Pleadings Flashcards
Content of Complaint
The complaint must contain:
a. A statement of grounds of subject matter jurisdiction;
b. a short and plain statement of the claim showing that the P is entitled to relief; and
c. a demand for relief sought (I.e., damages, injunction, declaratory judgment)
The P need not allege grounds for PJ or Venue
Details Required in Complaint
In stating the claim, the P must plead sufficient facts to support a plausible claim.
To determine plausibility, the judge uses her own experience and common sense.
The D can challenge the complaint by making a 12b6 motion to dismiss for failure to state a claim.
Special Pleading Requirements for Certain Cases
Fraud, mistake, and special damages must be pleaded with more detail; that is, with particularity or specificity.
D’s Reponse
Rule 12 requires the D to respond in one of two ways:
- by motion, or
- by answer
To avoid default, the D must do one of these two things no later than 21 days after being served with process. If the D waived service, the D has 60 days from when the P mailed the waiver form to respond.
Motions (Rule 12)
Motions are not pleadings; they are requests for a court order.
Rule 12 Motions address issues of form.
12(e) - motion for more definite statement
12(f) - motion to strike
Waivable Defenses Under Rule 12(b) - HIGHLY TESTED
Some Rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer). They are:
- lack of personal jx,
- improper venue;
- Improper process ( a problem with the papers); and
- Improper service of process.
Defenses under Rule 12(b) that may be raised later - HIGHLY TESTED
Some defenses under 12(b) are not waived even if they are not included in the first response. They are:
- a failure to state a claim and a failure to join an indispensable party (can be raised as late as trial);
- A lack of subject matter jurisdiction may be raised at any time.
Denial of Rule 12 motion
Suppose the D makes a motion to dismiss under Rule 12 and it is denied. D must then serve her answer no later than 14 days after notice of the denial.
The Answer
An answer is a pleading. The D does two things in the answer:
- Respond to allegations in the complaint (admit, deny, insufficient knowledge to admit or deny); and/or
- Raise Affirmative Defenses - Classic affirmative defenses are SOL, SoF, res judicata, and self-defense.
NOTE - The failure to deny an allegation is an admission except regarding the amount of damages.
NOTE: No response by P required - when teh D asserts an affirmative defense, there is no need for the P to respond, as the allegations in the D’s answer are deemed denied.
Amended Pleadings - Right to Amend
By P - has a right to amend her complaint once as of course no later than 21 days after D serves her first Rule 12 response
By D - has a right to amend his answer once as of course no later than 21 days of serving it. If the D’s first response was an answer, in which he forgot to raise waivable defenses and forgot to raise affirmative defense, he has a right to amend his answer to include the waivable defenses and the affirmative defense.
Amended Pleadings - Amendment After Right to Amend has Expired
After teh period to amend as of right, the amending party must seek leave of court (or get written consent of the opposing party). The court will grant leave to amend if “justice so requires.”
In granting, the court will look at length of delay, prejudice to the other party, and futility of amendment.
Amended Pleadings - Variance
Variance comes up when 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.
Amended Pleadings - Amendment After SoL has Run (Relation Back)
To Join a Claim Not Originally Asserted: An amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading. Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a SoL problem.
To Change a Defendant:
The amendment will relate back if -
- the amendment concerns the same conduct, transaction, or occurrence as the original;
- the D had such knowledge of the case such that she will be able to avoid prejudice; and
- The D knew or should have known that, but for a mistake, she would have been named originally.
The knowledge referenced int eh last two points must have come within the period for service of process (90 days after the filing of the complaint). And, this provision applies when the P sued the wrong D first, but the right D knew about it.
Supplemental Pleadings
Supplemental pleadings set forth things that happened after the pleadings were filed. There is no right to file a supplemental pleading.
You must make a motion; whether that motion is granted is within the discretion of the trial court.
Rule 11 Signature Requirement
Rule 11 applies to all papers except discovery. When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
- the paper is not for an 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.
In addition, a party makes this certification every time she “presents” a position to the court (continuing certification).
