Pleadings Flashcards
what must be included in the complaint? (4)
1) statement of grounds for SMJ
2) short and plain statement of claim (showing the plaintiff is entitled to relief)
3) demand for relief sought
4) sufficient facts to support a plausible claim
what claims must be pleaded with extra particularity/specificity?
claims involving fraud, mistake, and special damages
what are the types of pre-answer motions under Rule 12(b)? (7)
1) lack of SMJ
2) lack of PJ
3) improper venue
4) insufficient process
5) insufficient SERVICE of process
6) failure to state a claim
7) failure to join necessary party
what are the two Rule 12 motions addressing form?
12(e) = motion for more definite statement (complaint so vague defendant can’t respond)
12(f) = motion to strike (court removes redundant/immaterial things from pleadings)
**NOTE = either party can move to strike
which defenses are WAIVED if not put in the 1st Rule 12 response? (4)
1) lack of PJ
2) improper venue
3) improper process (ie–issue w/ papers, etc)
4) improper service of process
which two 12(b) defenses can be raised as late as trial?
1) failure to state a claim
2) failure to join necessary party
what 12(b) defense can be raised at ANY time?
lack of subject matter jurisdiction (results in automatic dismissal or remand)
what 2 things must the defendant do in their answer?
1) respond to the allegations in the complaint (admit/deny/insufficient knowledge), AND
2) raise affirmative defenses (still subject to timing rules of R12(b))
what are restraints on plaintiff’s right to amend?
can amend as of right once AND not later than 21 days after defendant serves first Rule 12 response (answer, motion)
what are the restraints on a defendant’s right to amend?
can amend as of right once AND no later than 21 days of service on plaintiff
how does a defendant’s right to amend affect their omission of waivable defenses?
if the defendant omitted waivable defense, they CAN amend to include them (exception to Rule 12 timing)
how do parties amend after their time to amend as of RIGHT has passed?
amending party must seek leave of court or get the written consent of the opposing party
under what circumstances will courts grant a party leave to amend?
where justice so requires (generally permissive)
what is “variance”?
where the evidence at trial does NOT match what was pleaded
what happens if other party FAILS to object to varying evidence at trial?
party introducing varying evidence may move to amend the complaint to conform to the evidence (evidence then admissible)
what happens if the other party DOES object to varying evidence at trial?
varying evidence is NOT admissible
when does an amended pleading to join a CLAIM not originally asserted relate back? (SoL)
when the pleading concerns the same conduct, transaction, or occurrence as the original pleading (treat the amended pleading as if it was filed when OG was filed – no SoL issue)
when does an amended pleading to change a DEFENDANT relate back? (SoL)
1) amendment concerns the same conduct, transaction, occurrence as the OG pleading
2) defendant has such knowledge of case that they will be able to avoid prejudice, and
3) defendant knew or should have known that, but for mistake, they would have been named originally
when must the defendant have “knowledge” for purposes of relation back?
knowledge must have come within service of process period (90 days after complaint filed)
what are supplemental pleadings?
pleadings that set forth things that happened AFTER the pleadings were filed (court has discretion to grant/deny motion – no right to file supplemental pleadings)
under Rule 11, what is an attorney certifying by signing documents? (3)
certifies that (to the best of her knowledge and belief after reasonable inquiry)…
1) paper is not for an improper purpose
2) legal contentions are warranted by law or a nonfrivolous argument for a law change
3) factual contentions/denials have evidentiary support or are likely to after further investigation
what is the purpose of Rule 11 sanctions?
to deter a repeat of conduct
what are the main processes for imposing Rule 11 sanctions?
1) may be imposed against the party, the attorney, or the attorney’s firm
2) can be raised sua sponte by the court
3) before imposing, court must give the accused party an opportunity to be heard
what is the safe harbor provision of Rule 11 sanctions?
if one party violates Rule 11, opposing party must FIRST serve motion for sanctions on the party BEFORE filing with the court (party now has 21 days to fix the problem); if not fixed, opposing party can file with the court (after those 21 days)
