Pleadings

Question 1

Pleadings - Basic Documents

Answer 1

complaint
answer
reply

Question 2

FRC 8 a - the complaint

Answer 2

claim for relief - a pleading that states a claim for relief must contain
1. a short and plain statement of the grounds for the courts jurisdiction unless the court already has jurisdiction and the claim needs no new support
2. a short and plain statement of the claim showing that the pleader is entitled to relief and
3. a demand for the relief sought which may include relief in the alternative or different types of relief

Question 3

Conley rule (fed)

Answer 3

rules do not require a claimant to set out in detail the facts - just a short and plain statement that will give the d fair notice of what the ps claim is and the ground it rests on

Question 4

Twombly

Answer 4

universal hone company that was a monopoly that was split up - an act was passed to try and end monopolies - led to the creation of the two-ply plausibility standard

Question 5

plausibility standard

Answer 5

• stating a claim under section 1 of the Sherman act requires a complaint with enough factual matter taken as true to suggest that an agreement was made
• the crt requires enough facts to state a claim to relief that is plausible on its face. Because the p here have not nudged their claims across the line from conceivable to plausible their complaint must be dismissed

Question 6

Iqbal

Answer 6

designated high person of interest from race after 9/11 - led to the clarification of the twombly two pronged approach

Question 7

Twombly Two Pronged Approach

Answer 7

• id the allegations from the complaint that are merely legal conclusions - these are not entitled to the presumption of the truth
• assume the residual factual allegations are true and ask if they give rise to a facially plausible suggestion of illegal conduct
  - a claim has facial plausibility when the p pleads factual content that allows the crt to draw the reasonable inference that the d is liable for the misconduct alleged

Question 8

FRCP 15 a - amending the pleading

Answer 8

1. amending as a matter of course. A party may amend its pleading once as a matter of course within
   a. 21 days after serving it or
   b. if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after a service of a motion under 12 b e or f whichever is earlier
2. other amendments. In all other cases a party may amend its pleading only with the opposing party’s written consent or the courts leave. The court should freely give leave when justice so requires

Question 9

possible reasons to deny leave to amend

Answer 9

futility
bad faith
undue delay
undue prejudice to opposing party
repeated failures to cure deficiencies

Question 10

FRCP 15 c - relation back of amendments

Answer 10

after statute of limitations expired
1. when an amendment related back. An amendment to a pleading related back to the date of the original pleading when
a. the law that provides the applicable statute of limitations allows relation back (very rare)
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 (adding a claim)
c. the amendment changed the party or the naming of the party against who a claim is asserted if rule 15c1b is satisfied and if within the period provided by rule 4m for serving the summons and the complaint the party to be brought in be amendment (changing a name)
1. received such notice of the action that it will not be prejudiced in defending on the merits and
2. knew or should have known that the action would have been brought against it but for a mistake concerning the proper partys identity
ex. Krupski v. Costa Crociere - tripped and fracture femur while on cruise - d should have known within 4 m period that it was not named d in the complaint only because of a mistake

Question 11

FRCP 8b - Defenses admissions and denials

Answer 11

1. in general. In responding to a 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 a opposing party
2. denials - in responding to the substance. a denial must fairly respond to the substance of the allegation
3. general and specific denials - a party that intends in good faith to deny all the allegations of a pleading - including the jurisdictional grounds - may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegation or generally deny all except those specifically admitted
4. denying part of an allegation - a party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest
5. lacking knowledge or information - a party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state and the statement has the effect of a denial
6. effect of failing to deny - an allegation other than one relating to the amount of damages is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required an allegation is considered denied or avoided.

Question 12

FRCP 12 b - how to present defenses

Answer 12

every defense to a claim for relied in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion.
1. lack of smj
2. lack of pj
3. improper venue
5. insufficient process
5. insufficient service of process
6. failure to state a claim upon which relief can be granted and
7. failure to join a party under rule 19
(2-5 are waivable)
- a motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion

Question 13

FRCP 12 g - joining motions

Answer 13

• right to join - a motion under this rule may be joined with any other motion allowed by this rule
• limitations on further motions - except as provided in rule 12h2 or 3 a party that makes a motion under this rule must not make another motion under this rule raiding a defense or objection that was available to the party but omitted from its earlier action. (has to bring all at once in a single motion to dismiss)

Question 14

FRCP 12 h - waiving and preserving certain defenses

Answer 14

1. when some are waived a party waives any defense listed in rule 12 b 2-5 by
   a. omitting it from a motion in the circumstances described in 12g2 or
   b. failing to either 1. make it by motion under this rule or 2. include it in a responsive pleading or in an amendment allowed by rule 15 a1 as a matter of course
2. lack of smj. if the crt determines at any time that it lacks smj the crt must dismiss the action

Question 15

FRCP 12 f - motion to strike

Answer 15

appropriate when a party believes that a pleading contains an insufficient defense or any redundant immaterial impertinent or scandalous matter

Question 16

FRCP 11 A - signature

Answer 16

every pleading written motion and other paper must be signed by at least one attorney of record in the attorneys name or by a party personally if the party is unrepresented

Question 17

FRCP 11B - representations to the court

Answer 17

by presenting to the court a pleading written motion or other paper - whether by signing filing submitting or later advocating it, an attorney or unrepresented party certifies that to the best of the persons knowledge information and belief formed after an inquiry reasonable under the circumstances
1. it is not being presented for any improper purpose such as to harass cause unnecessary delay or needlessly increase the cost of litigation (king v. whither - improper ballot alleged during trump Biden race - parties and their attorneys are free to use litigation as a vehicle for effective political expression and association contesting election results is not itself an improper purpose for litigation)
2. the claims defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending modifying or reversing existing law or for establishing new law (king - a claim can be meritless rather than frivolous)
3. the factual contentions have evidentiary support or if specifically so identified will have evidentiary support or if specifically so identified will likely have evidentiary support after a reasonable opportunity for further investigation or discovery and (kin - has to have viable evidentiary support without embellishment)
4. the denials of factual contentions are warranted on the evidence or is speciifically so identified are reasonable based on belief or a lack of information
Relevant factors can include
- whether the signer of the documents had sufficient time for investigation
- the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading motion or other paper
- whether the case was accepted from another attorney
- the complexity of the facts and the attorneys ability to do a sufficient pre-filing investigation and
- whether discovery would have been beneficial to the development of the underlying facts

Question 18

FRCP 11 c 1 - sanctions in general

Answer 18

1.in general - if after notice and a reasonable opportunity to respond the court determines the real 11b has been violated the court may impose sanctions on any attorney law firm or party that violated the rule or is responsible for the violation. Absent exceptional circumstances a law firm must be held jointly responsible for a violation committed by its partner associate or employee

Question 19

FRCP 11 c 2 - motion for sanctions

Answer 19

a motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violated rule 11b. the motion must be served under rule 5 but must not be filed or be presented to the court if the challenged proper claim defense contention or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets (21 day safe harbor rule) if warranted the court may award to the prevailing party the reasonable expenses including attorneys fees incurred for the motion.
(hadges v Yonkers racing corp - guy got banned from racing and betting on horses and all racetracks stopped hiring him - required d to serve p with request for sanctions 21 days before presenting it to crt for a crt to impose sue sponte sanctions it must enter an order to violate subdivision b and directing an attorney law firm or party to show cause why it has not yet violated subdivision b an attorney is entitled to rely on his or her clients statements as to factual claims when those statements are objectively reasonable

Question 20

FRCP 11c 3 - on the courts initiative

Answer 20

on its own the court may order an attorney law firm or party to show cause why conduct specifically described in the order has not violated rule 11b

Question 21

FRCP 11 c 4 - nature of a sanction

Answer 21

a sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by other similarly situated. The sanction may include non monetary directives an order to pay a penalty into court or if imposed on motion and warranted for effective deterrence an order directing payment to the movant of part or all of the reasonable attorneys fees and other expenses directly resulting from the violation

Question 22

FRCP 11 C 5 - limitations on monetary sanctions

Answer 22

the court must not impose a monetary sanction
a. against a represented party for violating rule 11b2 or
b. on its own unless it issued the show cause order under rule 11c3

Question 23

28 USC 1927

Answer 23

any attorney or other person admitted to conduct cases in any court of the US or any territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs expenses and attorneys fees reasonably incurred because of such conduct