Pleadings Flashcards
Service of process timing
Within 90 days after filing complaint.
Methods of service for individual
(1) Personal service
(2) At D’s abode with a person of suitable age/discretion who lives there
(3) Delivering to D’s agent
Service on corporations/associations
To officer or agent, or by following state law.
Waiver of service requirements
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.
Waiver of service effect
Extends time to serve answer from 21 days (after service of process) to 60 days (after waiver request sent–90 if foreign).
Temporary restraining order
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.
Motion to dissolve TRO
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.
Preliminary injunction
Issued prior to a full hearing on the merits, upon notice to D.
When may a preliminary injunction be issued to a plaintiff?
(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
Permanent injunction
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.
Complaint requirements and timing
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.
Motions against the complaint
(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
Rule 12(b) motion to dismiss bases
(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)
“Omnibus motion” rule
A motion raising one of a lack of SMJ or lack of PJ but omitting the other waives the excluded defense.
Rule 12(b)(6) motion to dismiss
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.
Motion for judgment on the pleadings
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.
Motion to strike
When pleading contains insufficient defense, or redundant/immaterial or scandalous material.
Court can then strike such material or defense.
Amending a motion
Generally allowed by courts if party acts promptly.
Admissions/denials in answer
Answer must admit/deny P’s allegations, or plead lack of sufficient knowledge (w/ reasonable investigation).
Affirmative defenses in answer
D must state them or they are waived.
Timing of answer
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.
Reply by P to D’s answer timing
Within 21 days after being served with order to reply.
When may a party amend a pleading?
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.
When should a court freely give leave to amend a pleading?
When justice so requires and will not result in undue prejudice to opposing party.
Relation back of amendment with new claim
Relates back to date of original pleading IF amendment asserts new claim/defense that arose from the same conduct/occurrence as original pleading.
Relation back of amendment with a new party
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.
Time to respond to amendments
Within 14 days after service of amended pleading or time left on original pleading, whichever is later.
Certification of pleadings
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.
