Pleadings

Question 1

What does the Complaint do?

Answer 1

Filing of the complaint commences the actions

Question 2

Special pleading requirements for certain cases

Answer 2

Fraud, mistake, and special damages must be plead with more detail - particularity and specificity

Question 3

Content of Complaint

Answer 3

Must contain:
1) SMJ grounds
2) Claim showing P’s entitlement to relief with sufficient facts to support a plausible claim
3) a demand for relief sought

Question 4

Defendant’s response

Answer 4

Either by motion or by answer.

No later than 21 days after being served.

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

Question 5

Motions (Rule 12)

Answer 5

Requests for a court order.

Question 6

Rule 12 Motions Addressing Issues of Form

Answer 6

Rule 12e: motion for a more definite statement when complaint is too vague or ambiguous for a response

Rule 12f: motion to strike - asks ourt to remove redundant or immaterial things from a pleading

Question 7

Waivable Defenses under Rule 12b

Answer 7

Following are WAIVED if not put in the first Rule 12 response (motion or answer):
1) Lack of PJ
2) Improper Venue
3) Improper Process
4) Improper service of process

Question 8

Defenses under Rule 12(b) that can be raised later

Answer 8

Following are NOT waived even if they are not included in the first repsonse:
1) Failure to state a claim and a failure to join an indispensable party (can be made as late as trial)
2) A lack of SMJ (can be raised at any time

Question 9

What if Rule 12 motion is denied?

Answer 9

D must serve answer no later than 14 days after notice of denial

Question 10

Answer

Answer 10

A pleading. D does two things:
1) Responds to allegations
2) Raise affirmative defenses

Question 11

Reponses to allegations in answer

Answer 11

D can admit some or all, deny some or all, or state that she has insufficient knowledge (cannot do this if answer is in her control).

Faikure to deny is an admission except regarding amount of damages.

Question 12

Ps Right to Amend a pleading

Answer 12

P has right to amend complaint ONCE as of course no later than 21 days after the D serves her first Rule 12 response

Question 13

Ds right to amend a pleading

Answer 13

D has right to amend his answer ONCE as of course no later than 21 days after servicing it

Can amend to include rule 12b waivable defenses

Question 14

Amendment after “Right to amend” has expired

Answer 14

Must get approval of court or consent of opposing party.
Court considers length of delay, prejudice to the other party, futility of amendment.

Question 15

Variance between evidence at trial and pleading

Answer 15

If other party fails to object at trial, party introducing may move to amend the complaint to conform to the evidence

Question 16

types of Amendments after statute of limitations has run (“relation back”)

Answer 16

To join a claim not originally asserted

To change a defendant

Question 17

Post-SoL amendment to join a claim not originally asserted

Answer 17

“Relates back” if pleading concerns the same conduct, transaction or occurence as the original pleading.

Question 18

Relation back meaning

Answer 18

Treat amended pleading as thought it was filed when the original was filed, so it can avoid statute of limitations problems.

Question 19

Post-SoL amendment to change a defendant

Answer 19

Relates back if:
1) amendment ocncerns the same conduct, transaction, or occurence as the original
2) D has such knowledge of the case such that she will be able to avoid prejudice; AND
3) D knew or should have known that, but for a mistake, she would have been named originally

Knowledge must have come within the period for service of process (90 days after filing of the complaint). If SoL expires after filing but before service, can still amend!

Question 20

Supplemental Pleadings

Answer 20

Set forth things that happened AFTER pleadings were filed.
Granting is within discretion of the court.

Question 21

Rule 11 Signature requirement

Answer 21

Applies to all papers except discovery.

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

1) Paper is not for an improper purpose
2) The legal contentions are warranted by law or a nonfrivilous argument for a law change; AND
the factual contentions and denails of factual contentions have evidentiary support or are likeley to after furhter investigation

Continuing certifiaction

Question 22

Sanctions

Answer 22

May be imposed if Violation of Rule 11 requirement. Can be non monetary and monetary.

Question 23

Sanctions safe harbor provision

Answer 23

If other party violates Rule 11, opposing party can’t immediatley file for sanctions.

Party serves the motion on other parties, and part in violation has 21 days to fix. If not fixed, then can be filed with court.