Pleadings Flashcards
Complaint
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
Detail Required in Complaint
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)
Defendant’s Response
Rule 12 requires the defendant to respond in one of two ways:
1) by motion
2) by answer
Timing for Defendant’s Response
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.
What are motions
motions are not pleadings, they are requests for a court order
Motions Addressing Issues of Form
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)
Waivable Defenses Under Rule 12(b)
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
Rule 12(b) Defenses that can be Raised as late as at trial
1- Failure to state a claim
2- failure to join an indispensable party
Rule 12(b) Defenses that can be Raises at Any Time
Lack of subject matter jurisdiction (can even be raised for the first time on appeal)
Denial of a Rule 12 Motion
if a defendant’s rule 12 motion is denied, she must serve her answer no later than 14 days after the notice of denial
what is the answer
a pleading
Two things Answer Must Do
1- Respond to allegations in the complaint
2- Raise Affirmative Defenses
Responding to Allegation in Complaint
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
Raising Affirmative Defenses
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
Response by Plaintiff
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
Right to Amend Pleadings by Plaintiff
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)
Right to Amend Pleadings by Defendant
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
Amendment After Right to Amend Expires
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)
Variance
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
Relation Back (SOL)
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
Relation Back to Join a Claim
An amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading
Relation Back to change a Defendant
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)
Supplemental Pleadings
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
Rule 11 Signature Requirement
Rule 11 applies to all papers except for discovery
Rule 11 Certification
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
Continuing Certification
A party makes the rule 11 certification each time she later advocates a position contained in a paper
Sanctions for Violation of Rule 11
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
Sanctions by Party’s Motion
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
Opportunity to be Heard (sanctions)
Whether sua sponte or on motion, the court must give the violating party an opportunity to be heard before imposing sanctions
