Pleadings

Question 1

Filing proof of service

Answer 1

The process server (other than a U.S. or deputy marshal) must then file a proof-of-service affidavit if service was made in the U.S. and not waived by the defendant.
==> However, failure to prove service of process does not affect the validity of the service.

Question 2

SOP to an organization

Answer 2

Delivering summons & complaint to
-officer,
-managing or general agent, or
-authorized agent

& mailing those documents to defendant if required by statute

Question 3

SOP deadline for foreign Ds

Answer 3

The 90-day deadline for service of process applies to defendants in the U.S.

For defendants in a foreign country, most federal courts require that process be served with due diligence.

Question 4

Preliminary Injunction

Answer 4

A temporary court order that commands or prohibits certain actions while the case is pending before the court. This form of equitable relief is extraordinary and granted in limited circumstances since it is issued prior to a full hearing on the merits of the case.

As a result, a federal court may grant a preliminary injunction only when it is established that:

(A) the movant is likely to succeed on the merits

(B) the movant is likely to suffer irreparable harm—i.e., an injury that cannot be compensated by monetary damages—in the absence of relief

(C) the balance of equities is in the movant’s favor—i.e., the harm to the movant absent an injunction outweighs the harm an injunction would cause to the nonmovant(s)—and

(D) the injunction is in the best interests of the public—e.g., enforcement of contractual rights and obligations protects the freedom to contract.

Question 5

Order granting a Prelim Injunction must…

Answer 5

state reasons for issuance

reasonably describe prohibited or commanded acts

andstate terms specifically

Question 6

TRO

Answer 6

A temporary restraining order (TRO) is a court order that commands a party to do or stop doing a specified action for 14 days or until a preliminary-injunction hearing can take place, whichever occurs first.

Unlike a preliminary injunction, a TRO may be issued without a hearing or notice to the adverse party —but only if:
(A) the movant can establish under written oath (i.e., via affidavit or verified complaint) that he/she will suffer immediate and irreparable harm before the nonmovant can be heard and
(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why notice should not be required.

Ct can set a different time period for the TRO, but cannot extend >14d

Question 7

TRO req contents

Answer 7

1. date & hour issued
2. why injury is irreparable
3. why issued without notice
4. promptly filed with clerk & entered into record

PLUS reqs to Prelim Injunction:
1. State reasons issued
2. Reasonably describe acts restrained or required
3. Specify terms

Question 8

When considering a motion to dismiss for failure to state a claim, the court must

Answer 8

(1) treat all well-pleaded facts in the complaint as true and
(2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant

Question 9

Contents of an answer

Answer 9

Required
1. Admissions & denials
-general
-specific
2. Motions not waived
3. Affirmative defenses
4. Compulsory counterclaims

Permitted
1. Permissive counterclaims
2. Crossclaims

*General denial – a denial of all of the allegations in the complaint, including the grounds for the court’s jurisdiction
*Specific denial – a denial of a particular allegation that is made by denying the allegation, pleading insufficient knowledge to admit or deny it, or admitting part of the allegation and denying or pleading insufficient knowledge to the rest of it

Question 10

Repercussions of answer omissions

Answer 10

Motions/ Affirm Defenses/ Compul Counterclaims ==> are waived

Admission or a failure to deny an allegation ==> generally results in the allegation being admitted and conclusively established.
EXCEPT: allegations related to the amount of damages sought by the plaintiff.
==> The failure to deny these allegations in an answer does not deem them admitted and conclusively established.

Question 11

Allegations in the answer

Answer 11

If the court orders a reply, then the plaintiff must respond to allegations in the defendant’s answer as directed. ==> Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff.

If no reply is ordered, then allegations in the answer are deemed denied by the plaintiff.

Question 12

Types of pleadings

Answer 12

Complaint: Plaintiff’s assertion of cause of action, court’s jurisdiction & demand for relief

Answer: Response to complaint, counterclaim, crossclaim, or third-party complaint that asserts admissions, denials, affirmative defenses & other claims

Third-party complaint: Party’s assertion that nonparty is liable for damages party may owe in original suit based on legal theory (eg, indemnity, contribution)

Reply: Response to answer (only required if court ordered)

Question 13

May a court shorten or extend pleading deadlines?

Answer 13

yes

thus if there is a court order, it superceded FRCP reqs

Question 14

Relation Back Doctrine

Answer 14

An amended complaint filed after the SOL expired is prohibited unless the relation-back doctrine applies.

==? An amendment that changes a defendant “relates back” only SOL allows OR when the following requirements are met:
1. the amendment concerns the same transaction or occurrence as the original complaint
2. the new party received notice of the suit within 90 days after the original complaint was filed and
3. the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party’s identity.

An amended complaint that asserts a new claim “relates back” only if SOL allows OR
1. new claim arises from same transaction or occurrence as og pleading

Question 15

Waiver of SOP

Answer 15

When a plaintiff requests that a defendant in the U.S. waive service of process, the plaintiff must give the defendant at least 30 days to return the waiver.

If the defendant timely waives service of process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent.
** (or 90 days if abroad)
==> in comparison to 21d reg req

Question 16

When may a court impose monetary sanctions

Answer 16

A court can impose monetary sanctions for violations of Federal Rule of Civil Procedure 11(b).

Sanction proceedings can be initiated
(1) by a party’s motion or (2) on the court’s own initiative—so long as the judge issues an order to show cause.

A court can impose sanctions for violations of these provisions but cannot impose a monetary sanction on a party represented by an attorney for a violation of FRCP 11(b)(2).

A court may not impose sanctions against a law firm unless the pleading at issue is signed by a partner.

Question 17

safe-harbor rule

Answer 17

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).

Question 18

When must a P plead w particularity

Answer 18

Pleading special damages: When a plaintiff seeks special damages, the plaintiff is required to plead such damages with specificity

a party alleging fraud must state with particularity the circumstances constituting fraud.

Question 19

Answer deadlines & to who

Answer 19

D has 21 days after being served with the complaint and summons to serve an answer
**unless D responds by filing a pre-answer motion under Rule 12.

An answer generally must be served on plaintiff’s attorney if the plaintiff has an attorney.
==> may be made by leaving it with a person in charge at the attorney’s office.

Question 20

Relation-Back

Answer 20

A pleading (eg, complaint) cannot be amended after the statute of limitations has expired unless the relation-back doctrine applies.

Under this doctrine, an amendment is treated as if it were filed on the same date as the original pleading so that the amendment “relates back” to the date of the original pleading.

(A) New Claim
-allowed by SOL; OR
-new claim arises from same transaction or occurrence

** (B) New Defendant**
-allowed by SOL; OR
-concerns from same transaction or occurrence; AND
i. new party receives notice w/in 90d of og filing
ii. new party new or should have known they’d be sued

Question 21

Harmless Error Rule

Answer 21

Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed **unless the nondisclosure was substantially justified or was harmless. **

Question 22

nonmovant can avoid summary judgment by either:

Answer 22

presenting evidence to support that issue through affidavits, declarations, discovery, or other materials containing admissible evidence or

requesting that the court postpone consideration of the motion until additional discovery can take place and including an affidavit or declaration that describes the desired discovery and why it is needed.

Question 23

Motion for more def statements (inclu deadline)

Answer 23

A party may move for a more definite statement of a pleading that is so vague or ambiguous that the party cannot reasonably draft a responsive pleading.

This motion must

(1) specify the pleading’s defects and the details sought that will cure these defects and

(2) be made before filing a responsive pleading.