Pleadings Flashcards
When does a case starts?
It starts when the plaintiff files the pleading, called complaint.
what is a pleading?
Pleadings are the documents in which the parties set forth their claims and their defenses. Historically the courts have adopted the theory of Notice Pleading = idea is that you should not have to put a lot of detail into your pleading. The goal of the pleading is to put the other side on notice.
Meeting the pleading rule before v. now?
Meeting the pleading rules before has not been very difficult. However, the Supreme Court has changed that in Twombly and in Iqbal. Now the Supreme court expects greater detail in the plaintiff’s pleading.
Rule 8
General Rules of Pleading
1. a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; = statement of SMJ (note: federal courts con only hear certain cases).
2. a short and plain statement of the claim showing that the pleader is entitled to relief; and
3. a demand for the relief sought, which may include relief in the alternative or different types of relief.
Court’s opinion in Iqbal
- the court in reading the complaint ignores conclusions of law and focuses only on the allegations of facts,
- those facts must support a plausible claim not just a possible claim.
- To determine plausibility the judge uses its own experience and common sense (very subjective).
Which is more likely?
- If liability is less likely than no liability, then claim is not plausible.
- If liability equals likelihood of no liability, then the claim is not plausible.
- If liability is a greater likelihood than no liability, then the claim is plausible.
Burden of pleading
Plaintiff: the complaint must address the issue, and if P fails to do so, the complaint can be dismissed for failure to state a claim.
Defendant: must raise the issue as an affirmative defense, and if D fails to do so, D will be barred from proving that defense at trial.
Rule 9
9(b) fraud or mistake
- Kearns v. Ford Motor Company (2009): rule 9(b) contains special pleading requirements, and how it can serve as a basis for a motion to dismiss. Not a plausibility case but he has not complied with the pleading requirements. Court required a who, what, where, when and how. Here the court is asking for more because FRAUD is a very severe accusation.
9(g) special damages
Defendant’s response:
-answer R 8(b) and R 8(c)
-motion R 12(b)
-default R 55
R 12(b)
R 12(g)/12(h)
12(b) give us 7 defenses. They may be asserted in a motion to dismiss or in the answer as affirmative defenses.
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 upon which relief can be granted
7. Failure to join a party under rule 19.
12(g) and 12(h) are very important because they tell us when these defenses are waived and when they must be raise.
The initial response Rule
defense 2 tru 5, in R 12(b) are waived if not raised in the defendant’s initial response, regardless of whether the initial response is a pre-answer motion or an answer.
THE ANSWER
Factual allegation
- Admissions
- Denials
- Deemed denials (lack of knowledge of info)
Defenses
-Affirmative defenses 8(c) (statute of limitation, waive, release, contributory negligence, ect.)
-Special defenses (12(b), (e), (f)
Claims (D can introduce claims of their own)
-Counterclaims FRCP 13(a) and (b)
-Crossclaims FRCP 13(g) (P v. D1, D2, D3)
FRCP 55
default judgment: When a party has failed to plead or defend, and that failure is shown by affidavit, the clerk must enter the party’s default.
What does Rule 15 allow to do in general?
To amend and supplement a pleading.
why may a party amend a pleading?
Include a cause of action, fixing a problem in a complaint, fixing an answer, substituting parties, add a party, drop a party, add counterclaim, add crossclaims.
