when? (3)

Answer 8

(1) failure to state a claim: may be made as late as at trial
(2) failure to join an indispensable party: may be made as late as at trial
(3) lack of subject matter jurisdiction: may be made at any time

Question 9

If a Rule 12 motion is denied, what must the defendant due? How long?

Answer 9

Serve his answer no later than 14 days after notice of the denial

Question 10

The defendant does two things in an answer:

Answer 10

(1) Respond to the allegations in the complaint AND

(2) Raise affirmative defenses

Question 11

In responding to the complaint, the defendant may: (3)

Answer 11

(1) Admit some or all allegations;
(2) Deny some or all allegations; AND
(3) State that she has insufficient knowledge to admit or deny some or all of the allegations (has effect of denial, but a party cannot do this if the answer to an allegation is in their control)

Question 12

Failure to deny an allegation is _______ except regarding _______.

Answer 12

(1) an admission

(2) the amount of damages

Question 13

What is the consequence of failing to raise an affirmative defense in an answer? (+ exeption)

Answer 13

The court may treat it as waived, subject to the timing rules in Rule 12.

Question 14

The defendant has a right to amend his answer _______ no later than _______ of serving it.

Answer 14

(1) once

(2) 21 days

Question 15

If D’s first response was an answer in which he failed to raise “waivable defenses” and/or an affirmative defense…

Answer 15

He has a right to amend his answer to include them

Question 16

After the period to amend as of right, the amending party must _______.

Answer 16

seek leave of court, or get the written consent of the opposing party

Question 17

What is variance? What effect?

Answer 17

Variance occurs when the evidence at trial does not match what was pleaded.

If the other party fails to object at trial, the party introducing evidence may move to amend the complaint to conform to the evidence.

Question 18

What happens if a party seeks to amend their pleading to join a claim they did not originally assert? What effect?

Answer 18

An amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading.

Relation back means you treat the amended pleading as though it was filed on the date the original was filed, so it may avoid a statute of limitations problem.

Question 19

An amendment to change a defendant will relate back if: (3 requirements)

Answer 19

(1) The amendment concerns the same conduct, transaction, or occurrence as the original
(2) The defendant had knowledge of the case such that she will be able to avoid prejudice; AND
(3) The defendant knew or should have known that, but for a mistake, she would have been named originally

Almost always comes up when the plaintiff sued the wrong defendant, but the right defendant knew about it.

Question 20

What are supplemental pleadings?

Answer 20

Supplemental pleadings set forth things that happened after the pleadings were filed.

There is NO right to file a supplemental pleading. Court has discretion to grant or deny the motion.

Question 21

Rule 11 applies to _______ except _______.

Answer 21

(1) all papers

(2) discovery

Question 22

When the lawyer or pro se party signs documents, they certify that to the best of their knowledge and belief, after reasonable inquiry: (3 things)

Answer 22

(1) The paper is not for an improper purpose;
(2) The legal contentions are warranted by law or a nonfrivolous argument for a law change; AND
(3) The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

Question 23

What is the safe harbor provision for Rule 11 violations?

Answer 23

If a party violates Rule 11, the other party cannot immediately file a motion for Rule 11 sanctions. Rather, the party serves the motion on the other party but does not file it with the court yet.

The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If they do not, the motion can then be filed with the court.