Pleadings

Question 1

Rule 1

Answer 1

“Rules are to be followed by court and parties to be just, speedy, and inexpensive determination of every action and proceeding.”

Question 2

Rule 3

Answer 2

A civil action is commenced by filing a complaint with the court.

Question 3

Rule 7 (a)

Answer 3

Pleadings allowed
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint

Question 4

Rule 8 (a)

Answer 4

Complaint (Claim for Relief) must have:
1) A short statement for grounds for jurisdiction
2) Claim showing that the pleader is entitled to relief Conley v. Gibson
i) Fair notices
ii) Grounds on which it rests.
(matching elements)
a) Factual Allegations
must be plausible
to meet elements
(Twombly)
b) Must be non-
conclusory (Iqbal) 3) Demand for relief sought

Question 5

Rule 8 (b)

Answer 5

Defenses; Admissions and Denials
In general:
1) In responding to any pleading a party must:
a) State in short and plain terms
its defenses to each claim
asserted against it; and
b) Admit or deny the allegations
asserted against it by an
opposing party
2) Denials: A denial must fairly respond to the substance of the allegation
3) General and specific Denials
4) Denying part of allegation: Admit true part and deny the rest.
5) Lacking knowledge or info: State what is unknown (has the effect of a denial
6) Effect of failing to deny: Allegations are admitted if a responsive pleading is required and the allegation is not denied

Question 6

Rule 8 (c)

Answer 6

Affirmative Defenses
1) In response to a pleading:
Fraud, duress, assumption of
the risk, estoppel, illegality etc.
2) Mistaken designation: If a party
mistakenly designates a
defense as a counterclaim, or
counterclaim as a defense, the
court must treat it as correct

Question 7

Rule 8(d)

Answer 7

Pleading to be concise and direct
(1) In general, each allegation must be simple,
concise and direct, no technical form required
(2) Alternative statements of a claim or defense:
Party can set out 2 or more statements of a
claim/defense either in a single count or
separate ones. If a party makes alternative
statements, the pleading is sufficient if any are
sufficient.
(3) Inconsistent claims or defenses: Party may
state as many separate claims or defenses as it
has regardless of consistency

Question 8

Rule 9(b)

Answer 8

Fraud or Mistake, Conditions of the Mind:
(1) party must state with particularity the
circumstances constituting fraud or mistake
time, place, and nature of alleged
misrepresentations must be disclosed (what is the
lie)
(2) Malice, intent, knowledge, and other conditions
of a person’s mind may be alleged generally

Question 9

Rule 12(a)

Answer 9

Time to Serve a Responsive Pleading: Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows
(1) A defendant must serve an answer:
(i) within 21 days after being served with the
summons and complaint; or
(ii) if it has timely waived service under Rule
4(d), within 60 days after the request for a
waiver was sent, or within 90 days after it was
sent to the defendant outside any judicial
district of the US.
(b) A party must serve an answer to a
counterclaim or crossclaim within 21 days after
being served with the pleading that states the
counterclaim or crossclaim.
(c) A party must serve a reply to an answer within
21 days after being served with an order to reply
(4) Effect of a Motion: Unless the court sets a different
time, serving a motion under this rule alters these as
follows:
(a) if the court denies the motion, the responsive
pleading must be served within 14 days after
notice of the court’s action; or
(b) if the court grants a motion for a more definite
statement 12(e), the responsive pleading must be
served within 14 days after the more definite
statement is served

Question 10

Rule 12(b)

Answer 10

How to present defenses and Objections: Every defense to a claim for relief must be asserted in the responsive pleading if one is required. Party may assert the following defenses by pre- answer motions:
(1) Lack of subject matter jurisdiction
(a) Can be facial: Under facts as alleged, no
jurisdiction
(b) Or, factual: facts as they truly are, evidence
outside of pleadings
(2) Lack of personal jurisdiction
(3) Improper venue
(4) Insufficient process (technical defend in content
of summons)
(5) Insufficient service of process (not complicit w/
rule 4, method of service)
(6) Failure to state a claim upon which relief can be
granted
(a) Formally insufficient: fails to give minimum
level of detail or,
(b) Substantive/ Legal insufficiency: Fail to say
anything that would render defendant liable for
violation of the law
(7) Failure to join a party under rule 19

Question 11

Rule 12(c)

Answer 11

Motion for Judgment on the Pleadings

Question 12

Rule 12(e)

Answer 12

Motion for a More Definite Statement
(1) Can be used if claim is so vague or ambiguous
that they cannot reasonably respond (must be made
before movants responsive pleading)

Question 13

Rule 12(f)

Answer 13

Motion to Strike
(1) Appropriate only when party believes pleading is
insufficient or redundant, immaterial or scandalous
matter (Defendant must make before response
pleading)
(a) Used for legal defense or clearly false
information

Question 14

Rule 12(g)

Answer 14

Joining Motions
(1) A motion under this rule may be joined with any
other motion
(2) A party that makes a motion under this rule
raising a defense or objection must not make
another motion except as provided in Rule 12(h)(2)
& (3) (pre answer motions)

