Pleadings Flashcards
What is req’d of the complaint?
Must contain:
- statement re grounds of subject matter jdx (NOT PJ or venue)
- short and plain statement of the claim showing that P is entitled to relief
- a demand for relief sought
re claim: must plead sufficient facts to support a plausible claim (D challenges this thru Rule 12b6, dismissal for failure to state a claim
What types of claims must be plead with more detail?
Fraud, mistake, and special damages claims must be plead with particularity or specificity.
What must D do once pleading is filed?
D must filed either a (a) motion or (b) answer no later than 21 days after being served with process. If D waived service, then has 60 days.
What motions re issues of form may D file in response to pleading under Rule 12?
Motions re form:
- 12(e) motion for more definite statement (complaint so vague/ambiguous D cannot respond)
- 12(f) motion to strike - asks court to move redundant/immaterial things from pleading
Which Rule 12 defenses are waivable, i.e. will be waived if D fails to put them in first response to pleadings? Which defenses are NOT waived?
Waived:
- lack of PJ
- improper venue
- improper process
- improper service of process
Not waived:
- failure to state a claim (can be made as late as trial)
- failure to join indispensable party (can be made as late as trial)
- lack of SMJ - raised at any time
What happens if D motions to dismiss and court denies?
D must serve answer no later than 14 days after notice of denial.
What does the D include in the answer?
(a) response to allegations by either admitting, denying, or saying they have insufficient knowledge to do so
(b) raise affirmative defenses - can include 12b ones that weren’t waived
Note: no need for P to respond to this, assumed allegations are denied
What are rules wrt right to amend pleadings/answer?
- P has right to amend complaint ONLY once no later than 21 days after D serves her first R12 response
- D has right to amend answer ONCE no later than 21 days after serving it (can amend to include waivable defenses)
Note: if too late, party can seek leave of court to amend, court may grant if justice requires
What is variance? What happens?
Variance = evidence comes up at trial inconsistent with complaint. Party may move to amend complaint to match.
What happens when P tries to amend pleading by adding claim after SoL on the claim has run?
If claim “relates back” to original claim, i.e. if it concerns the same conduct, transaction, or occurence, then may use the date of original pleading, i.e. can avoid SoL problems.
What happens when P tries to add D to claim after SoL has run wrt that D?
P may add D if conduct “relates back,” here this means:
- amendment concerns same conduct, transaction, or occurence as original pleading
- D had knowledge of the case such that they will avoid prejudice
- D knew or should have known that but for mistake she would have been named originally
knowledge in last two must have been at least within 90 days after filing of complaint
What is a supplemental pleading? When can you file?
Supplemental pleadings set forth things that happened after the initial pleadings. No right to file one, must motion court and only can do so with approval.
What does Rule 11 require?
Rule 11 signature req applies to all papers NOT under discovery rules. Under the rule, atty’s/pro se lits must sign papers for the court that certifies:
- to the best of their knowledge & belief after reasonable inquiry
- paper is not for an improper purpose
- legal contentions are warranted by law or a nonfrivolous argument for change in law
- AND, factual contentions and denials have evidentiary support or are likely to after further investigation
*note when party later advocates positions in court, this is continued certification
What is penalty for a Rule 11 violation?
Sanctions - to atty, firm, or party.
(a) Court can do this sua sponte by order to show cause why sanctions should be imposed. Court MUST give party to be sanctioned an opportunity to be heard.
(b) opposing party can serve motion re sanctions to other party - NOT file with court - then other party has 21 days safe harbor to try to fix issue, after that motion can be filed with court if not fixed.
