Pleadings

Question 1

Service of process timing

Answer 1

Within 90 days after filing complaint.

Question 2

Methods of service for individual

Answer 2

(1) Personal service
(2) At D’s abode with a person of suitable age/discretion who lives there
(3) Delivering to D’s agent

Question 3

Service on corporations/associations

Answer 3

To officer or agent, or by following state law.

Question 4

Waiver of service requirements

Answer 4

Must be in writing and addressed to individual D, or officer/agent of corporation.

Must give D reasonable time (min 30 days) after request sent to return waiver.

Question 5

Waiver of service effect

Answer 5

Extends time to serve answer from 21 days (after service of process) to 60 days (after waiver request sent–90 if foreign).

Question 6

Temporary restraining order

Answer 6

Injunction that preserves the status quo until an opportunity for full hearing. Effective for no more than 14 days unless good cause/consent.

No notice needed if immediate injury will result and attorney certifies efforts made to give notice.

Question 7

Motion to dissolve TRO

Answer 7

If issued without notice, the adverse party may appear and move to dissolve or modify the TRO.

Must give 2 days notice unless court sets shorter time.

Question 8

Preliminary injunction

Answer 8

Issued prior to a full hearing on the merits, upon notice to D.

Question 9

When may a preliminary injunction be issued to a plaintiff?

Answer 9

(1) P is likely to succeed on the merits
(2) P is likely to suffer irreparable harm in absence of relief
(3) Balance of equities is in P’s favor, AND
(4) Injunction is in the public interest

Question 10

Permanent injunction

Answer 10

Once issued, continues until dissolved by the court, but any affect person may move for modification or dissolution.

Same standards as for PI but P must show actual success on the merits.

Question 11

Complaint requirements and timing

Answer 11

Requires short/plain statements of court’s SMJ and P’s claim establishing entitlement to relief + demand for judgment for relief sought.

Filing generally occurs before service; service generally within 90 days of filing.

Question 12

Motions against the complaint

Answer 12

(1) 12(b) motion to dismiss
(2) 12(b)(6) motion to dismiss
(3) Motion for judgment on the pleadings
(4) Motion for more definite statement
(5) Motion to strike

Question 13

Rule 12(b) motion to dismiss bases

Answer 13

(1) Lack of SMJ (can be raised at any time)
(2) Lack of PJ, improper venue, insufficient process/service (raised in pre-answer motion or answer, otherwise waived)

Question 14

“Omnibus motion” rule

Answer 14

A motion raising one of a lack of SMJ or lack of PJ but omitting the other waives the excluded defense.

Question 15

Rule 12(b)(6) motion to dismiss

Answer 15

Dismissed if claim fails to assert legal theory of recovery cognizable at law, or allege facts sufficient to support a claim.

Facts must raise right to relief above speculation assuming allegations in complaint are true.

View facts in light most favorable to P.

Question 16

Motion for judgment on the pleadings

Answer 16

After answer filed, allows court to dispose of a case when:

(1) material facts are not in dispute and
(2) judgment on merits can be achieved based on content of pleadings.

Question 17

Motion to strike

Answer 17

When pleading contains insufficient defense, or redundant/immaterial or scandalous material.

Court can then strike such material or defense.

Question 18

Amending a motion

Answer 18

Generally allowed by courts if party acts promptly.

Question 19

Admissions/denials in answer

Answer 19

Answer must admit/deny P’s allegations, or plead lack of sufficient knowledge (w/ reasonable investigation).

Question 20

Affirmative defenses in answer

Answer 20

D must state them or they are waived.

Question 21

Timing of answer

Answer 21

Must ordinarily be served within 21 days of service of the pleading to which it responds.

IF D agrees to waive service of process, answer due within 60 days of when request for waiver was sent (90 days if foreign D).

IF D files motion to dismiss and court denies, answer due 14 days after notice of court’s action.

Question 22

Reply by P to D’s answer timing

Answer 22

Within 21 days after being served with order to reply.

Question 23

When may a party amend a pleading?

Answer 23

Once as a right no later than 21 days after serving pleading IF no responsive pleading required.

Otherwise during/after trial if it conforms to evidence and opposing party has opportunity to prepare.

Question 24

When should a court freely give leave to amend a pleading?

Answer 24

When justice so requires and will not result in undue prejudice to opposing party.

Question 25

Relation back of amendment with new claim

Answer 25

Relates back to date of original pleading IF amendment asserts new claim/defense that arose from the same conduct/occurrence as original pleading.

Question 26

Relation back of amendment with a new party

Answer 26

Relates back to date of original pleading IF:

(1)amendment asserts claim/defense arising out of same conduct.

(2) new party must receive notice within 90 days after original complaint filed, and

(3) D knew or should have known about action but for mistake concerning proper party’s identity.

Question 27

Time to respond to amendments

Answer 27

Within 14 days after service of amended pleading or time left on original pleading, whichever is later.

Question 28

Certification of pleadings

Answer 28

Pleadings and other documents (motions, discovery requests) must be signed by an attorney of record and provide the attorney’s contact info.

Violations can lead to dismissal or Rule 11 sanctions.