Pleadings Flashcards
Complaint Requirements (3)
1) A statement of grounds of SUBJECT MATTER JURISDICTION
2) A short and plain statement of the CLAIM, showing entitled to relief
3) A demand for RELIEF sought
Complaint Standard (Twombly and Iqbal)
P must allege facts to determine a PLAUSIBLE claim
What three matters must be pleaded with even more detail – with PARTICULARITY AND SPECIFICITY? (3)
- Fraud
- Mistake
- Special Damages
Rule 12 requires D to respond in one of what two ways?
- By motion (12(b)); or
- By answer (12(a))
To avoid default, how long does D have to respond?
21 days after being served with process
How long does D have to respond if D WAIVED process?
60 days from when P mailed the waiver form
What are the 7 12(b) Motions?
- Lack of SMJ
- Lack of PJ
- Improper Venue
- Improper process (problem with papers)
- Improper Service of Process
- Failure to state a claim
- Failure to join indispensable party
12(b) Motion Mnemonic
Lily Licks Iguana’s in Indian Fuzzy Frog Joggers
Where can the defenses be made?
Either Motion OR Answer
If you make a 12(b) Motion, can you add rule 12 defenses in your answer?
Absolutely positively the fuck not
Which defenses are waivable (4)?
- Lack of PJ
- Improper Venue
- Improper process (problem with papers)
- Improper Service of Process
MUST BE IN THE FIRST RESPONSE OR ELSE THEY ARE WAIVED
How late can D raise a failure to state a claim or a failure to join indispensable party?
As late as at trial
Is there any time limit for raising the lack of SMJ?
Fuck no
Suppose D makes a motion to dismiss under Rule 12, and it is denied. What must D do?
Put it in the answer
What two things does D do in the answer?
- Respond to Allegations of complaint
- Raise affirmative Defenses
3 Ways to Respond to Complaint Allegations in an Answer
- Admit
- Deny
- State that you lack sufficient information to admit or deny (treated as denial but CANT use if answer is in your control)
What are the 5 affirmative defenses?
- 12(b) defenses
- Statute of Limitations
- Statute of Frauds
- Res Judicata
- Self-Defense
12(b) defenses (2-5) ARE waived if not made
The rest MAY be waived
If D asserts an affirmative defense, must P respond to the answer?
NO – deemed denied
Plaintiffs Right to Amend
Plaintiff has a right to amend complaint ONCE no later than 21 days after serving complaint
Defendant’s Right to Amend
Defendant has a right to amend answer ONCE no later than 21 days of serving answer
If D has a right to amend answer, can the D now assert the “waivable defenses” and affirmative defenses?
Yes, but ONLY if a 12(b) motion wasn’t made
If there is no right to amend what can a party do to amend?
Must seek leave of court and will only be granted if “justice so requires.”
