Pleadings Flashcards
what is the complaint?
what must it contain?
WHAT IS THE COMPLAINT
it is the grievance that commences the action
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MUST CONTAIN
(1) statement of grounds of subject matter jurisdiction
(2) short and plain statement of the claim showing that the P is entitled to relief, plead with sufficient facts to support a plausible claim such that the judge, using her own experience and common sense, could determine plausibility.
(3) demand for relief sought [damages, injunction etc.]
[need not include grounds for PJ or venue]
what cases have special pleading requirements and what are they?
Fraud, mistake, and special damages must be pleaded with more detail; that is, with particularity or specificity.
how does rule 12 require D to respond to the complaint?
what happens if D does not respond the way the rule requires?
Rule 12 requires the defendant to respond in one of two ways: (1) by motion or (2) by answer.
D must respond within 21 days of being served with process [unless he waived service, in which he has 60 days from when P mailed the waiver form to respond] to avoid default
what are the rule 12 motions and how to categorize them
(1) motions addressing issues of form
– 12(e) motion for more definite statement
Used when the complaint is so vague or ambiguous the D cannot respond [must make motion before answer]
– 12(f) motion to strike
asks court to remove redundant or immaterial things from pleading
any party can move to strike
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(2) waivable defenses - 12 B motions or answers [defenses are waived if not put into first rule 12 motion or answer unless D’s first response was an answer, and he forgot to raise any affirmative defense, and he amends his answer to include the waivable defenses and affirmative defenses in the period of amendment…. but if his first motion was a 12b motion and he fails to assert these claims, he waives them]
3Ps and a V
(1) lack of personal jurisdiction
(2) improper venue [notice that this does not encompass “transfers from proper venue” situations]
(3) improper process [problem with papers]
(4) improper service of process
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(3) defenses that can be raised later [i.e. after first response]/are not waived if not included in first response:
Can be made as late as at trial:
(1) failure to state a claim
(2) failure to join indispensable party
lack of subject matter jurisdiction can be raised any time
if D’s rule 12 motion is denied, what must she do?
Serve her answer no later than 14 days after notice of the denial.
what must an answer do?
(1) respond to allegations in the complaint by …
(a) admit some or all allegations
(b) deny some or all allegations
and/or
(c) state that she has insufficient knowledge to admit or deny some or all allegations
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(2) raise affirmative defenses
Ex: SOL, SoF, Res judicata, self-defense
all 12B defenses can be pleaded as affirmative defenses
when D asserts affirmative defenses, what must P do?
When the defendant asserts an affirmative defense, there is no need for the plaintiff to respond, as the allegations in the defen- dant’s answer are deemed denied.
what happens if D fails to assert affirmative defense in the answer?
If the defendant fails to assert an affirmative defense in the answer [one of the rule 12 ones], the court may treat it as waived subject to the timing rules in Rule 12.
what are the four fact patterns of amended pleadings and the rules associated with them
1 RIGHT TO AMEND IN GENERAL
Plaintiff: The plaintiff has a right to amend her complaint ONCE no later than 21 days after the defendant serves her first Rule 12 response.
Defendant: The defendant has a right to amend his answer once no later than 21 days of serving it.
additional rule for Ds:
If the defendant’s first response was an answer, in which he forgot to raise “waivable defenses” and forgot to raise an affirmative defense, he has a right to amend his answer to include the “waivable defenses” and the affirmative defense.
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amending party must seek leave of court, or get written consent of opposing party
court will grant leave to amend if “justice so requires.” whether justice so requires will depend on
(1) length of delay
(2) prejudice to the other party
(3) futility of amendment
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Variance comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party intro- ducing the evidence may move to amend the complaint to conform to the evidence.
a party may move at any time, even after judgment, to amend the pleadings to conform them to the evidence and to raise the unleaded issue
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(a) to join a claim not originally asserted
To join a claim not originally asserted past the SOL, it must “relate back” to the original pleading such that it concerns the same conduct, transaction, or occurrence as the original pleading
.
.
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(b) to change a defendant
The amendment must still relate back if you amend pleading to change a defendant. To relate back, the amendment must:
(1) The amendment concerns the same conduct, transaction, or oc- currence as the original;
(2) The defendant had such knowledge of the case such that she will be able to avoid prejudice;
AND
(3) The defendant knew or should have known that, but for a mistake, she would have been named originally
The knowledge referenced in the last two points must have come within the period for service of process (90 days after the filing of the complaint) - idea is that you name the wrong D on the suit but serve the right person. And, this provision applies when the plaintiff sued the wrong defendant first, but the right defendant knew about it.
what are supplemental pleadings and when can they be filed
Supplemental pleadings set forth matters/events that happened AFTER the pleadings were filed. [i.e. you want to add a claim that the D did something else to you AFTER you filed your original case]
There is no right to file a supplemental pleading. You must make a motion; whether that motion is granted is within the discretion of the trial court.
what is the rule 11 signature requirement - what does it apply to and what is required
Rule 11 applies to all papers except discovery (which are treated by a different, similar rule).
When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
- The paper is not for an improper purpose;
- The legal contentions are warranted by law or a nonfrivolous argument for a law change;
and
- The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.
In addition, a party makes this certification every time she “presents” a position to the court (for example, when she later advocates a position taken in the document). It is a “continuing certification.”
what are sanctions and what is their purpose
The purpose of sanctions is to deter a repeat of the conduct.
If there is a violation, such as an assertion of a baseless claim, sanctions may be imposed against the party, the lawyer, and/or the lawyer’s firm.
As a general rule, a law firm is jointly responsible with its attorney who violates Rule 11.)
may judge raise sanctions himself?
yes judge can raise rule 11 violations sua sponte by issuing an order to show cause why sanctions should NOT be imposed
before imposing sanctions, court must do what?
But before imposing a sanction regardless of who filed the motion, the court must give the sanctioned party an opportunity to be heard.
types of sanctions
Often, courts impose non-monetary sanctions (such as requiring the lawyer to attend professionalism classes).
Monetary sanctions, if imposed, are often paid to court, not to the other party.
