Pleadings Flashcards
What is a complaint?
In federal court, the filing of the complaint commences an action.
content of complaint:
must contain:
- grounds of SMJ
- short and plain statement of the claim
- demand for relief
Rule 12 requires defendant to respond in one of two ways:
(1) by motion or
(2) by answer
to avoid default, defendant must respond no later than
21 days after being served with process. If defendant waived service, the defendant has 60 days from when the plaintiff mailed the waiver form to respond.
What are motions (rule 12)
motions are not pleadings, they are requests for a court order
some rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer). They are
- lack of PJ
- improper venue
- improper process; and
- improper service of process.
3 Ps and a V
some defenses under 12(b) are waived even if they are not included in the first response. They are:
- failure to state a claim, failure to join an indispensable party
- lack of SMJ (can be raised anytime)
Suppose defendant makes a motion to dismiss under rule 12 and it is denied. what must she do?
serve answer no later than 14 days after notice of denial.
what is the answer?
an answer is a pleading. The defendant does two things in the answer.
- respond to allegations in complaint
- raise affirmative defenses
supplemental pleadings
supplemental pleadings set forth things that happened after the pleadings were filed. 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.
A pleading may be amended once as a matter of course within 21 days of serving it or, if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or a pre-answer motion.
If a party missed the 21-day window, and the adverse party is not willing to give written consent to amend, the party wishing to amend may file a motion for leave to amend, which should be:
freely given when justice so requires
