Pleadings Flashcards
Is proof of service sufficient for insufficient service of process?
A plaintiff must provide the defendant with adequate notice of a lawsuit through service of process—i.e., delivery of the summons and complaint. Service of process can be made by any person who is at least 18 years old and not a party to the suit.
The process server (other than a U.S. or deputy marshal) must then file a proof-of-service affidavit if service was made in the U.S. and not waived by the defendant. However, failure to prove service of process does not affect the validity of the service. As a result, the court should deny the defendant’s motion to dismiss for insufficient service of process.
What must be included in an answer?
An answer must include (1) admissions and denials, (2) motions that have not been waived, (3) affirmative defenses, and (4) compulsory counterclaims. Otherwise, these items will be waived.
Usually, if a compulsory counterclaim is not raised it is waived. In what circumstance is such counterclaim not waived?
But when an action is dismissed before a defendant’s answer is filed, any counterclaims that would have been compulsory in an answer are not waived. That is because the defendant never had the opportunity to raise, and therefore could not waive, those counterclaims.
When must a defendant respond to an amended pleading?
generally must be made by the later of the following deadlines:
* The time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process
* 14 days after the service of the amended pleading
However, the court may shorten or extend these deadlines, and the response must be made according to the court-ordered deadline.
What is one exception to rule of an answer that “failure to deny an allegation results in such allegation being admitted and conclusively established”?
Amount of damages.
he failure to deny these allegations in an answer does not deem them admitted and conclusively established.
When can a party secure a jury trial?
A party may secure a jury trial on any triable issue by (1) serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served and (2) filing the jury trial demand with the court within a reasonable time after service of the demand.
What are complaint requirements?
- short and plain statement establishing SMJx
- short and plain statement establishing entitlement to relief.
- demand for judgment for relief sought by pleader.
When can a party amend a pleading?
- once as of right within 21 days if no response pleading required.
- if response pleading required, within 21 days of service of response pleading or within 21 days of being served with a Rule 12(b) motion, whichever is earlier.
Court should freely give leave to amend a pleading when justice so requires.
What is a compulsory counterclaim?
party is required to state claim if it 1. arises out of the same transaction/occurrence and 2. the claim does not require adding another party whom the court cannot get jx.
If a party does not file the counterclaim, they WAIVE the counterclaim (use it or lose it!)
When must a D respond to a complaint?
Within 21 days.
What are the two ways a suit can be dismissed and what are the consequences of each?
Voluntary dismissal: when plaintiff moves to dismiss the suit
- usually dismissed WITHOUT prejudice.
Involuntary dismissal: when the defendant moves to dismiss the suit
- can occur when P fails to comply with a court order/rule or failed to prosecute the action.
An involuntary dismissal operates as an adjudication on the merits unless the court orders otherwise. Therefore, case is dismissed WITH prejudice.
When must a plaintiff respond to a defendant’s answer?
In the rare instance that the court orders a plaintiff to do so. If this occurs, the plaintiff is to respond with a REPLY.
If P does NOT have to reply, the plaintiff is deemed to deny any allegation in the defendant’s answer.
If Plaintiff HAS to reply, any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff.
Every pleading must be signed. What does this signature certify? What happens if the party violates the signature’s certification?
Signature certifies:
1 document is presented for proper purpose—not to harass, cause unnecessary delay, or needlessly increase cost of litigation
2 claims, defenses & legal contentions are warranted by existing law or by nonfrivolous argument for revising or establishing law
3 factual assertions have or will have evidentiary support and
4 factual denials are warranted by evidence or reasonably based on belief/lack of information
If party violates one of the above, a court can impose sanctions.
How are sanctions initiated?
Sanction proceedings can be initiated in two ways:
* by a party’s motion – which requires the party to serve the motion on the alleged violator but refrain from filing it for 21 days after serving it to allow any violation to be corrected (i.e., safe-harbor rule) or
* on the court’s own initiative (i.e., sua sponte) – which REQUIRES the judge to issue an order to show cause to the alleged violator.
When will an amended complaint “relate back” to the date of the OG complaint?
When:
(1) the same occurrence is at issue,
(2) the new party received notice of the suit within 90 days after the original complaint was filed, AND
(3) the new party knew or should have known that it would have been sued but for a mistake about its identity.
