Pleadings Flashcards
How can you get a waiver for service?
Request for waiver must be in writing and addressed to individual D, or officer/agent of coloration, and must give D reasonable time of at least 30 days after request sent to return waiver
What is the timing and method of service for individuals and corporations/associations regarding the service of process?
Timing
-> within 90 days after filing complaint with court
Methods of service for individual can be done by delivering service of process to the
-> D by following the rules of the state where the court sits OR where service is made
OR
-> D personally (or delivering to D’s agent)
OR
-> to the D’s usual place of abode AND left with a person of suitable age/discretion who resides there
Service on corporations/associations
-> to officer or agent, or by following state law
Does failure to file proof-of-service affidavits impacts the validity of the service?
However, failure to prove service of process does not affect the validity of the service.
Who can carry out a service of process?
Service of process can be made by any person who is at least 18 years old and not a party to the suit.
What does the waiver of service do?
Extends time to serve answer from 21 (normally after service of process) to 60 days (after the waiver request is sent)
If it’s to a foreign D and they accept waiver of service then it’s 90 days for the to serve their answer.
What is the goal and effect of a temporary restraining order?
Goal is to preserve the status quo until an opportunity for a full hearing
Effective for a limited time (no longer than 14 days unless good cause exists or adversary consents)
Can a TRO be issued without notice to the adverse party?
Yes.
May be issued without notice to adverse party if immediate and irreparable injury will result
AND
Movant’s attorney certifies efforts made to give notice and provides the reason why notice should not be required.
Is a TRO immediately appealable?
generally not
How does a motion to dissolve the TRO work?
If a TRO is issued without notice, the adverse party may appear and move to dissolve or modify the TRO (must give two days’ notice unless the court sets a shorter time).
When can a preliminary injunction be issued?
Issued prior to a full hearing on the merits, upon notice to the D
May be issued to a P if:
-> P is likely to succeed on the merits
-> P is likely to suffer irreparable harm in the absence of relief (meaning it is unlikely that the party seeking the injunction can get monetary relief)
-> balance of equities in in P’s favor
AND
-> injunction is in the public interest
What is a permanent injunction?
How is it different to a preliminary injunction?
Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution
Same standard as for PI but P must show actual success on the merits
What is the federal rule regarding a complaint?
What is the timing rule for a complaint?
It must be short/plain statements of court’s subject-matter jurisdiction and P’s claim establishing entitlement to relief, and demand for judgment for relief sought (notice pleading)
Filing generally occurs before service, service generally within 90 days of filing.
When must motions against the complaint be filed?
Within 21 days of service
What are the different defenses under rule 12(b) motion to dismiss? When must each be raised?
Lack of SMJ
-> can be raised at any time
Lack of PJ, improper venue, insufficient process or service
-> can be raised in pre-answer motion or answer, or within time to amend answer as of right; otherwise waived
Failure to state a claim upon which relief can be granted and failure to join necessary/indispensable party
-> can be raised in any pleading, motion for judgment on pleadings, or at trial
-> waived if not asserted before end of trial
What is the “omnibus motion” rule?
Motion raising one of these defenses
-> lack of PJ, improper venue, insufficient process or service
But omitting the others waives the excluded defenses
How does a rule 12(b)(6) motion to dismiss work?
In whose favor will the court treat the facts, doubts, and inferences?
Claim will be dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support cognizable claim.
The court treats well-pleaded facts as true, resolves doubts/inferences in P’s favor, and views pleading in light most favorable. to P.
What is the required level of strength of fats under the rule 12(b)(6) motion to dismiss?
Must raise right to relief above speculation, assuming that allegations in complaint are true; and raise reasonable expectation that discovery will reveal evidence of necessary element.
What can the court consider in a Rule 12(b)(6) motion to dismiss?
Only allegations and attached exhibits in the complaint.
What is the court’s two step analysis when reviewing the Rule 12(b)(6) motion to dismiss?
Identify and reject legal conclusions unsupported by factual allegations
Assume truth/veracity of well-pleaded facts. and include context specific analysis that draws on court’s judicial experience and common sense to determine if allegations plausibly give rise to relief.
What is a motion for judgment on the pleadings (rule 12(c))?
After answer filed, allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on content of pleadings.
What is a motion for more definite statement?
Responding party may move for ore definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading.
How does a motion to strike work?
When pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material. - court may order such defense or material stricken.
Can be used to avoid unnecessary time and money in litigating invalid issues.
How does amending a motion work?
Not specifically provided for in the Rules, but generally allowed by courts if the party acts promptly.
In an answer, what can a D do?
What if these things are not in the answer or in the amendment to the answer?
Admission/denial
-> answer must admit/deny P’s allegations, or plead lack of sufficient knowledge (with reasonable investigation)
Motions that have not already been waived.
Raise affirmative defenses
-> assertions that can negate or reduce liability even if every element of the opposing party’s claim is proven (e.g., the statute of frauds)
Compulsory counterclaims
NOTE: -> D must state them or they are deemed waived
