Pleadings

Question 1

Complaint

Answer 1

-Filing a complaint commences an action

Question 2

Content of a Complaint

Answer 2

• Complaint must contain:
  (1) a short statement for grounds for SMJ;
  (2) a short & plain statement of the claim showing that P is entitled to relief; and
  (3) a demand for relief sought
• P need not allege grounds for PJ/Venue

Question 3

Details Required in Complaint

Answer 3

• In stating the claim, P must plead sufficient facts to support a plausible claim
• D can make a R.12(b)(6) MTD for FTSC

Question 4

Special Pleading Requirements for Certain Cases

Answer 4

Fraud, mistake, & special damages must be pleaded with more detail, with particularity/specificity

Question 5

D’s Response

Answer 5

• R.12 requires D to respond in one of two ways:
  (1) by motion or
  (2) answer
• To avoid default, D must do one of these no later than 21 days after SOP
• If D waived SOP, D has 60 days from when P mailed the waiver form to respond

Question 6

Motions (R.12)

Answer 6

• Motions are not pleadings, they are requests for a CO

Question 7

Motions for Addressing Issues of Form

Answer 7

• R.12(e): a motion for a more definite statement is used when the complaint is vague/ambiguous the D cannot respond; must make this motion b/f answering
• R.12(f): motion is strike asks the ct to remove redundant/immaterial things from a pleading (complaint, answer, etc); and
• Any party can more to strike (ex. D moves to strike allegation of fraud or P moves to strike an AD)

Question 8

Waivable Defenses Under R.12(b)

Answer 8

• Some R.12(b) defenses are waived if not put in the first R.12 response (motion/answer) “3Ps & a V”
  -They are:
  (1) Lack of PJ
  (2) Improper venue
  (3) Insufficient process (issue w papers)
  (4) Insufficient SOP

Question 9

R.12(b) Defenses that can be Raised Later

Answer 9

• Some R.12(b) defenses are not waived even if not put in the first response
• They are:
  (1) a FTSC & a failure to join an indispensable party. These motions can be made as late as at trial
  (2) A lack of SMJ may be raised at any time. A ct w/o SMJ cannot act, any act is void.
• When a ct determines it has no SMJ, it must dismiss/remand if case was removed from state ct

Question 10

Denial of R.12 MTD

Answer 10

• If D makes a motion to dismiss under R.12 and is denied, D must serve an answer no later than 14 days after notice of denial

Question 11

The Answer

Answer 11

• Answer is a pleading
• D does 2 things in the answer:
  (1) Respond to allegations in the complaint
  (2) Raise affirmative defenses

Question 12

Respond to Allegations in the Complaint

Answer 12

Admit some/all allegations
- Deny some/all allegations
- State that she has insufficient knowledge to admit/deny some/all the allegations. This has an effect of a denial, but a party cannot do this if the answer to the allegation is in her control
- Failure to deny an allegation is an admission except regarding the amount in damages

Question 13

Raise Affirmative Defenses

Answer 13

• ADs inject a new fact into the case that would allow D to win
• SOL, SOF, res judicata, & self defense are classic ADs
• All R.12(b) defenses can be pleaded as ADs
• If D fails to assert an AD in the answer, ct may treat is as waived, subject to timing rules in R.12
• When D asserts an AD, there is no need for P to respond

Question 14

Amended Pleadings – 4 Fact Patterns

Answer 14

• Right to amend: P has a right to amend her complaint once no later than 21 days after D serves first R.12 response
• D has a right to amend answer once no later than 21 days after serving it
• If D’s first response was an answer & he forgot to raise waivable defenses and an AD, he has a right to amend his answer to include them

Question 15

Amendment after Right to Amend has Passed

Answer 15

• After the period to amend as of right, the amending party must seek leave of ct (or get written consent of the OP)
• Ct will grant leave to amend if justice so requires.
• Ct looks at length of delay, prejudice to other party, & futility of amendment

Question 16

Variance

Answer 16

• Comes up when evidence at trail does not match what was pleaded
• If other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to evidence

Question 17

Amendment After SOL has Run “Relation Back”

Answer 17

• To join a claim not originally asserted, an amended pleading “relates back” if the pleading concerns the same conduct, T/O as the original pleading
• Relation back means you treat the amended pleading as though it was filed when the original pleading was filed, so it can avoid SOL issue

Question 18

“Relation BacK” to Change a D

Answer 18

• Amendment will relate back if it concerns the same conduct, T/O as original pleading;
• The D had knowledge of the case such that she will be able to avoid prejudice; and
• D knew/should have know that, but for a mistake, she would have been named originally
• The knowledge must have come within the period for SOP (90 days after filing the complaint)
• This provision applies when P sued the wrong D first, but the right D knew about it

Question 19

Supplemental Pleadings

Answer 19

• Set forth things that happened after pleadings were filed
• No right to file a supplemental pleading
• You must make a motion

Question 20

Rule 11 Signature Requirement

Answer 20

• Applies to all papers except discovery
• When the lawyer/pro se party signs docs, she certifies that to the best of her knowledge and belief, after reasonable inquiry
  (1) the paper is not for an improper purpose
  (2) the legal contentions are warranted by law or a non frivolous argument for a law change; and
  (3) the factual contentions & denials of factual contentions have evidentiary support or are likely to after further investigation
• A party makes this certification every time she “presents” a position to the ct (ex. when she later advocates a position to the ct). It is a continuing certification