Pleadings

Question 1

Complaint Requirements (3)

Answer 1

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

Question 2

Complaint Standard (Twombly and Iqbal)

Answer 2

P must allege facts to determine a PLAUSIBLE claim

Question 3

What three matters must be pleaded with even more detail – with PARTICULARITY AND SPECIFICITY? (3)

Answer 3

1. Fraud
2. Mistake
3. Special Damages

Question 4

Rule 12 requires D to respond in one of what two ways?

Answer 4

1. By motion (12(b)); or
2. By answer (12(a))

Question 5

To avoid default, how long does D have to respond?

Answer 5

21 days after being served with process

Question 6

How long does D have to respond if D WAIVED process?

Answer 6

60 days from when P mailed the waiver form

Question 7

What are the 7 12(b) Motions?

Answer 7

1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Improper process (problem with papers)
5. Improper Service of Process
6. Failure to state a claim
7. Failure to join indispensable party

Question 8

12(b) Motion Mnemonic

Answer 8

Lily Licks Iguana’s in Indian Fuzzy Frog Joggers

Question 9

Where can the defenses be made?

Answer 9

Either Motion OR Answer

Question 10

If you make a 12(b) Motion, can you add rule 12 defenses in your answer?

Answer 10

Absolutely positively the fuck not

Question 11

Which defenses are waivable (4)?

Answer 11

2. Lack of PJ
3. Improper Venue
4. Improper process (problem with papers)
5. Improper Service of Process

MUST BE IN THE FIRST RESPONSE OR ELSE THEY ARE WAIVED

Question 12

How late can D raise a failure to state a claim or a failure to join indispensable party?

Answer 12

As late as at trial

Question 13

Is there any time limit for raising the lack of SMJ?

Answer 13

Fuck no

Question 14

Suppose D makes a motion to dismiss under Rule 12, and it is denied. What must D do?

Answer 14

Put it in the answer

Question 15

What two things does D do in the answer?

Answer 15

1. Respond to Allegations of complaint
2. Raise affirmative Defenses

Question 16

3 Ways to Respond to Complaint Allegations in an Answer

Answer 16

1. Admit
2. Deny
3. State that you lack sufficient information to admit or deny (treated as denial but CANT use if answer is in your control)

Question 17

What are the 5 affirmative defenses?

Answer 17

1. 12(b) defenses
2. Statute of Limitations
3. Statute of Frauds
4. Res Judicata
5. Self-Defense

12(b) defenses (2-5) ARE waived if not made
The rest MAY be waived

Question 18

If D asserts an affirmative defense, must P respond to the answer?

Answer 18

NO – deemed denied

Question 19

Plaintiffs Right to Amend

Answer 19

Plaintiff has a right to amend complaint ONCE no later than 21 days after serving complaint

Question 20

Defendant’s Right to Amend

Answer 20

Defendant has a right to amend answer ONCE no later than 21 days of serving answer

Question 21

If D has a right to amend answer, can the D now assert the “waivable defenses” and affirmative defenses?

Answer 21

Yes, but ONLY if a 12(b) motion wasn’t made

Question 22

If there is no right to amend what can a party do to amend?

Answer 22

Must seek leave of court and will only be granted if “justice so requires.”