Pleadings

Question 1

Demand for Relief

Answer 1

I. Complaint: principal pleading by the π
A. Requirements:
1. statement of subject matter jx
2. allegations
a) federal: statement of the claim showing that the pleader is entitled to relief (notice pleading)
(1) complaint must contain allegations of fact that render the asserted claim plausible on its face (allow court to draw a reas. inference that ∆ liable, closer to fact pleading now)
b) SC: statement of the facts showing that the pleader is entitled to relief (fact pleading)
(1) SCRCP 8: must allege facts underlying the pleader’s claim for relief
(2) ultimate facts that establish each element of the COA (not evid. facts or conclusions of law)
3. demand for relief
a) SC only: specified sum may be demanded in actual damages, but punitive and exemplary in general terms and not for a stated sum

Question 2

Special Matters to be Pleaded with particularity

Answer 2

1. Fraud & Mistake

2. Special Damages: direct out-of-pocket costs the ∆ has caused to the π (medical bills, income)

Question 3

Timing of Pleading Documents

Answer 3

A. Timing

1. federal: within 21 days after service of process (or 60 days after π mailed waiver form to ∆ if waived service)
2. SC: within 30 days after service of the complaint

B. Rule 12 Pre-Answer Motions

1. Timing:
   a) federal: within 21 days after service of process (or 60 days if ∆ waived service)
   b) SC: within 30 days after service of complaint

Question 4

Types of Pre-Answer Motions

Answer 4

2. Types of Pre- Answer motions
   a) Matters of Form
   (1) motion for a more definite statement
   (2) motion to strike
   b) 12(b) DEFENSES
   (1) Lack of SMJ
   (2) Lack of PJ
   (3) improper venue
   (4) Insufficieny of Process
   (5) Insufficiency of Service
   (6) Another action pending between same parties for same cause (SC only)
   (7) Failure to Join an Indispensable Party
   (8) 12(b)(6) failure to state facts sufficient to constitute COA
   c) On the Merits
   (1) 12(b)(6) failure to state a claim
   (2) 12(c) judgment on the pleadings
   (3) Summary Judgment

Question 5

Answer TIming

Answer 5

a) federal: 21 days after service if ∆ makes no motion (60 days if ∆ waived service) OR 14 days after ruling on pre-answer motion (answer is NOT your first response, first made motions)
b) SC: 30 days after service of process if ∆ makes no motion; or 15 days after ruling on a pre-answer motion

Question 6

Answer Contents

Answer 6

a) Rule 12(b) ∆ses if not already asserted or waived
b) Responses to Allegations of Complaint:
(1) admit, deny, lack sufficient info. to admit/deny, failure to deny constitutes an admission
c) Affirmative ∆ses: even if all the allegations are true, I’m not liable because of additional facts or circumstances; must be plead in ∆’s answer in order to use them at trial
d) Fact pleading required (SC only): in the answer as in the complaint

Question 7

Amending Pleadings

Answer 7

A. Rules

1. Amendments of Right (automatically allowed to amend)
   a) Federal
   b) SC: within 30 days of serving pleading, if no response required, or within 30 days after a responsive pleading is served
2. Amendments with leave of court: freely granted when justice requires
3. Response to an amended pleading: due 15 days (SC) or 14 days (federal) after service

B. Relation Back: amendments relate back if they arise from the same conduct, tx, or occurrence set forth in the original pleading

Question 8

Federal Rule 11

Answer 8

A. Federal:

1. attorney must sign all pleadings, written motions and papers, signature certifies:
   a) reasonable inquiry
   b) no improper purpose
   c) contentions are warranted by law or reas. extension of existing law
   d) facts in the document have evidentiary support OR will have ev. support upon discovery
2. continuing duty: certification renewed every time position “presented” to court
3. Safe Harbor provision: violation of Rule 11, serve Motion for Rule 11 but don’t file it with the court, party then has 21 days to withdraw the document before the motion will be filed
4. Sanctions: discretionary, may be levied against any attorney, firm, or party

Question 9

South Carolina Rule 11

Answer 9

B. SC:

1. all papers must be signed by the party’s attorney, signature certifies
   a) the attorney or party has read the document
   b) to the best of the attorney’s knowledge, information, and belief
   (1) there is good ground to support the document AND
   (2) it is not interposed for an improper purpose
2. affirmation that movant’s counsel communicated with opposing counsel and attempted in GF to resolve the matter contained in the motion
3. sanctions: on motion or court’s own initiative, on signer, represented party, or both