pleadings Flashcards
what does rule state that the atty is certifying when he signs a pleading?
no improper purpose
warranted by existing law
evidentiary support of the facts
what if rule 11 is violated?
motion for sanctions
can a motion for sanctions be properly served by calling the other attorney to inform them?
no
when is service of process due
within 90 days of filing complaint
methods of service
personal
D home with person suitable age who lives there
Delivery to D agent
how do you serve a corp
officer or agent
why would you waive service?
extends time to file answer from 21 to 60 days
90 days if foreign
requesting waiver of service
in writing
give D 30 days to answer you
what needs to be on complaint
grounds for SMJ
P claim establishing relief
demand for relief sought
timing of complaint
day after triggering event
exclude weekends and holidays
when is an answer due?
within 21 days after service of process
when is an answer due after you initially had motion for SJ?
within 14 days after you receive notice of court’s decision
when may MTD - lack of SMJ be raised?
any time
when may MTD - lack of PJ or venue be raised?
must be raised in first response or else waived
when may MTD - failure to state a claim or failure to join necessary party be raised?
any time during trial
when may you amend as of right?
once
within 21 days if no responsive pleading required
amending when S/L has run
relation back doctrine
requirements to relate back for a new CLAIM
same T/O
notice to opposing party
requirements to relate back for a new party
same T/O
new party knows or has reason to know the action should have been brought against them
notice to opposing party
12b6 motion to dismiss definition
failure to assert legal theory of recovery
or
failure to allege facts sufficient to support claim
how do you view the facts during a 12b6 motion
views them in light most favorable to P
what can the court consider during a 12b6?
allegations and attached exhibits in the complaint
temporary restraining order
effective no longer than 14 days
issue w/o notice to other party if you tell court why they dont deserve notice
not immediately appealable
preliminary injunction
notice to D required
P likely to succeed on merits
likely to suffer irreparable harm
balance of inquires in P favor
public interest
