Pleadings Flashcards
What bases must P’s pleading include (3)
basis of:
1. SMJ
2. claims
3. relief
When must must D answer a complaint
w/in 21 days of service
What may D file before answer, and what happens to D’s answers timeline if denied
Rule 12 motion (defenses and objections); if denied, D answers within 14 days of ct notice of denial
By when must P reply if motion D may file before answer is ordered by the ct?
P must reply w/in 21 days of service
Complaint pleading requirements
Puts D on notice of enough facts to raise a “plausible” claim.
In addition to the original claim, to what claims do pleading requirements apply? (3)
- cross-claims
- 3P claims
- counterclaims
“plausible” claim vs. “conceivable” claim
“plausibly” suggesting entitlement relief, vs. “merely conceivable”
What is a “heightened” pleading?
P must plead with particularity
When are “heightened” pleadings triggered (4)
If P claims:
1. fraud
2. mistake
3. special damages (not reasonably anticipated for the type of claim asserted), OR
4. conditions precedent not being satisfied
Joinder of claims (FRCP 18) (how many claims may a pt join in a single action?)
A pt may join as many claims in a single action as the pt has against an opposing pt
How must D’s answer deal with each assertion in the pleading? (3)
- Deny,
- Admit, OR
- Generally deny w/ specific admission
What is signified if D neither explicitly denies nor admits an assertion?
Admission
May D’s answer include a counterclaim (joinder of claims)?
Yes, it MAY
What counterclaims MUST be included in answers (i.e., Compulsory Counterclaims)?
Claims arising from same tx or occurrence (STO as Ps
What happens to compulsory counterclaims not pleaded in answers?
They are barred
What claims of D’s MAY be plead in answer (i.e., not MUST; Permission Counterclaims)
Any other claim D has, AS LONG AS it has federal jx
When may D’s answer include a cross-claim against a co-party?
if the claim arises out of STO as P’s claim
What MUST a co-party (3PD) raise in counterclaim against cross-claim?
any compulsory claims against the crossclaimant (D; 3PP)
Amendments to pleading
As of right, a party may amend (1) within 21 of service before a responsive pleading (not motion) or (2) if pleading requires a response, 21 after responsive pleading/pre-answer motion. May also amend w/ leave of ct or other pt’s written consent. Other pt has 14 to respond or remaining response time for original pleading
Relation back
Amended pleading with new claims or defenses relates back to original pleading date, only if new claim/defense arose from the same transaction or occurrence as original
1. FRCP 15(c): New party can be added to complaint even though SOL has run as to him, only if…
a. 1) The claim arose from the same transaction or occurrence alleged in the original claim,
b. 2) New pt had notice of the action w/in time limit for service (90 days from filing), and
c. 3) New pt knew or should have known w/in 90 of filing that, but for a mistake concerning
the identity of the proper party, he would have been included in the original action
2. If SOL has not run, Π may add Δ without relation back if time for amendment or leave to amend
Motions components
i. pre-answer motions
ii. threshold defenses
iii. evidentiary material presented in 12(b)(6) MTD
iv. sanctions (FRCP 11)
Pre-answer motions
Δ may raise the below 12(b)(#) objections by motion to dismiss (MTD) with or instead of pleadings (e.g., an answer)
1. (1) lack of SMJ, (2) lack of PJ (over person or property), (3) improper venue, (4) insufficient process (defect in summons form), (5) insufficient service of process, (6) failure to state a claim upon which relief can be granted (Π is not entitled to relief and cannot possibly recover as a matter of law after accepting all well-pleaded allegations in the complaint as true), (7) failure to join an indispensable party (under FRCP 19)
2. Do the facts include a process server? Check whether 12(b)(4) and/or 12(b)(5) MTD is applicable
Threshold defenses
Certain defenses (lack of PJ, improper venue, insufficient process, & insufficient service of process) and affirmative defenses must ALL be raised at beginning of the case in the FIRST response by answer or pre-answer MTD, or they are waived!
1. Other 12(b) defenses (1), (6) and (7) (lack of smj, failure to state a claim upon which relief can be granted, failure to join an indispensable party) are not waivable and need not be raised in the first response
2. Implied consent: Pt may amend answer to conform to unpleaded issues that were actually litigated
If evidentiary material presented in a 12(b)(6) MTD, …
…treat as motion for summary judgment (FRCP 12(d))
1. Court must give all parties opportunity to respond with material pertinent to the motion
Sanctions (FRCP 11)
Court may impose sanctions against a party that presents an improper paper…
1. By court’s initiative, ct enters an order to show cause why sanctions should not be imposed, or
2. Other pt motions for sanctions. If not withdrawn/corrected by pt w/in 21, may file motion w/ ct
3. Law firms are jointly liable for employees; sanctions go to attorney, not the represented party
