Pleadings

Question 1

In federal court, what commences an action?

Answer 1

The filing of the Complaint

Question 2

What must be included in a Complaint?

Answer 2

1. A statement for grounds of SMJ
2. A short and plain statement of the claim showing that the P is entitled to relief; AND
3. A demand for relief sought (damages, injunction, declaratory judgment, etc.

The P need NOT allege grounds for PJ or venue

Question 3

What level of detail is required in a Complaint?

Answer 3

The P must plead sufficient facts to support a plausible claim

However, fraud, mistake, and special damages require particularity/specificity

Question 4

Rule 2 requires a Defendant to respond in one of two ways

Answer 4

(1) motion or (2) answer

Question 5

What are motions?

Answer 5

Requests for a court order—NOT a pleading

Question 6

Rule 12(e) motion for more definite statement

Answer 6

Used when the complaint is so vague or ambiguous the D simply cannot respond; must make this motion before answering

Question 7

RUle 12(f) motion to strike

Answer 7

Asks the court to remove redundant or immaterial things from a pleading (complaint, answer, etc.)

Question 8

Who can move to strike?

Answer 8

Any party can move to strike

Question 9

Rule 12(b) Waivable Defenses

Answer 9

(1) A lack of personal jurisdiction

(2) Improper venue

(3) Improper process

(4) Improper service of process

Question 10

12(b) Motions that can be raised later

Answer 10

Raised up until at trial:

Failure to state a claim
Failure to join an indispensable party

Raised ANY TIME
Lack of SMJ

Question 11

Denial of Rule 12 Motion

Answer 11

If motion, for example to dismiss, is denied, D must serve answer no later than 14 days after notice of the denial

Question 12

What does the D do in the answer (a pleading)?

Answer 12

1. Respond to the allegations in the complaint: admit and deny allegations or state they have sufficient knowledge
2. Raise affirmative defenses

Question 13

Must Plaintiff respond to affirmative defense?

Answer 13

No! Presumed denied by P

Question 14

Right to Amend: Timely

Answer 14

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

Question 15

Right to Amend after “Expiration”

Answer 15

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

Question 16

What is variance?

Answer 16

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

Question 17

Amendment After SoL has RUn (“Relation Back”)

Answer 17

1. 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
2. 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

Question 18

Is there a right to file a supplemental pleading?

Answer 18

No, you must make a motion for approval and it is at the discretion of the trial court

Question 19

Rule 11 Signature Requirement

Answer 19

Signature certifies to best of knowledge and belief after reasonable inquiry that:

1. The paper is not for improper purpose
2. The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
3. The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

Question 20

What are sanctions?

Answer 20

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

Question 21

Types of Sanctions

Answer 21

Non-moneary (like required PR classes) or monetary (typically paid to court, not other party)

Question 22

What is a safe harbor provision?

Answer 22

The patty in violation of Rule 11 has a safe harbor or 21 days to fix the problem to avoid sanctions