Pleadings

Question 1

Complaint

Answer 1

in federal court, the filing of the complaint commences the action

Content of the Complaint must contain:
1) a short statement of the grounds of subject matter jurisdiction (not required to show venue or personal jurisdiction)
2) a short and plain statement of the claim showing that the plaintiff is entitled to relief; and
3) a demand for the relief sought

Question 2

Detail Required in Complaint

Answer 2

the plaintiff must plead sufficient facts to support a plausible claim (the judge determines plausibility using her experience and common sense)

Fraud, mistake, and special damages must be pleaded with particularity or specificity (fraud is likely to come up)

Question 3

Defendant’s Response

Answer 3

Rule 12 requires the defendant to respond in one of two ways:
1) by motion
2) by answer

Question 4

Timing for Defendant’s Response

Answer 4

The defendant must respond (motion of answer) no later than 21 days after being served with process.

If the defendant waived service of process, he has 60 days from when the plaintiff mailed to waiver form to respond.

Question 5

What are motions

Answer 5

motions are not pleadings, they are requests for a court order

Question 6

Motions Addressing Issues of Form

Answer 6

12(e) Motion for More Definite Statement - used when the complaint is so vague or ambiguous that the defendant cannot respond (must be made before answering). If granted, the opposing party has 14 days after notice of order to obey.

12(f) Motion to Strike - Asks the court to remove redundant or immaterial things from a pleading (any party can move to strike)

Question 7

Waivable Defenses Under Rule 12(b)

Answer 7

The following Rule 12(b) defenses are waived if not put in the first rule 12 response:
1) lack of personal jurisdiction
2) improper venue
3) improper process (documents)
4) improper service of process

3Ps and a V

Question 8

Rule 12(b) Defenses that can be Raised as late as at trial

Answer 8

1- Failure to state a claim
2- failure to join an indispensable party

Question 9

Rule 12(b) Defenses that can be Raises at Any Time

Answer 9

Lack of subject matter jurisdiction (can even be raised for the first time on appeal)

Question 10

Denial of a Rule 12 Motion

Answer 10

if a defendant’s rule 12 motion is denied, she must serve her answer no later than 14 days after the notice of denial

Question 11

what is the answer

Answer 11

a pleading

Question 12

Two things Answer Must Do

Answer 12

1- Respond to allegations in the complaint
2- Raise Affirmative Defenses

Question 13

Responding to Allegation in Complaint

Answer 13

the answer may
1- admit some or all of the allegations
2- deny some or all of the allegations
3- state that she has insufficient knowledge to admit or deny some or all of the allegations (has the effect of a denial) (cannot do this if the answer to the allegation is within the party’s control)

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

Question 14

Raising Affirmative Defenses

Answer 14

The answer must state any affirmative defenses the defendant may have such as SOL, SOF, res judicata, self-defense

Rule 12(b) defenses can be pleaded as affirmative defenses

If the defendant fails to assert an affirmative defense in the answer, the court may create it as waived, subject to the timing rules in Rule 12

Question 15

Response by Plaintiff

Answer 15

When a defendant asserts an affirmative defense, there is no need for the plaintiff to respond - the allegations in the defendant’s answer are deemed denied

Question 16

Right to Amend Pleadings by Plaintiff

Answer 16

The plaintiff has a right to amend the complaint once as of course no later than 21 days after the defendant serves her first rule 12 response (motion or answer)

Question 17

Right to Amend Pleadings by Defendant

Answer 17

The defendant has a right to amend his answer once as of course no later than 21 days of serving it

IMPORTANT - the amendment may include committed Rule 12(b) waivable defenses and affirmative defenses if the defendant’s first response was an ANSWER

Question 18

Amendment After Right to Amend Expires

Answer 18

The amending party must seek leave of court or get the written consent of the opposing party

The court will grant leave to amend if justice so requires (will consider length of delay, prejudice to other party, futility of amendment)

Question 19

Variance

Answer 19

applies 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 conform to the evidence

NOTE: this can happen during or after trial and even after judgment

Question 20

Relation Back (SOL)

Answer 20

Relation back means the amended pleading is treated as though it was filed when the original was filed, so it can avoid a statute of limitation problem

Question 21

Relation Back to Join a Claim

Answer 21

An amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading

Question 22

Relation Back to change a Defendant

Answer 22

the amendment will relate back if:
1- the amendment concerns the same conduct, transaction, or occurrence as the original;
2- the defendant to be brought in had such knowledge of the action that she will not be prejudiced; and
3- the defendant to brought in knew or should have known that, but for a mistake, she would have been named originally

KNOWLEDGE - the knowledge by the defendant to be brought in must have come within the period for service of process (90 days after filing of the complaint)

Question 23

Supplemental Pleadings

Answer 23

Supplemental pleadings set forth things that occurred after the pleadings were filed

there is no right to file supplemental pleadings

you must make a motion which is within the discretion of the trial court to grant

Question 24

Rule 11 Signature Requirement

Answer 24

Rule 11 applies to all papers except for discovery

Question 25

Rule 11 Certification

Answer 25

When the lawyer or pro se signs documents, she certifies that, to the best of her knowledge, information, and belief after reasonable inquiry:

1- that paper is not presented for any improper purpose (harassment, delay);
2- the legal contentions are warranted by existing law, a non-frivolous argument to modify and existing law or establishment of a new law; and
3- the factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

Question 26

Continuing Certification

Answer 26

A party makes the rule 11 certification each time she later advocates a position contained in a paper

Question 27

Sanctions for Violation of Rule 11

Answer 27

The court has discretion to impose sanctions for violations of rule 11 to deter a repeat of that conduct (they may be imposed against the party, lawyer, and/or lawyer’s firm)

Sanctions may consist of non monetary directives or monetary penalties (monetary are often paid to the court)

The court can raise a rule 11 violation on its own (sua sponte) by issuing an order to show cause

Question 28

Sanctions by Party’s Motion

Answer 28

A party may motion for sanction if they believe the other party has violated rule 11

SAFE HARBOR - the moving party must first serve the motion on the other party first.
the other party has 21 days from service to fix the problem and avoid sanctions
if the party does not, then the motion can be filed with the court

Question 29

Opportunity to be Heard (sanctions)

Answer 29

Whether sua sponte or on motion, the court must give the violating party an opportunity to be heard before imposing sanctions