Question 15

Rule 12(h)

Answer 15

Waiving and preserving certain defenses
(1) A party waives any defenses listed in Rule 12(b)
(2)-(5) by:
(a) Omitting it from a motion in the
(b) circumstances described in rule 12(g) or;
Fail to:
(i) Make it by motion under this rule or,
(ii) Include it in a responsive pleading or
an amendment allowed by rule 15(a)
(1) as a matter of course (didn’t put it
in answer/amendment to answer in 21
days
(2) When to raise others: 12(b)(6), 12(b)(7) & Rule
19(b) may be raised by motion at another
time
(a) In any pleading allowed under 7(a)
(b) 12(c) motion
(c) Or at trial
(3) Lack of subject matter jurisdiction 12(b)(1):
court may dismiss the action at any time

Question 16

Rule 15(a)

Answer 16

Amending as a matter of course:
(1) A party can amend once as a matter of course
if:
(a) 21 days of serving it or,
(b) If pleading is one to which a responsive
pleading is required, 21 days after service
of responsive pleading or 21 days after
service of a motion under rule 12(b), (e),
or (f), whichever is earlier
(2) Other Amendments: All other cases a party
may amend a pleading only when the
opposing party’s written consent or courts
leave. Courts should freely give when justice
requires.
(a) Denying Leave: Foman Factors
(i) Undue delay
(ii) Bad faith
(iii) Dilatory motive
(iv) Repeated failure to cure
(v) deficiencies
(vi) Undue prejudice
(vii) Futility of amendment (useless)
(3) Time to respond: Unless court says
otherwise, any required response to an
amended pleading must be made within the
time remaining to respond to original
pleading or within 14 days, whichever is later

Question 17

Rule 15(c)

Answer 17

Relation Back of Amendments
(1) An amendment relates back when:
(a) The law that provides the applicable
statute of limitations allows the relation
back; or
(b) The amendment asserts a claim or
defense that arose out of the conduct,
transaction, or occurrence set out- or
attempted to be set out- in the original
pleading; or
(c) The amendment changes the party or
naming of the party against whom a
claim is asserted. If rule 15(c)(1)(b) is
satisfied, and if, within the period from
rule 4(m) (90 days) for serving the
summons and complaint, the party can
be brought in by amendment:
(i) Received such notice of the action
that it will not be prejudiced in
defending on the merits; and
(a) Can be through an agent
Ex. a parent company
(ii) Knew or should have known the
action would have been brought
against it, but for a mistake
concerning the proper party’s
identity
(a) Just because you know of a
correct party does not
preclude you from making a
mistake in selecting the
wrong party

Question 18

Rule 11(a)

Answer 18

Signing Pleadings, Motions, etc.: every pleading, written motion, and other paper must be signed by one attorney of record, or by party of pro se (sign any document filed to court)
(1) Paper must have signers name, address,
phone #, and email
(2) Court must strike unsigned papers unless
promptly corrected

Question 19

Rule 11(b)

Answer 19

Representation to the court: By presenting a paper to the court, attorney or pro se party certifies to the best of their knowledge, it is reasonable under the circumstances: (dependant on how long you have)
(1) Not presented for improper reasons to
harass, delay or increase cost of litigation
(largest sanction)
(2) Claims or defenses and other legal
contentions are warranted by existing law
or nonfrivolous argument for expanding,
modifying, or reversing existing law or
establishing new law (objective standard)
(3) The factual contentions have evidentiary
support, or if specifically identified will have
evidentiary support after reasonable
opportunity for further discovery.
(4) The denials of factual contentions are
warranted on evidence, or if specifically
identified are reasonably based on lack of
belief or info.

Question 20

Rule 11(c)

Answer 20

(1) After 11(b) is violated, court may impose an
appropriate sanction on an attorney, firm, or party
that violated the rule Law firm must be held liable
for employee’s actions
(2) Motion for Sanction. Must be made separately
from any other motion and must describe specific
conduct that violates 11(b), served to the party first,
then if not addressed in 21 days, can file with the
court. (Safe Harbor) Court may award money for
fees incurred by motion if awarded. (Penalty paid
to court)
(3) On the Courts Initiative: on its own, the court may
order an attorney, firm, or party to show cause
why conduct has not violated rule 11(b) (Show
cause order)
(4) Nature of a Sanction: Sanction imposed under this
rule must be limited to what suffices to deter
repetition of conduct by others similarly situated.
It can include non-monetary directives (striking
claim, continuing education); or a penalty, or if
imposed on motion, order to pay the movant for
all or part of reasonably attorney’s fees resulting
from the violation
(5) Limits on Monetary Sanctions. No monetary
sanctions when:
(a) Against a representing party for violating
11(b)(2) or;
(b) On its own, unless issued the show cause
under rule 11(c)(3) before voluntary
dismissal/settlement of claims made by
sanctioned attorneys
(6) Requirements for an order: An order for a sanction must describe the sanctioned conduct and explain basis for it

Question 21

Rule 11(d)

Answer 21

Inapplicability to Discovery: Rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26-37