Pleadings

Question 1

What does a complaint do and what does it contain?

Answer 1

In federal court, filing the complaint commences the action.

The complaint must contain:

1. A statement of grounds of subject matter jurisdiction;
2. A short and plain statement of the claim showing that the plaintiff is entitled to relief; and
3. A demand for relief sought.

*Don’t need to allege grounds for PJ or venue.

Question 2

What are the pleading requirements for a complaint and how does the judge determine if it has been met?

Answer 2

P must plead “sufficient facts to support a plausible claim.”

A judge uses her own experience and common knowledge to determine if it was plausible.

*D uses 12b6 to challenge this.

Question 3

What kind of cases require special pleading requirements for complaints?

Answer 3

Fraud, mistake, and special damages must be pleaded with “particularity or specificity.”

*On Bar, they can’t just say that they were defrauded.

Question 4

How does a D respond to the complaint and was is the timing requirement?

Answer 4

Rule 12 requires the D to respond by (1) motion or (2) answer.

To avoid default, the D must do either within 21 days after being served.

If D waived service, then D has 60 days from when the P mailed the waiver form to respond.

Question 5

What is a Rule 12(e) motion?

Answer 5

A motion for more definite statement.

It is used when the complaint is so vague or ambiguous the D simply cannot respond.

Must make this motion before answering.

Question 6

What is a Rule 12(f) motion?

Answer 6

A motion to strike.

Asks the court to remove redundant or immaterial things from a pleading.

Any party can move to strike.

Question 7

What are the Rule 12(b) defenses?

Answer 7

1. Super - Subject matter jurisdiction.
2. People - Personal jurisdiction
3. Visit - Venue
4. Paris - Process (Summons and Complaint. Something wrong with the papers)
5. Singing - Service of process
6. Fun - Failure to state a claim
7. Facts - Failure to join a party under Rule 19.

Question 8

Which 12(b) defenses are waivable and what does that mean?

Answer 8

2-5 (3 P’s and the V)

They are waived if not put in the first Rule 12 response (motion or answer) whichever comes first.

Question 9

Which 12(b) defenses are not waived even if they are not included in the first response?

Answer 9

12(b)(1) - SMJ (can be raised at any time).

12(b)(6) - Failure to state a claim (can be made as late as at trial).

12(b)(7) - Failure to join an indispensable party under Rule 19 (can be made as late as at trial).

Question 10

What should the D do if the their Rule 12 motion is denied?

Answer 10

The D must serve her answer within 14 days after notice of the denial.

Question 11

Is a motion a pleading? A complaint? An a answer?

Answer 11

Complaints and answers are pleadings.

Motions are not pleadings; they are request for a court order.

Question 12

What two things does the D do in the answer?

Answer 12

1. Respond to the Allegations in the Complaint.
2. Raise Affirmative Defenses.

Question 13

in the answer, in what ways can the D respond to the allegations contained in the complaint?

Answer 13

1. Admit some or all allegations.
2. Deny some or all allegations.
3. State that she has “insufficient knowledge” to admit or deny some or all of the allegations. (Has effect of a denial, but can’tdo this if the answer to the allegation is in her control = if in your files, then have to look it up).

Note: Failure to deny an allegation is an admission except regarding the amount of damages.

Question 14

What are the Affirmative Defenses that a D can raise in her answer?

Answer 14

Affirmative defenses inject a new fact into the case that would allow the defendant to win.

• Statute of limitations, Statute of Frauds, res judicata, and self-defense.
• All Rule 12(b) defenses can be pleaded as affirmative defenses. (Assumes answer is first response).

If the defendant fails to assert an affirmative defense in the answer, the court may treat it as waived subject to the timing rules in Rule 12 (such as SMJ, 12b6, etc).

Question 15

Does the P have to responed to the D’s answer?

Answer 15

No. When the D asserts an affirmative response, there is no need for the P to respond. (Allegations in D’s answer are deemed denied).

Question 16

In what 4 circumstances can pleadings be amended?

Answer 16

1. Right to Amend.
2. Amendment after “right to amend” has expired.
3. Variance.
4. Amendment after Statute of Limitation has run. “Relation Back.”

Question 17

When can an pleading be amended “as a right?”

Answer 17

P: Right to amend complaint once as of course no later than 21 days after the D has served her first Rule 12 response.

D: Right to amend his answer once as of a course no later than 21 days after serving it. (If D’s first reponse was an answer, and he forgot to raise “waivable defenses” and an affirmative defense, he has right to include them here).

Question 18

How can a party amend their pleading after the “right to amend” has expired?

Answer 18

Party must (1) seek leave of court or (2) get the written consent of the opposing party.

Court will grant leave to amend if “justice so requires.” Factors include: length of delay, prejudice to the other party, and fuitlity of amendment.

Question 19

What is variance and how can a pleading be amended through it?

Answer 19

Variance comes up 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 (when? at any time? until when can they move?).

Question 20

How can a party amend a pleading after the statute of limitations has run? (Relation Back)

Answer 20

1. To Join a Claim not Originally Asserted: An amended pleading “relates back” if the pleading concerns the same conduct, transaction, or occurrence as the original pleading. Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem. (statute of limitations didn’t run because you tie it in the the original).
2. To Change a D: Amendment will relate back if:
   * The amendment concerns the same conduct, transaction, or occurrence as the original;
   * The D had such knowledge of the case such that she will be able to avoid prejudice; and
   * The D knew or should have known that, but for a mistake, she would have been named originally.

*The knowledge referenced in the last two points must have come within the period for service of process (90 days after the filing of the complaint). And, this provision applies when the plaintiff sued the wrong defendant first, but the right defendant knew about it.

Question 21

What is a Supplemental Pleading?

Answer 21

Set forth things that happened AFTER the pleadings were filed.

No right to make one; you must make a motion, and whether to grant that motion is within the discretion of the court.

*NOT an amendment. Something new. (after can filed for breach of contract, D punches P in the nose and the P files to add a tort claim).

Question 22

What is Rule 11?

Answer 22

The Signature Requirement. The lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, “after reasonable inquiry”:

1. The paper is not for an improper purpose;
2. The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
3. The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.

*In addition, a party makes this certification every time she “presents” a position to the court (for example, when she later advocates a position taken in the document). It is a “continuing certification.”

Question 23

When does Rule 11 apply?

Answer 23

Rule 11 applies to all papers except discovery (which are treated by a different, similar rule).

Question 24

What is the purpose of Rule 11 sanctions and who are they imposed against?

Answer 24

The purpose of sanctions is to deter a repeat of the conduct.

Sanctions may be imposed against the party, the lawyer, and/or the lawyer’s firm. (As a general rule, a law firm is jointly responsible with its attorney who violates Rule 11.)

Question 25

Can the court raise Rule 11 violations on its own?

Answer 25

Yes. The court can also raise Rule 11 violations “sua sponte” (on its own motion).

The court does this by issuing an order to show cause why sanctions should not be imposed.

But before imposing a sanction, regardless of who filed the motion, the court must give the sanctioned party an opportunity to be heard.

Question 26

What types of Rule 11 sanctions are there?

Answer 26

Non-monetary sanctions (such as requiring the lawyer to attend professionalism classes).

Monetary sanctions, if imposed, are often paid to court, not to the other party.

Question 27

What is the Safe Harbor provision of Rule 11?

Answer 27

If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions.

Rather, she serves the motion on other parties but does not file it with the court yet. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed with the court.