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Federal Civil Procedure > Pleadings > Flashcards

Pleadings Flashcards

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Civil Procedure 1L flashcards
1
Q

In federal court, what commences an action?

A

Filing the complaint commences the action

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2
Q

What must the complaint contain?

A

a) a statement of GROUNDS OF SMJ
b) a SHORT AND PLAIN STATEMENT OF THE CLAIM showing that the Plaintiff is entitled to relief; and
c) A DEMAND for relief sought (i.e. damages, injunction, declaratory judgment)

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3
Q

what does the Plaintiff not have to allege in their complaint?

A

the P need not allege grounds for PJ or venue

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4
Q

regarding the “short and plain statement of the claim” showing that the P is entitled to relief - what must the P plead?

A

In stating the claim, the Plaintiff must plead SUFFICIENT FACTS TO SUPPORT A PLAUSIBLE CLAIM.

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5
Q

How is ‘plausibility’ determined?

A

To determine plausibility, the judge uses their own experience and common sense.

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6
Q

How can a Defendant challenge a Plaintiff’s complaint and the plausibility of their claim?

A

by making a 12(b)(6) failure to state a claim motion.

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7
Q

What are the cases that require special pleading?

A

fraud, mistake, and special damages must be pleaded with more detail - with PARTICULARITY or SPECIFICITY

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8
Q

How must a defendant RESPOND to the Plaintiff’s complaint?

A

Rule 12 - requires D to respond in 1 of 2 ways:
(1) by MOTION; or
(2) by ANSWER

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9
Q

when is the defendant required to respond to P’s complaint?

A

to avoid DEFAULT, the defendant must respond (my motion or answer) NO LATER THAN 21 DAYS AFTER BEING SERVED with PROCESS.

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10
Q

how long does the D have to respond if they WAIVED service?

A

if the defendant waived service, they have 60 DAYS from when the Plaintiff MAILED THE WAIVER form to RESPOND.

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11
Q

What is a motion?

A

a motion is NOT a pleading - it is a request for a COURT ORDER; they fall under Rule 12

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12
Q

what are the rule 12 motions that address issues of FORM?

A

a) Rule 12(e) motion for MORE DEFINITE STATEMENT
b) Rule 12(f) motion to STRIKE
c) Any part can move to STRIKE (i.e. defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative defense).

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13
Q

when is a Rule 12(e) motion for MORE DEFINITE Statement used?

A

it is used when the complaint is so VAGUE or AMBIGUOUS the defendant simply cannot respond

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14
Q

when must a rule 12(e) motion for more definite statement be made?

A

a rule 12(e) motion for more definite statement must be made BEFORE ANSWERING (that is before defendant files their answer to the P’s complaint)

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15
Q

when does a party use a Rule 12(f) motion to STRIKE?

A

a rule 12(f) motion to STRIKE asks the court to REMOVE REDUNDANT or IMMATERIAL things from a pleading (i.e. a complaint, an answer, etc.)

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16
Q

who can move to STRIKE?

A

Any part can move to STRIKE (i.e. defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative defense).

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17
Q

what are 12(b) motions?

A

they are motions to DISMISS (for some reason)

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18
Q

how many 12(b) motions are there?

A

there are 7

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19
Q

What are ‘waivable’ defenses under Rule 12(b)?

A

Some Rule 12(b) defenses are WAIVED if not put in the FIRST RULE 12 RESPONSE (a rule 12 motion OR answer)

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20
Q

what are the 4 ‘waivable’ defense under Rule 12(b)?

A

“3 P’s and V”
(1) a lack of PERSONAL JURISDICTION
(2) Improper PROCESS (problem with the papers - summons or complaint)
(3) Improper SERVICE OF PROCESS (papers not served right)
(4) Improper VENUE

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21
Q

what are the other 12(b) defenses that can be raised after the first response and NOT WAIVED?

A

there are 3:
(1) a FAILURE TO STATE A CLAIM upon which relief can be granted

(2) a FAILURE TO JOIN AN INDISPENSABLE PARTY

(3) a LACK OF SMJ

22
Q

when can these non-waivable defenses be raised?

A

(1) a FAILURE TO STATE A CLAIM (can be raised any time before trial or at trial) but no later - i.e. cannot be raised for the first time on appeal)

(2) a FAILURE TO JOIN AN INDISPENSABLE PARTY (can be raised any time before trial or at trial)

(3) a LACK OF SMJ (can be raised at ANY TIME -even on appeal; and is NEVER waived!)

23
Q

What happens if a court determines that it has no SMJ?

A

any act done by the court without SMJ is VOID.

Whenever the court determines that it has no SMJ, it must dismiss OR remand (if it was removed from state court)

24
Q

what happens if the defendants motion to DISMISS under 12(b) gets DENIED?

A

Defendant must then serve THEIR ANSWER NO LATER THAN 14 DAYS AFTER NOTICE OF THE DENIAL

25
Q

What is an answer?

A

An answer is a pleading - and is one of the Defendant’s options when responding to the P’s complaint

26
Q

What does the defendant do in the answer?

