Pleadings Flashcards
Only these pleadings are allowed:
- Complaint
- Answer to a Complain
- Answer to a Counterclaim designated as a counter-claim
- Answer to a crossclaim
- Third-Party Complaint
- Answer to a Third-Party Complaint
- If Ct orders–> Reply to Answer
A request for a court order must be made by motion.
The Motion must:
A. be in writing UNLESS made during a hearing/trial
B. state with particularity the grounds for seeking the order; and
C. state relief sought
Drafting Complaint
- Civil action is commenced by filing a complaint with the court
- Claim for relied – Complaint must contain
1. short + plain statement of jx
2. short + plain statement of claim showing entitlement to relief and
3. relief sought - Allegations:
1. Each Allegation must be simple, concise + direct. No technical form id required.
2. A party may set out 2 or more statements of a claim/defense alternatively/hypothetically.
3. Party may state as many seperate claims/defenses as it has, regardless of consistnency. [NOTE: You CAN plead alternate and inconsistent theories (don’t know what fact finder will find; no discovery yet)]
Presenting Defenses
Every defense to a claim in any pleading must be asserted in Responsive Pleading.
- [Grounds to file MTD] Party may assert following defenses by motion:
1. Lack of Subject Matter Jx
2. Lack of Personal Jx
3. Improper Venue
4. 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.
[If you don’t put what you need in Complaint –> You’ll be dismissed]
Defenses that must be Asserted as MTD or Answer [“responsive pleading”] or amendments thereof.
- Lack of Personal Jx
- Improper Venue
- Insufficient Process
- Insufficient Service of Process
Failure to state Claim/ Failure to Join necessary Party [Rule 19] May be Asserted in
- Any Pleading
- SJ Motion
- At trial
Lack of Subject Matter Jx
At any time, if Ct determines no subject matter jx [sua sponte/upon motion,] it MUST dismiss the action
Motion to Dismiss
Pleading stating claim for relief must contain
- Short + Plain statement of claim showing Pleader is entitled to Relief.
May be dismissed for Failure to State legally “cognizable” claim. 12(b)(6)
- “Cognizability” = Claim Sufficient to entitle one to relief sought [prima faice]
— I.e. Fraud; Fraudulent Conveyance; IIED; Medical Malpractice; Negligence
Iqbal standard for surviving MTD
- Identify and eliminate “conclusory” allegations
- Simple “formulaic recitations of elements of a claim will not not do” and must be eliminated; then - Non-conclusory allegations must “plausibly” state a claim
- “Non-conclusory” facts remaining must contain sufficient factual matter to “state a claim of relief that is PLAUSIBLE on its face” [contrast with probable]
- Context-specific task: ct can draw on its “judicial experience and common sense” to decide what a plausible claim is
— i.e. in Iqbal where judges find “obvious alternative explanation” that is not purposeful discrimination.
Twombly + Iqbal Takeaways [MTD]
- Changed from the pleading standard from flexible notice pleading to “plausibilty” standard
– Distiction between factial allegation and conclusory allegation.
– Conclusory allegations will be eliminated, and the court will look to just factual allegations for whether they give rise to a “plausible” cause of action
– Plausibility is not to be confused with probability, and court may rely on their “judicial experience and common sense” to determine this.
-Important Note: NY state courts still uses the Conley standard.
Motion for More Definite Statement
Party may move for a more definite statement of a pleading to which a responsive pleading is allowed;
- but which is SO VAGUE/AMBIGUOUS that the party cannot reasonably prepare a response.
- Motion must be made before filing responsive pleading + point out Defects complained of + details desired.
- If Ct orders more def. statement + order not obeyed within 14 days/time set by Ct –> Ct may strike pleading/issues other appropriate order.
Result of granting MTD
- Dismissal W/O Prejudice [DWOP]
- Plaintiff can refile in ct whenever she likes
- No “prejudicial” effect - Dismissal w/Prejudice
- Cannot bring the claim again [foreclosed]
Form of Pleadings [Rule 10]
A. Caption
- Ct’s name
-Title: must name all parites + title of other pleading
- File #
- Rule 7(a) designation
B. Paragraphs; Seperate Statements
- Party must state claims/defenses in #’d paragraphs.
- A later pleading may refer by # to paragraph in earlier pleading.
- If doing so would promote clarity, each claim founded on a seperate transaction/occurrence - and each defense other than a denial - must be state in a seperate count/defense
C. Adoption by Reference; Exhibits
- A statement in a pleading may be adopted by reference elsewhere in same pleading/other pleading/motion. Copy of written instrument that is an exhibit to a pleading is part of Pleading.
Signing Pleadings, Motions, and Other Papers;
- Every Pleading/Written Motion/Other paper must be signed by at least one attorney of record in the attorney’s name - or by a party personally [if unrepresented.]
- Paper must state:
1. Signer’s address
2. E-mail
3. Phone#
-[Unless rule/statute specifically states otherwise] Pleadinf need not be verified/accompanied by affidavit.
Court must strike unsigned paper unless –> Omission is promptly corrected.
Representations to the Court [Signing]
By presenting Ct a Pleading/Written motion/Other Paper [by signing/filing/submitting/later advocating for it] –> attorney/unrepresented party certifies that to the best of the person’s knowledge/info/belief
1. It’s being presented for Proper Purpose
2. Based in Good Law
3. Provable
