Pleadings Flashcards
What is a complaint?
In federal court, the filing of the complaint commences an action.
What is the content of the complaint?
The complaint must contain:
a. A statement of grounds of subject matter jurisdiction;
b. A short and plain statement of the claim showing that the plaintiff is entitled to relief; and
c. A demand for relief sought (for example, damages, injunction, declaratory judgment).
The plaintiff need not allege grounds for PJ or venue.
What are the details required in a complaint?
In stating the claim, the plaintiff must plead sufficient facts to support a plausible claim. To determine plausibility, the judge uses her own experience and common sense. The defendant can challenge the complaint by making a Rule 12(b)(6) motion to dismiss for failure to state a claim.
What are special pleading requirements for certain cases?
Fraud, mistake, and special damages must be pleaded with more detail; that is, with particularity or specificity.
What Is the defendant’s response?
Rule 12 requires the defendant to respond in one of two ways: (1) by motion or (2) by answer. To avoid default, the defendant must do one of these two things no later than 21 days after being served with process. If the defendant
waived service, the defendant has 60 days from when the plaintiff mailed the waiver form to respond.
What is a motions (rule 12)?
Motions are not pleadings; they are requests for a court order.
a. Motions Addressing Issues of Form
Rule 12 motions address issues of form.
• A Rule 12(e) motion for more definite statement is used when the complaint is so vague or ambiguous the defendant simply cannot respond; must make this motion before answering;
• A Rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading (that is, a complaint, an answer, etc.); and
• Any party can move to strike (for example, a defendant moves ot strike allegations of fraud or plaintiff moves to strike an affirmative defense).
b. Waivable Defenses Under Rule 12(b)
Some Rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer). (There is a limited “out” to that failure which we will discuss below.) They are:
• A lack of personal jurisdiction;
• Improper venue;
• Improper process (a problem with the papers); and
• Improper service of process.
c. Some Defenses Under Rule 12(b) Can Be Raised Later
Some defenses under Rule 12(b) are not waived even if they are not included in the first response. They are:
• A failure to state a claim and a failure to join an indispensable party. These motions can be made as late as at trial.
• A lack of subject matter jurisdiction may be raised at any time. Remember, a court without SMJ cannot act, so any act done without SMJ is void. Whenever the court determines that it has no SMJ, it must dismiss or remand if the case had been removed from state court.
d. Denial of Rule 12 Motion
Suppose the defendant makes a motion to dismiss under Rule 12 and it is denied. What must she do? Serve her answer no later than 14 days after notice of the denial.
What is an answer?
An answer is a pleading. The defendant does two things in the answer.
a. Respond to the Allegations in the Complaint
In responding to the complaint, the defendant may:
• Admit some or all allegations;
• Deny some or all allegations; and
• State that she has insufficient knowledge to admit or deny some or all of the allegations. This has the effect of a denial, but a party cannot do this if the answer to the allegation is in her control. The failure to deny an allegation is an admission except regarding the amount of damages.
b. Raise Affirmative Defenses
Affirmative defenses inject a new fact into the case that would allow the defendant to win. Classic affirmative defenses are statute of limitations, Statute of Frauds, res judicata, and self-defense. Additionally, all Rule 12(b) defenses can be pleaded as affirmative defenses. If the defendant fails to assert an affirmative defense in the answer, the court may treat it as waived subject to the timing rules in Rule 12.
No Response by Plaintiff Required
When the defendant asserts an affirmative defense, there is no need for the plaintiff to respond, as the allegations in the defendant’s answer are deemed denied.
What is the right to amend?
a. By Plaintiff
The plaintiff has a right to amend her complaint once no later than 21 days after the defendant serves her first Rule 12 response.
b. By Defendant
The defendant has a right to amend his answer once no later than 21 days of serving it.
May Include Omitted Rule 12(b) Waivable Defense in Amendment
If the defendant’s first response was an answer, in which he forgot to raise “waivable defenses” and forgot to raise an affirmative defense, he has a right to amend his answer to include the “waivable defenses” and the affirmative defense.
What is the amendment after “right to amend” has expired?
After the period to amend as of right, the amending party must seek leave of court (or get the written consent of the opposing party). The court will grant leave to amend if “justice so requires.” What factors do courts look to in ruling on this? Length of delay, prejudice to the other party, and futility of amendment.
What is variance?
Variance comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.
What happens if you want to amend after the statute of limitation has run?
a. To Join a Claim Not Originally Asserted
An amended pleading “relates back” if the pleading concerns the same conduct, transaction, or occurrence as the original pleading (that is, the pleading that is being amended). Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.
b. To Change a Defendant
The amendment will relate back if:
• The amendment concerns the same conduct, transaction, or occurrence as the original;
• The defendant had such knowledge of the case such that she will be able to avoid prejudice; and
• The defendant knew or should have known that, but for a mistake, she would have been named originally.
The knowledge referenced in the last two points must have come within the period for service of process (90 days after the filing of the complaint). And, this provision applies when the plaintiff sued the wrong defendant first, but the right defendant knew about it.
What are supplemental pleadings?
Supplemental pleadings set forth things that happened after the pleadings were filed. There is no right to file a supplemental pleading. You must make a motion; whether that motion is granted is within the discretion of the trial court.
What is the rule 11 signature requirment?
Rule 11 applies to all papers except discovery (which are treated by a different, similar rule). 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 an improper purpose;
• The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
• The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation. In addition, a party makes this certification every time she “presents” a position to the court (for example, when she later advocates a position taken in the document). It is a “continuing certification.”
What are sanctions?
The purpose of sanctions is to deter a repeat of the conduct. If there is a violation, such as an assertion of a baseless claim, sanctions may be imposed against the party, the lawyer, and/or the lawyer’s firm. (As a general rule, a law firm is jointly responsible with its attorney who violates Rule 11.) The court can also raise Rule 11 violations “sua sponte” (on its own motion). The court does this by issuing an order to show cause why sanctions should not be imposed. But before imposing a sanction regardless of who filed the motion, the court must give the sanctioned party an opportunity to be heard.
a. Types of Sanctions
Often, courts impose non-monetary sanctions (such as requiring the lawyer to attend professionalism classes). Monetary sanctions, if imposed, are often paid to court, not to the other party.
b. Safe Harbor Provision
If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties 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 she does not do so, then the motion can then be filed with the court.