A

the defendant does 2 things in the answer:
a) responds to the allegations in the complaint
b) raises affirmative defenses

27
Q

how doe a defendant (a) respond to the allegations in a complaint?

A

the defendant may:
(a) ADMIT some or all allegations

(b) DENY some or all allegations
or

(c) state that they have INSUFFICIENT KNOWLEDGE to admit or deny some or all of the allegations (has effect of denial); cannot do this when the answer to the allegation is in your control

28
Q

what happens if you fail to admit or deny an allegation?

A

Failure to deny an allegation is an ADMISSION except regarding the amount of damages

29
Q

what are ‘affirmative defenses’?

A

affirmative défense inject a new fact into the case that woudl allow the defendant to win

30
Q

what are examples of classic affirmative defenses?

A

statute of limitations, statute of frauds, res judicator, an self-defense

31
Q

if you don’t raise 12(b) motion to dismiss - where can you raise them?

A

all rule 12(b) defense can be pleaded as affirmative defenses

32
Q

what happens if a defendant fails to assert an affirmative defense in their answer?

A

if the defendant fails to assert an affirmative defuse in their answer, the court may treat it as WAIVED subject to the timing rules in Rule 12

33
Q

does a plaintiff have to respond to affirmative defenses?

A

No! there is no need for the plaintiff to respond, as the allegations in the defendant’s answer are deemed DENIED

34
Q

Amended Pleadings - Is there a right to amend?

A

a) By Plaintiff
b) by defendnat

35
Q

when can a plaintiff have the right to amend their pleading?

A

a plaintiff has a right to amen her complaint ONCE no later than 21 days AFTER the defendant serves her first Rule 12 Response.

36
Q

when can a defendant have the right to amend?

A

a defendant has a right to amend his answer ONCE no later than 21 days of serving it

37
Q

can a defendant include omitted rule 12(b) waivable defense in amendment?

A

if D’s first response was an answer - and they forgot to raise ‘waivable defenses’ and forgot to raise affirmative defense, they have a right to amend their answer to include the ‘waivable defenses’ and the affirmative defense.

38
Q

what are the parties options if the “right to amend” has expired?

A

after period to amend was of right has expired - the amending party MUST seek LEAVE OF COURT (or get WRITTEN CONSENT FROM OPPOSING PARTY)

39
Q

when will a court grant leave to amend?

A

if “justice so requires”

factors to look at: length of delay, prejudice to other party, and futility of amendment.

40
Q

How can a party amend at trial?

A

through VARIANCE - which comes up when the evidence at trial does not match what was pleaded.

(i.e. P sues D for breach of contract; and at trial P introduces evidence that D assaulted her)

41
Q

what happens if the other party fails to object to variance at trial?

A

the party introducing the evidence may move to amend the complaint to conform to the evidence (and the evidence gets admitted).

If d did object - evidence would not be admitted because it is at variance with the pleading.

42
Q

what happens if the other party fails to object to variance at trial?

A

the party introducing the evidence may move to amend the complaint to conform to the evidence (and the evidence gets admitted).

If d did object - evidence would not be admitted because it is at variance with the pleading.

43
Q

How to amend after STATUTE OF LIMITATIONS (SOL) has run? (RELATION BACK DOCTRINE)

A

There are 2 types of amendments (where the relation back doctrine applies)
a) to join a CLAIM not originally asserted
b) to change a DEFENDANT

44
Q

what is the RELATION BACK doctrine?

A

The amended pleading is treated AS IF FILED on the date that the ORIGINAL pleading was filed (to avoid a statute of limitations issue)

45
Q

a) to join a claim not originally asserted + relation back doctrine

A

an AMENDED pleading “relates back” IF the pleading concerns the SAME CONDUCT, TRANSACTION, OR OCCURRENCE, as the original pleading (the pleading that is being amended)

if it is not related - it will not relate back

46
Q

b) to change a defendant + relation back doctrine

A

the amendment will relate back if:
1) the amendment concerns the SAME CONDUCT, TRANSACTION, OR OCCURRENCE 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.

**basically applies when P sued wrong D first and the right D knew about it

47
Q

when must the D’s knowledge reference in the ‘amendment to defendant’ arise?

A

the knowledge must have come within the period of SERVICE OF PROCESS (90 days after the filing of the complaint)

48
Q

what are Supplemental Pleadings

A

Supplemental Pleadings set forth things that happened AFTER the pleadings were filed

49
Q

is there a right to file a supplemental pleading?

A

NOPE! there is no right to file a supplemental pleading – you MUST make a MOTION (and whether it is granted or not is within the discretion of the trial court)

50
Q

what is the safe harbor provision?

A

If the other party violates Rule 11 - the opposing party CANNOT immediately file a motion for sanctions.

Rather - she serves the motion on other parties - but does not file it with the court yet.

**the party in violation has a SAFE HARBOR OF 21 DAYS in which to fix the problem and avoid sanctions. If they do not do so - then the motion can be filed with the court.

Federal Civil Procedure (13 decks)

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