Pleadings Flashcards
In federal court, what commences an action?
The filing of the Complaint
What must be included in a Complaint?
- A statement for grounds of SMJ
- A short and plain statement of the claim showing that the P is entitled to relief; AND
- A demand for relief sought (damages, injunction, declaratory judgment, etc.
The P need NOT allege grounds for PJ or venue
What level of detail is required in a Complaint?
The P must plead sufficient facts to support a plausible claim
However, fraud, mistake, and special damages require particularity/specificity
Rule 2 requires a Defendant to respond in one of two ways
(1) motion or (2) answer
What are motions?
Requests for a court order—NOT a pleading
Rule 12(e) motion for more definite statement
Used when the complaint is so vague or ambiguous the D simply cannot respond; must make this motion before answering
RUle 12(f) motion to strike
Asks the court to remove redundant or immaterial things from a pleading (complaint, answer, etc.)
Who can move to strike?
Any party can move to strike
Rule 12(b) Waivable Defenses
(1) A lack of personal jurisdiction
(2) Improper venue
(3) Improper process
(4) Improper service of process
12(b) Motions that can be raised later
Raised up until at trial:
Failure to state a claim
Failure to join an indispensable party
Raised ANY TIME
Lack of SMJ
Denial of Rule 12 Motion
If motion, for example to dismiss, is denied, D must serve answer no later than 14 days after notice of the denial
What does the D do in the answer (a pleading)?
- Respond to the allegations in the complaint: admit and deny allegations or state they have sufficient knowledge
- Raise affirmative defenses
Must Plaintiff respond to affirmative defense?
No! Presumed denied by P
Right to Amend: Timely
Plaintiff has right to amend complaint ONCE no later than 21 days after D first Rule 12 response
Defendant has right to amend answer ONCE no later than 21 days of serving it
Right to Amend after “Expiration”
The amending party must seek leave of court or get the written consent of the opposing party. The court will grant leave to amend if “justice so requires” and will consider factors such as the length of delay, prejudice to the other party, and futility of amendment
What is variance?
Variance comes up with 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
Amendment After SoL has RUn (“Relation Back”)
- To join a claim not originally asserted - “related back” - treat the amended pleading as though it was filed when the original was filed, so it can avoi a SoL problem
- To change a defendant, an amendment will relate back if:
(a) the amendment concerns the same conduct, transaction, or occurrence as the original;
(b) the defendant had such knowledge of the case such that she will be able to avoid prejudice; and
(c) the defendant knew or should have known that, bur for a mistake, she would have been named originally
Is there a right to file a supplemental pleading?
No, you must make a motion for approval and it is at the discretion of the trial court
Rule 11 Signature Requirement
Signature certifies to best of knowledge and belief after reasonable inquiry that:
- The paper is not for improper purpose
- The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
- The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation
What are sanctions?
Sanctions deter a repeat of conduct and can be imposed against the party, the lawyer, and/or the lawyer’s firm.
BEFORE GIVING SANCTION, court must give the sanctioned party an opportunit to be heard
Types of Sanctions
Non-moneary (like required PR classes) or monetary (typically paid to court, not other party)
What is a safe harbor provision?
The patty in violation of Rule 11 has a safe harbor or 21 days to fix the problem to avoid sanctions
