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July Exam - Civil Procedure > Pleadings > Flashcards

Pleadings Flashcards

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Civil Procedure 1L flashcards
1
Q

Complaint - Content

A

Must contain:
- statement of grounds of subject matter jurisdiction
- short + plain statement of the claim showing that the plaintiff is entitled to relief AND
- demand for relief sought (ex: damages, injunction, declaratory judgment)

  • pl need NOT allege grounds for PJ or venue
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2
Q

Details Required in the Complaint

A
  • pl must plead facts sufficient to support a plausible claim
  • to determine plausibility, judge uses own experience + common sense
  • def can challenge complaint by making a rule 12(b)(6) motion to dismiss for failure to state a claim
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3
Q

Special Pleading Requirements for Certain Cases

A
  • fraud, mistake, + special damages must be pleaded with more detail
    -> with particularity + specificity
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4
Q

Defendant’s Response - Overview

A

Must respond in one of two ways:
1) by motion OR
2) by answer

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5
Q

Defendant’s Response - Timing

A
  • to avoid default, def must respond no later than 21 days after being served w/ process
    -> if def waived service, they have 60 days from when pl mailed waiver form to respond
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6
Q

Motions - Basic Concept

A
  • NOT pleadings
  • they are requests for a court order
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7
Q

Motions Addressing Issues of Form

A
  • covered by Rule 12
  • 12(e): motion for more definite statement -> used where complaint is so vague + ambiguous that def can’t respond (must make before answering)
  • 12(f): motion to strike -> asks court to remove redundant or immaterial things from a pleading
    -> any party can move to strike
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8
Q

Waivable Defenses - General Concept

A
  • covered by Rule 12(b)
  • “3 Ps and a V”
  • waived if not put in first Rule 12 response (motion or answer)
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9
Q

Waivable Defenses - List

A
  • lack of PJ
  • improper venue
  • improper process (problem with the papers) AND
  • improper service of process
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10
Q

Non-Waivable Defenses

A
  • also included in 12(b)

Include:
- failure to state a claim
- failure to join an indispensable party
(both of above can be made as late as at trial)
- lack of SMJ (can raise at any time)

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11
Q

What does def need to do if Rule 12 motion denied?

A
  • serve answer no later than 14 days after the denial
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12
Q

Answer - Two Core Components

A

Def needs to:
- respond to the allegations in the complaint
- raise affirmative defenses

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13
Q

Answer - Responding to Complaint

A

Def may:
- admit some or all allegations
- deny some or all allegations
- state that she has insufficient knowledge to admit or deny (has effect of denial)
-> can’t do this if the answer to the allegation is in your control
- failure to deny any allegation is an admission except regarding the amount of damages

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14
Q

Answer - Affirmative Defenses

A
  • inject new facts into case that would allow def to win

Classic ones include:
- statute of limitations
- Statute of Frauds
- res judicata
- self defense
- all Rule 12(b) defenses can also be pleaded as affirmative defenses

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15
Q

Affirmative Defenses - Pl Response

A
  • NO respond required
    -> the allegations in def’s answer are deemed denied
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16
Q

Amended Pleadings - Possible Fact Patterns

A
  • right to amend
  • amendment after “right to amend” has expired
  • variance
  • amendment after statute of limitations has run
17
Q

Right to Amend - By Pl

A
  • pl has right to amend her complaint ONCE as of course no later than 21 days after def serves her first Rule 12 response
18
Q

Right to Amend - By Def

A
  • def has righto to amend answer ONCE as of course no later than 21 days after serving it
  • may include omitted rule 12(b) waivable defenses in amendment (if forgot to include in original answer)
19
Q

Amendment After “Right to Amend” Has Expired

A
  • after period to amend as of right, amending party must seek leave of court (or get written consent of opposing party)
  • court will grant leave to amend if “justice so requires”
20
Q

Amendment After “Right to Amend” Has Expired - Factors Considered

A
  • length of delay
  • prejudice to the other party
  • futility of amendment
21
Q

Variance

A
  • comes up when the ev at trial doesn’t match what was pleaded
  • if other party fails to object at trial, party introducing the ev may move to amend the complaint to conform to the evidence
22
Q

Amendment After Statute of Limitations Has Run (Relation Back) - Possible Reasons

A
  • to join a claim not originally asserted
  • to change a defendant
23
Q

Amendment After Statute of Limitations Has Run (Relation Back) - To Join a Claim

A
  • an amended pleading “relates back” if it concerns the same conduct, transaction or occurrence as the original pleading (the pleading that is being amended)
  • relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem
24
Q

Amendment After Statute of Limitations Has Run (Relation Back) - To Change a Defendant

A

Amendment will relate back if:
- amendment concerns the same conduct, transaction or occurrence as the original
- def had such knowledge of the case such that she will be able to avoid prejudice AND
- def knew or should’ve known that, but for a mistake, she would’ve been named originally

  • the knowledge for the last two points must’ve come w/in the period for service of process (90 days after filing complaint)
  • applies when pl sued wrong def first, but right def knew about it
25
Q

Supplemental Pleadings

A
  • set forth things that happened after the pleadings were filed
  • no right to file a supplemental pleading -> need to make a motion
    -> whether that motion is granted is w/in discretion of trial court
26
Q

Rule 11 Signature Requirement - Scope of Application

A
  • applies to all papers except discovery (which is treated by a different, similar rule)
27
Q

Rule 11 Signature Requirement - Significance

A

When lawyer or pro se party signs docs, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
- the paper is not for an improper purpose
- legal contentions are not warranted by law or a nonfrivolous argument for a law change AND
- factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

  • a party makes this certification every time she “presents” a position to the court (ex: when she later advocates a position taken in the doc) -> it is a “continuing certification”
28
Q

Sanctions - Overview

A
  • purpose = deter repeat of the conduct
  • may be imposed against the party, lawyer or lawyer’s firm who committed a violation
  • court an raise Rule 11 violations sua sponte (by issuing order to show cause why sanctions shouldn’t be imposed)
    -> BUT must give the sanctioned party opp to be heard before imposing sanction
29
Q

Types of Sanctions

A
  • often non-monetary (such as requiring the lawyer to attend professionalism classes)
  • monetary sanctions are often paid to court, not the other party
30
Q

Safe Harbor Provisions

A
  • if the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions
    -> serves the motion on the other party but doesn’t file it w/ the court yet
  • party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions
    -> if chooses not to do so, the motion can be filed with the court

July Exam - Civil Procedure (17 decks)

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