Pleadings

Question 1

How can you get a waiver for service?

Answer 1

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

Question 2

What is the timing and method of service for individuals and corporations/associations regarding the service of process?

Answer 2

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

Question 3

Does failure to file proof-of-service affidavits impacts the validity of the service?

Answer 3

However, failure to prove service of process does not affect the validity of the service.

Question 4

Who can carry out a service of process?

Answer 4

Service of process can be made by any person who is at least 18 years old and not a party to the suit.

Question 5

What does the waiver of service do?

Answer 5

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.

Question 6

What is the goal and effect of a temporary restraining order?

Answer 6

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)

Question 7

Can a TRO be issued without notice to the adverse party?

Answer 7

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.

Question 8

Is a TRO immediately appealable?

Answer 8

generally not

Question 9

How does a motion to dissolve the TRO work?

Answer 9

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).

Question 10

When can a preliminary injunction be issued?

Answer 10

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

Question 11

What is a permanent injunction?

How is it different to a preliminary injunction?

Answer 11

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

Question 12

What is the federal rule regarding a complaint?

What is the timing rule for a complaint?

Answer 12

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.

Question 13

When must motions against the complaint be filed?

Answer 13

Within 21 days of service

Question 14

What are the different defenses under rule 12(b) motion to dismiss? When must each be raised?

Answer 14

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

Question 15

What is the “omnibus motion” rule?

Answer 15

Motion raising one of these defenses
-> lack of PJ, improper venue, insufficient process or service

But omitting the others waives the excluded defenses

Question 16

How does a rule 12(b)(6) motion to dismiss work?

In whose favor will the court treat the facts, doubts, and inferences?

Answer 16

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.

Question 17

What is the required level of strength of fats under the rule 12(b)(6) motion to dismiss?

Answer 17

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.

Question 18

What can the court consider in a Rule 12(b)(6) motion to dismiss?

Answer 18

Only allegations and attached exhibits in the complaint.

Question 19

What is the court’s two step analysis when reviewing the Rule 12(b)(6) motion to dismiss?

Answer 19

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.

Question 20

What is a motion for judgment on the pleadings (rule 12(c))?

Answer 20

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.

Question 21

What is a motion for more definite statement?

Answer 21

Responding party may move for ore definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading.

Question 22

How does a motion to strike work?

Answer 22

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.

Question 23

How does amending a motion work?

Answer 23

Not specifically provided for in the Rules, but generally allowed by courts if the party acts promptly.

Question 24

In an answer, what can a D do?

What if these things are not in the answer or in the amendment to the answer?

Answer 24

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

Question 25

What happens when D neither admits or denies an allegation from P’s complaint?

Does the same happen when D neither admits nor denies damages-related allegations from P’s complaint?

Answer 25

A defendant’s answer must include admissions or denials of each allegation in the plaintiff’s complaint. A failure to deny these allegations generally results in them being admitted and conclusively established.

However, damages-related allegations cannot be admitted by the defendant’s failure to deny them in an answer.

Question 26

What is service under Rule 5 do?

Answer 26

Service to a party with an attorney requires the service be made to attorney in accordance with Rule 5.

Question 27

When can you no longer use a motion to dismiss?

Answer 27

21 days after being served with summons and complaint or 60 days if D timely waived (or 90 days if D timely waived and is a foreign party)

Question 28

Must a D file an answer while a motion to dismiss is pending?

How quickly after decision on the motion to dismiss must the D file an answer?

Answer 28

No filing while motion is pending

14 days after notice of court’s action

Question 29

When must a P reply to D’s answer?

Answer 29

A response is done by P to D’s answer within 21 days after being served with COURT ORDER to reply (a response isn’t a right but only based on a court order).

Question 30

If the court orders P to reply to D’s answer, what must P do in their reply? If they fail to do such, what is P doing?

Does the above answer change if the court does not order the P to reply?

Answer 30

If the court orders a reply, the plaintiff may be ordered to respond to any allegation in the answer—including an affirmative defense (e.g., novation).
AND
Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff.

But when a reply is not required (as seen here), then the plaintiff is deemed to deny any allegation in the defendant’s answer

Question 31

When does a party have the right to amend a pleading?

Answer 31

Once as of right no later than 21 days after serving it if no responsive pleading is required.

OR

After being served with an answer or 12(b) motion.

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

Question 32

When can a party be granted leave to amend a pleading?

Answer 32

Court should freely give leave to amend a pleading when justice so requires and will not result in undue prejudice to opposing party.

Question 33

When does a new claim relate back to the date of the original pleading?

Answer 33

New claim relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading.

Question 34

When does a new party relate back to the date of the original pleading?

Answer 34

A new party relates back to the date of original pleading IF

-> amendment asserts claim/defense that arose out of same conduct, transaction or occurrence as original pleading

-> new party receives notice of action within 90 days after original complaint filed
AND
-> D knew or should have known about action would be Brough against D, but for mistake concerning proper party’s identity

Question 35

How much time do you get to respond to an amendment?

Answer 35

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

UNLESS the court stipulates otherwise.

Question 36

What are supplemental pleadings?

Answer 36

It a pleading used to describe events occurring after filing of earlier pleading.

Question 37

What are Rule 11 sanctions and what don’t they apply to?

Answer 37

Court may impose sanctions limited to what suffices to deter repetition of conduct by other similarly situated.

Does not apply to mandatory disclosures and discovery requests, nor responses and objections.

Question 38

What type of Rule 11 sanctions are there?

Answer 38

Non-monetary directives
Penalties to court

OR

If imposed on motion, payments to movant for attorney’s fees and other expenses directly resulting from violation.

Question 39

When can sanction proceedings be initiated?

Answer 39

Sanction proceedings can be initiated
-> by a party’s motion
OR
-> on the court’s own initiative—so long as the judge issues an order to show cause.

Question 40

What is the safe-harbor rule relating to sanctions?

Answer 40

When sanction proceedings are initiated by a party’s motion, the safe-harbor rule requires the party serving the motion to refrain from filing it for 21 days after serving it to allow any violation to be corrected (e.g., by dismissing a claim).