Pleadings

Question 1

what must be included in the complaint? (4)

Answer 1

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

Question 2

what claims must be pleaded with extra particularity/specificity?

Answer 2

claims involving fraud, mistake, and special damages

Question 3

what are the types of pre-answer motions under Rule 12(b)? (7)

Answer 3

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

Question 4

what are the two Rule 12 motions addressing form?

Answer 4

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

Question 5

which defenses are WAIVED if not put in the 1st Rule 12 response? (4)

Answer 5

1) lack of PJ
2) improper venue
3) improper process (ie–issue w/ papers, etc)
4) improper service of process

Question 6

which two 12(b) defenses can be raised as late as trial?

Answer 6

1) failure to state a claim
2) failure to join necessary party

Question 7

what 12(b) defense can be raised at ANY time?

Answer 7

lack of subject matter jurisdiction (results in automatic dismissal or remand)

Question 8

what 2 things must the defendant do in their answer?

Answer 8

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))

Question 9

what are restraints on plaintiff’s right to amend?

Answer 9

can amend as of right once AND not later than 21 days after defendant serves first Rule 12 response (answer, motion)

Question 10

what are the restraints on a defendant’s right to amend?

Answer 10

can amend as of right once AND no later than 21 days of service on plaintiff

Question 11

how does a defendant’s right to amend affect their omission of waivable defenses?

Answer 11

if the defendant omitted waivable defense, they CAN amend to include them (exception to Rule 12 timing)

Question 12

how do parties amend after their time to amend as of RIGHT has passed?

Answer 12

amending party must seek leave of court or get the written consent of the opposing party

Question 13

under what circumstances will courts grant a party leave to amend?

Answer 13

where justice so requires (generally permissive)

Question 14

what is “variance”?

Answer 14

where the evidence at trial does NOT match what was pleaded

Question 15

what happens if other party FAILS to object to varying evidence at trial?

Answer 15

party introducing varying evidence may move to amend the complaint to conform to the evidence (evidence then admissible)

Question 16

what happens if the other party DOES object to varying evidence at trial?

Answer 16

varying evidence is NOT admissible

Question 17

when does an amended pleading to join a CLAIM not originally asserted relate back? (SoL)

Answer 17

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)

Question 18

when does an amended pleading to change a DEFENDANT relate back? (SoL)

Answer 18

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

Question 19

when must the defendant have “knowledge” for purposes of relation back?

Answer 19

knowledge must have come within service of process period (90 days after complaint filed)

Question 20

what are supplemental pleadings?

Answer 20

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)

Question 21

under Rule 11, what is an attorney certifying by signing documents? (3)

Answer 21

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

Question 22

what is the purpose of Rule 11 sanctions?

Answer 22

to deter a repeat of conduct

Question 23

what are the main processes for imposing Rule 11 sanctions?

Answer 23

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

Question 24

what is the safe harbor provision of Rule 11 sanctions?

Answer 24

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)

Question 25

what parties can be deposed?

Answer 25

both parties and non parties
**NOTE = parties need not be subpoena’d BUT nonparties must be

Question 26

what are the limits on depositions of nonparties?

Answer 26

nonparties cannot be forced to travel over 100 miles from where they live or work to attend a deposition

Question 27

what must organizations do to properly respond to subpoena for deposition?

Answer 27

must designate a person to testify on the matter (once notice and facts to be sought are provided by party seeking depo)

Question 28

what are the general time and quantity limits on depositions?

Answer 28

party cannot take more than 10 depos and those depos cannot exceed a 7 hour period (without court order or stipulation of parties)

Question 29

for what 3 purposes can depos be used at trial?

Answer 29

1) to impeach deponent
2) for any purpose if deponent is an adverse party
3) for any purpose if deponent is unavailable for trial (unless their absence was procured by the party seeking to introduce the evidence)

Question 30

who can interrogatories be sent to and what’s the general limit on quantity?

Answer 30

only parties (not nonparties) and no more than 25 max (including subparts)

Question 31

when and how must interrogatories be answered?

Answer 31

must be answered within 30 days of service AND must answer based on info reasonably available (have to do some h/w – unlike depos)

Question 32

can interrogatories ask about legal contentions?

Answer 32

yes, these are allowed

Question 33

when can a party responding to interrogatories allow the requesting party to have access to business records (and that be a sufficient response)?

Answer 33

if the answers to interrogatories can be found in business records AND the burden of finding the answer would be about the same for either party

Question 34

what are requests for production (RFPs)?

Answer 34

requests for a party to make available for review and copying docs/ESI/etc OR to permit entry on designated property to inspect, measure, etc

Question 35

when and how must RFPs be responded to?

Answer 35

when = within 30 days of service (stating material to be produced/asserting objections)
how = in the form that the requesting party specifies

Question 36

how can a party get RFP info from a nonparty?

Answer 36

can’t serve RFP BUT can subpoena the nonparty for the same info