Pleadings Flashcards
What does the Complaint do?
Filing of the complaint commences the actions
Special pleading requirements for certain cases
Fraud, mistake, and special damages must be plead with more detail - particularity and specificity
Content of Complaint
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
Defendant’s response
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.
Motions (Rule 12)
Requests for a court order.
Rule 12 Motions Addressing Issues of Form
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
Waivable Defenses under Rule 12b
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
Defenses under Rule 12(b) that can be raised later
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
What if Rule 12 motion is denied?
D must serve answer no later than 14 days after notice of denial
Answer
A pleading. D does two things:
1) Responds to allegations
2) Raise affirmative defenses
Reponses to allegations in answer
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.
Ps Right to Amend a pleading
P has right to amend complaint ONCE as of course no later than 21 days after the D serves her first Rule 12 response
Ds right to amend a pleading
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
Amendment after “Right to amend” has expired
Must get approval of court or consent of opposing party.
Court considers length of delay, prejudice to the other party, futility of amendment.
Variance between evidence at trial and pleading
If other party fails to object at trial, party introducing may move to amend the complaint to conform to the evidence
types of Amendments after statute of limitations has run (“relation back”)
To join a claim not originally asserted
To change a defendant
Post-SoL amendment to join a claim not originally asserted
“Relates back” if pleading concerns the same conduct, transaction or occurence as the original pleading.
Relation back meaning
Treat amended pleading as thought it was filed when the original was filed, so it can avoid statute of limitations problems.
Post-SoL amendment to change a defendant
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!
Supplemental Pleadings
Set forth things that happened AFTER pleadings were filed.
Granting is within discretion of the court.
Rule 11 Signature requirement
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
Sanctions
May be imposed if Violation of Rule 11 requirement. Can be non monetary and monetary.
Sanctions safe harbor provision
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.
