Pleadings

Question 1

Which rule governs the general rules of pleadings?

Answer 1

Rule 8

Question 2

Rule 8(a)(2)

Answer 2

A short and plain statement of the claim showing that the pleader is entitled to relief

Question 3

Rule 12(b)

Answer 3

Defenses by motion
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim on which relief can be granted
7. Failure to join a party under rule 19

Question 4

Which defenses are waived if not included in a responsive pleading?

Answer 4

12(b) (2)-(5)

2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process

Question 5

What rule governs amending and supplementing pleadings

Answer 5

Rule 15

Question 6

15(c)

Answer 6

Relation back of amendments

Question 7

When can an amendment relate back?

Answer 7

A. The law that provides the applicable SOL allows relation back
B. Asserts a claim/defense that arose out of the conduct in the 1st pleading
C. Changes the party, B is satisfied, and the party is served in 90 days - MUST be as result of mistaken identity in pleading

Question 8

Which motion is not waived?

Answer 8

12(b)(1) Subject matter jurisdiction can come up all the way through appeals

Question 9

When are 12(b)(6-7) waived?

Answer 9

Failure to state a claim and failure to join a party are both waived after judgment, may not be brought up in appeals

Question 10

What does rule 11 control?

Answer 10

Every pleading must be signed signifying that to the best of the person’s knowledge, information, and belief, the pleading was written after a reasonable inquiry under the circumstances.

Question 11

How are Rule 11 sanctions governed?

Answer 11

First the moving party must notify the other party of the violation and then give them 21 days to correct the error prior to submitting the motion to the court. If the offending party does not make the correction, the court may impose appropriate sanctions (unlikely to be monetary)

Question 12

How did Twombly and Iqbal change pleading?

Answer 12

Introduced and expanded the concept of “fact” pleading and the “plausibility standard.”

Question 13

What is “fact” pleading?

Answer 13

The court must overlook or omit any pleadings of “legal conclusions” when determining if the pleading satisfies Rule 8(a).

Question 14

What is the “plausibility standard”

Answer 14

A judge must use their experience and common sense to determine if the pleading is plausible (not conceivable and not probable)

Question 15

What argument can be made to “lower the bar” after the Twiqbal rulings

Answer 15

Using Erickson and Swanson we may ask the question “How high is the standard” and make the determination based on the likely burden of discovery.

Question 16

Rule 9(b) and 9(g)

Answer 16

For issues of fraud or mistake, or when there are special damages, the pleading must be made with “particularity” *expresio unius est exlusio alterius”

Question 17

Rule 8(d)

Answer 17

McCormick v. Kopmann pled that one party was negligent and the the other over served. Permits a party to plead alternative statements of claim of defense - regardless of consistency. The pleading is sufficient if any of the claims or defenses are sufficient

Question 18

What rule deals with affirmative defenses and what are some examples?

Answer 18

8(c) - contr. negligence, estoppel, fraud, illegality, etc.

Question 19

What options are available in initial response ?

Answer 19

12(b) motions, answer admitting or denying (including affirmative defenses) or both motions and the answer

Question 20

What options are available in response to allegations?

Answer 20

Admit (including with affirmative defenses), deny (fairly on the substance of the claim), and claim that there is insufficient information to admit or deny. Resist pleading contrary facts. An allegation is admitted if the allegation is not denied.