Pleadings Flashcards
What must a complaint contain?
- Grounds for SMJ;
- Short and plain statement of claim showing P is entitled to relief;
- Demand for relief sought.
No need for PJ or venue.
A plaintiff must plead sufficient facts to support a….
Plausible claim
When a judge is determining whether a claim is plausible, they consider
their own experience and common sense.
What matters require more details or specifity in their complaints?
- Fraud;
- Mistake;
- Special Damages.
FRCP Rule 12 requires that a D respond by motion or answer within…
- 21 days after being served with process; OR
- Within 60 days from when the Plaintiff mailed service if service is waived.
Motions are not pleadings, they are…
requests for a court order.
When is a motion to strike brought?
When a party wants to strike immaterial or redundant statements in a pleading.
12f
When is a motion for a more definite statement brought?
When a complaint is so vague or ambiguous that a D cannot respond.
12e
What are the waivable defenses under FRCP Rule 12(b)?
(waived if not in first response)
- Lack of personal jurisdiction;
- Improper venue;
- Improper process;
- Improper service of process.
Which 12(b) motions can be raised as late as at trial?
(including as late as trial)
- Failure to state a claim; and
- Failure to join an indespensible party.
Can lack of SMJ be raised for the first time on appeal?
YES – an objection to SMJ can be raised at ANY TIME.
What must a D do if they file a 12(b)(6) motion before answering and it is denied?
D must file answer within 14 days.
What should be in a D’s answer?
- Responses to allegations of the complaint (admit, deny, state lack of sufficient information);
- Assertions of affirmative defenses (injects a new fact in the case).
Failure to deny an allegation is…
an admission.
What is never deemed admitted?
The amount of damages.
What are some affirmative defenses?
Statute of limitations, statute of frauds, res judicata, self-defense, all 12(b) defenses
If one fails to assert an affirmative defense in their answer, the court may treat it as a…
waiver of the defense.
A Plaintiff has a right to amend…
her complaint ONCE, no later than 21 days after the D serves its first Rule 12 response.
A Defendant has a right to amend…
his answer once, no later than 21 days after serving it.
If a Defendant’s first response was an answer, and he chooses to amend it, can he assert new Rule 12 defenses?
Yes, if he still has a right to amend.
How can one amend if the time to amend has expired?
- With court permission if justice so requires; or
- With written consent of opposing party.
When is permission to amend going to be denied by the court?
- If the party delayed too long;
- If it would prejudice the other party; or
- If the amendment would be futile.
Variance occurs when…
the evidence presented at trial does not match the pleadings.
If variance happens at trial and the opposing party does not object to the evidence being presented then…
the introducing party can move to amend the complaint to conform to the evidence.
HYPO: P sues for breach of contract. D answers. At trial, P introduces evidence that D assaulted her. D does not object. What happens?
D did not object, so the evidence can be let in. P may move to amend the complaint to show the assault claim.
If the SoL has run, but a party wants to amend their pleading to join a claim not originally asserted, the amended pleading will…
relate back if it concerns the same conduct if it concerns the same conduct, transaction, or occurrence as the original pleading.
An amendment to change the defendant will only relate back if it can be down that:
(1) The amendment concerns the same conduct, transaction, or occurrence;
(2) D had knowledge of the case (within period of service) so he won’t be prejudiced by the amendment; and
(3) D knew or should have known that P made a mistake.
HYPO: P is injured in Sam’s store. He sues Sam’s Store Inc. before the stature of limitations ran and has process served on Sam within 90 days – BUT P should have sued Sam Co. Limited. Sam is the president of Sam Co. Limited and is authorized to receive service. Should the P be allowed to amend the complaint?
Yes – Sam knew about the lawsuit within the period of the service of process and knew that he should have been sued but for the P’s mistake.
Supplemental pleadings set forth…
facts that occur after the pleading was filed.
Is there ever a right to file a supplemental pleading?
No – always up to the discretion of the court.
Rule 11 certification serves as evidence that the attorney, to the best of their knowledge and belief and after reasonable inquiry that:
(1) The paper is not presented for improper purpose;
(2) Legal contentions warranted by law or good argument law should be changed;
(3) Factual contentions and denials have evidentiary support.
A party makes this certification every time she presents the position to the court.
The purpose of sanctions is to…
deter a repeat of conduct, not to punish.
A law firm (is/is not) jointly responsible for an attorney who violates Rule 11.
IS.
A court may raise sanctions by issuing an…
order to show cause (for why sanctions should not be imposed).
Before imposing a sanction a court must…
give the party an opportunity to be heard.
If monetary sanctions are imposed, they are typically paid to…
the court, not the opposing party.
Before filing a motion for sanctions, a party seeking sanctions must…
(1) Serve motion on opponent; and
(2) the party in violation has 21 days to fix.
