Pleadings Flashcards
Plaintiff’s Complaint
The complaint must contain:
1. A statement of grounds of SMJ
2. A short and plain statement of the claim showing P is entitled to relief
-Must lead sufficient facts to support a plausible claim
-Rule 12(b)(6) motion to dismiss for failure to state a claim
-Fraud claim must be pled with special particularity and specificity
3. A demand for relief sought
Defendant’s Response
Must respond within 21 days of service (60 days if service waived):
1. By Rule 12 Motion; or
-Rule 12(b) Motion to Dismiss
-Rule 12(e) Motion for More Definite Statement (complaint is too vague)
-Rule 12(f) Motion to Strike (remove redundant/immaterial claims)
2. By Answer
Rule 12(b) Motion to Dismiss
Some Rule 12(b) defenses are waivable if not used in first Motion/Answer:
-Lack of PJ
-Improper venue
-Improper process (problem with the papers)
-Improper service of process
Other Rule 12(b) defenses can be raised later regardless:
-Failure to state a claim (at trial)
-Failure to join an indispensable party (at triaL)
-Lack of SMJ (anytime)
Denial of Rule 12 Motion
D must answer within 14 days after his notice of denial
The Answer
- Respond to the allegations in the complaint
-Admit some or all allegations
-Deny some or all allegations (failure to deny = admission, except regarding amount of damages)
-State that D has insufficient knowledge to admit or deny some or all allegations (effect of a denial) - Raise affirmative defenses
-Statute of limitations, statute of frauds, res judicata, self-defense, and Rule 12(b) defenses
-Failure to assert affirmative defense = waiver unless one of the non-time gated 12(b) defenses
-P does not need to respond to affirmative defenses
Amended pleadings
By Plaintiff
-Can amend complaint once within 21 days after D serves Rule 12 response
By Defendant
-Can amend answer once within 21 days of serving it
-Can include omitted affirmative defenses
After right to amend expires, the court will only grant leave to amend if “justice so requires”
-Consider length of delay, prejudice to other party, futility of amendment
Variance
When the evidence at trial does not match what was pleaded
-If opposing party fails to object, the party introducing the evidence may move to amend the complaint to conform to the trial evidence
Relates back
An amended pleading “relates back” when the amended pleading concerns the same conduct, transaction, or occurrence as the original pleading
-Treat the amended pleading as if it was file when the original pleading was to avoid a statute of limitations issue
-i.e., Plaintiff sues the wrong defendant and the right defendant knew about it within 90 days of the complaint
-Comes up with business forms (Inc. vs. Ltd.)
Supplemental pleading
Set forth things that occur after the pleadings were filed
-Must move for supplemental pleading and within the court’s discretion to grant or deny
Rule 11 signature
When a lawyer or pro set party signs a non-discovery document, he certifies that to the best of his knowledge and belief after reasonable inquiry:
-Document is not for an improper purpose
-Legal contentions are not frivolous
-Factual contentions are supported by evidence or will be after further investigation
*Continuing certification: every time he presents a position to the court
Sanctions
Violating Rule 11 can result in sanctions for the party, the lawyer, and/or the lawyer’s firm (law firm is jointly responsible with lawyer for Rule 11 violations)
-By motion or sua sponte
-Sanctioned party must first have an opportunity to be heard
-Monetary sanctions paid to the court
-Non-monetary sanctions such as PR classes
Safe harbor provision
The party in violation of Rule 11 has 21 days to fix the problem and avoid sanctions
