Pleadings Flashcards
rule 8a
a pleading must contain a short and concise statement of the grounds of the courts jurisdiction, of the claim showing that the pleader is entitled to relief, and a demand for the relief sought
rule 9 special matters
if Fraud or Mistake.
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.
special damages must be specifically stated
rule 12 b (could be filed before answer)
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19
2-5 first motion
6 7 anytime before trial verdict
1 anytime
rule 8 test review Iqbal and twombly
can’t have conclusory and needs supported well pleaded facts
do facts claim plausible claim for relief
must state circumstances actions events must be accepted as true
wrong if recited elements say it happened
plausible doesn’t need to be probable
rule 8 admissions and denials
party can admit deny or with out knowledge
Denials must respond to the allegation.
* A general denial of all allegations must be made in good faith.
* Specific denials must either:
* Deny the specific allegations;
* OR generally deny all except those specifically admitted
* Partial denials permitted
* A lack of knowledge acts as a denial
* Failing to deny, other than on damages, is treated as an admission unless a
response is not required.
rule 8 c affirmative defenses
In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including:
accord and satisfaction; arbitration and award; assumption of risk. etc
7a pleadings
Rule 7(a) Pleadings.
Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
rule 12 f motion to strike
The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own;
OR (2) on motion made by a party either before responding to the pleading or,
if a response is not allowed, within 21 days after being served with the
pleading.
rule 12 emotion for more definite statement
Motion for More Definite Statement
* Pleading is vague or ambiguous
* Made before filing a response
* If granted, pleader has 14 days to amend or the court may strike or take
other action
rule 12 c
motion for judgment on pleadings
rule 12 d matters outside the pleadings
– Result of Presenting Matters Outside the Pleadings.
* 12(b)(6)(failure to state a claim) & 12(c)(judgment on pleadings)
* Court will treat as a motion for summary judgment under Rule 56
rule 12g- i
review later
rule 54 default judgment
capped to pleadings
rule 12 a time
Rule 12(a) Time to Serve a Responsive Pleading
* Amended Complaint
* 14 days after order requiring or granting leave for amendment
* Answer
* 21 days after service;
* 60 days after the request for waiver was sent if waived under Rule 4(d);
* 60 days for U.S. or its officers or employees 12(a)(2)-(3)
* 90 days if request for waiver sent outside U.S.
* 14 days after denial or deferral of 12(b)(6) motion to dismiss
* 14 days after amended complaint, if 12(b)(6) motion granted
* Counterclaim, cross claim, reply to an answer
* 21 days after service
* For a reply, 21 days after service of order to reply, unless specified
rule 15 a amendments before trial
Amendments are permitted:
* (a)(1) Once, as a matter of course:
* Within 21 days of serving the pleading;
* 21 days after a responsive pleading is served;
* OR 21 days after a Rule 12 motion is served;
* OR (a)(2) With leave of Court;
* If justice so requires;
* Reasons to deny: (a) undue delay; (b) bad faith or dilatory motive;
(c) repeated failures to cure; (d) undue prejudice; (e) futility.
* OR (a)(2) With written consent from the other party.
15 b during after trial
Outside Pleadings Objection
* Court may freely permit amendment and grant a continuance to meet the
evidence.
* Aids in presenting the merits; and
* Will not prejudice the objecting party’s action or defense
* Issue tried by Consent
* Party may move at any time to amend the pleadings to conform them to
the evidence.
* Failure to amend does not affect the judgment.
rule 15 c relating back
Relation Back of Amendments
* Amendments can relate to the original pleading if:
* Existing Party:
* It arose out of the same conduct, transaction or occurrence in the
original pleading
* New Party:
* It arose out of the same conduct, transaction or occurrence in the
original pleading;
* AND Within 90 days (Rule 4(m)):
* They received notice* of the action;
* AND They will not be prejudiced;
* AND They knew or should have know about the action but for a
mistake in identity
rule 15 d supplemental pleading
Rule 15(d) – Supplemental Pleadings
* The Court may, on just terms, permit a supplemental pleading.
* Requires:
* Motion and reasonable notice;
* Alleges a transaction, occurrence or event that happened after the
original pleading
rull 11 a signature
Rule 11(a) – Signature
* Every pleading, written motion, and other paper must be signed by at least
one attorney of record in the attorney’s name-or by the party personally if
unrepresented. . .
* Unless a rule or statute specifically states otherwise, a pleading need not be
verified or accompanied by an affidavit.
* The court must strike an unsigned paper unless the omission is promptly
corrected after being called to the attorney’s or party’s attention.
rule 11 b
Presenting a pleading, motion or other paper;
* Requires certification based on:
* The best of the person’s knowledge information and belief;
* Reasonable under the circumstances that it;
1) Has no improper purpose;
2) Is supported by existing law, argues for changing law; or for new law;
3) Has evidentiary support, gathered by reasonable due diligence;
4) If a denial of fact, is warranted by the evidence or based on a
reasonable belief or lack of information.
