Pleadings

Question 1

What does the filing of a complaint mean?

Answer 1

An action has commenced

Question 2

What is included in a complaint?

Answer 2

1. Statment of grounds of subject matter jurisdiction
2. short and plain statement of the claim showing that the plaintiff is entitled to relief and
3. a demand for relief sought

PJ and venue dont need to be included

Question 3

What details must be pleaded in a complaint?

Answer 3

sufficient facts to support a plausible claim

Question 4

How can a defendant challenge a complaint?

Answer 4

By making a 12b6 motion to dismiss for failure to state a claim

Question 5

What special pleading requirements exist for certain cases?

Answer 5

Fraud, mistake and special damages must be pleaded with more detail - particularity or specificity

Question 6

How may defendant respond to a pleading?

Answer 6

Defendant may respond by motion or by answer no later than 21 days after being served with process

(60 days if waived service)

Question 7

What are motions?

Answer 7

Requests for a court order. NOT PLEADINGS

Question 8

What is Rule 12e?

Answer 8

Motion for more definite statement
Addresses issues of form. It is used for a more definite statement when the complaint is so vague or amiguous the defendant simply cannot respond

Must make this motion before answering

Question 9

What is a Rule 12f?

Answer 9

Motion to strike
Addresses issues of form. It is used to ask the court to remove redundant or immaterial things from a pleading

Any party can move to strike

Question 10

What Rule 12 defenses are waived if not put in the FIRST Rule 12 response (motion or answer)?

Answer 10

1. A lack of personal jurisdiction
2. improper venue
3. improper process
4. Improper service of process

Question 11

What Rule 12 Defenses can be raiser after the first response is filed?

Answer 11

1. Failure to state a claim and a failure to join an indispensable party. (as late as trial)
2. Lack of SMJ can be raised at any time

Question 12

What must a defendant do it it makes a motion to dismiss under Rule 12 and it is denied?

Answer 12

Serve her answer no later than 14 days after notice of the denial

Question 13

What does the defendant do in the answer?

Answer 13

1. respond to the allegations in the complaint
2. Raise affirmative defenses

Question 14

What may the defendant do in responding to the allegations in the complaint?

Answer 14

1. admit some or all allegations
2. deny some or all allegations and
3. State that she has insufficient knowledge to admit or deny some or all of the allegations (denial but cant do this if answer is in her control)

Question 15

Can the defendant simply not deny allegations?

Answer 15

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

Question 16

What are some classic affirmative defenses a defendant can raise

Answer 16

1. statute of limitations
2. statute of frauds
3. res judicata
4. self defense
5. all rule 12b defenses

If not raised in answer considered waived subject to timing rules in Rule 12

Question 17

Does a plaintiff need to respond to affirmative defenses?

Answer 17

No. deemed denied

Question 18

When may a plaintiff amend her complaint?

Answer 18

Can amend her complaint once no later than 21 days after the defendant serves her first Rule 12 response

Question 19

When may a defendant amend her answer?

Answer 19

Can amend her answer once no later than 21 days of serving it

If Defendant’s first response was an answer and forgot to raise waivable defenses and affirmative defenses, she has the right to amend answer to include the waivable and affirmative defenses.

Question 20

Can parties amend after right to amend has expired?

Answer 20

Amending party must seek leave of court or get written consent of opposing party.

Court will look at
1. length of delay
2. prejudice to other party
3. futility of amendment

Question 21

When does variance occur?

Answer 21

Variance comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to confirm to the evidence

Question 22

Can you join a claim that was not originally asserted?

Answer 22

an amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleadings.

Question 23

What is relation back?

Answer 23

It means that you treat the amended pleading as though it was filed when the original was filed so it can avoid a statute of limitations problem.

Question 24

Does relate back apply to changes in defendants?

Answer 24

It can if:
1. amendment concerns the same conduct, transaction or occurrence as the original’
2. defendant had such knowledge of the case and
3. defendant knew or should of known that, but for mistake, she would have been named originally

Knowledge within 90 days after the filing of the complaint

applies when plaintiff sues the wrong defendant first, but the right defendant knew about it

Question 25

When are supplemental pleadings applicable?

Answer 25

They are set forth for things that happened after the pleadings were filed

Question 26

When does the Rule 11 signature requirement apply?

Answer 26

all papers except discovery. Signing certifies that to the best of her knowledge and belief after reasonable inquiry:
1. paper is not for an improper purpose;
2. legal contentions are warranted by law or a nonfrivoulous argument for a law change and
3. factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

Question 27

What is the purpose of sactions?

Answer 27

To deter a repeat of the conduct. Court must give opportunity to be heard before issuing sanctions

Question 28

What are types of sactions?

Answer 28

Non monetary like professionalism classes

monetary sanctions that are paid to the court

Question 29

What is the safe harbor provision?

Answer 29

When a party violates Rule 11, the opposing party files motion on party but not to court yet. Violating party had 21 days to fix the problem and avoid sanctions