Pleadings

Question 1

Complaint

Answer 1

Filing this commences an action.

Requirements:

1. Statement of grounds of subject matter jurisdiction;
2. Short and plain statement of the claim, showing entitled to relief;
3. Demand for relief sought (e.g., damages, injunction, declaratory judgment)

Question 2

What is the Standard for the Statement of claming stating relief?

Answer 2

Must plead facts supporting a plausible claim, not just a possible claim

Question 3

How can D challenge a complaint?

Answer 3

D can challenge the complaint by making a Rule 12(b)(6) motion

Question 4

What three matters must be pleaded with even more detail – with particularity or specificity?

Answer 4

1. Fraud,
2. Mistake and
3. Special Damages

Question 5

Defendant’s Response.

Rule 12 requires D to respond in one of two ways:

Answer 5

(1) by motion or
(2) by answer.

Question 6

When must D respond to complaint by filing a motion or by answer?

Answer 6

Within 21 days after service of process

Question 7

Consequence to D for failing to respond to complaint by filing a motion or by answer?

Answer 7

Default

Question 8

Consequence of waiving service of process to Ds reponse?

Answer 8

If you waived service, you get 60 days from when P mailed you the waiver form.

Question 9

What are motions?

Answer 9

Motions are not pleadings; they are requests for a court order.

Question 10

Issues of Form Motions

Answer 10

(1) motion for more definite statement – pleading so vague D can’t frame a response (rare);
(2) motion to strike, which is aimed at immaterial or scandalous things.

Question 11

Rule 12(b) defenses

Answer 11

(1) lack of subject matter jurisdiction (SMJ);
(2) lack of PJ;
(3) improper venue;
(4) improper process (problem with the papers);
(5) improper service of process;
(6) failure to state a claim;
(7) failure to join indispensable party.

Question 12

Where can 12b6 Defenses be placed?

Answer 12

These defenses can be put either in a motion to dismiss or in the answer.

Question 13

Which 12b6 Defenses are waivable?

Answer 13

(2) lack of PJ;
(3) improper venue;
(4) improper process (problem with the papers);
(5) improper service of process;

Question 14

Where must waivable defenses be placed?

Answer 14

“WAIVABLE” DEFENSES MUST BE PUT IN THE FIRST RULE 12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY’RE WAIVED.

Question 15

What is the Answer?

Answer 15

It is a pleading

Question 16

D does two things in the answer:

Answer 16

1. Respond to allegations of complaint:
2. Raise affirmative defenses

Question 17

In his Answer, how must D respond to the allegations in the complaint?

Answer 17

(1) Admit;
(2) Deny;
(3) State that you lack sufficient information to admit or deny.

• Number (3) has the effect of a denial, but can you use (3) if the answer is in your control?
  
  • NO – you have a duty to investigate things in your control.
  • So if P alleges something and D knows that the answer is in D’s records, D

must look it up. She cannot say that she does not know.

Question 18

What is D never deemed to admit?

Answer 18

Damages

Question 19

In his Answer, D must raise affirimative defenses:

Answer 19

These inject a new fact into the case, which will
allow D to win.

Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense.

Question 20

Whats a counterclaim?

Answer 20

A claim against an opposing party.

Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by D against P. The counterclaim is part of D’s answer.

Question 21

After D serves a counterclaim against P, what does P have to do?

Answer 21

P must respond under Rule 12 within 21 days

Question 22

There are two types of counterclaim:

Answer 22

1. Compulsory:
2. Permissive:

Question 23

Compulsary Counterclaim

Answer 23

Arises from the same T/O as P’s claim. Unless you have already filed the claim in another case, YOU MUST FILE THIS IN THE PENDING CASE, OR THE CLAIM IS WAIVED.

Is this unique? YES. THIS IS THE ONLY COMPULSORY CLAIM. NO OTHER CLAIM IN THE UNIVERSE IS COMPULSORY.

Question 24

Permissive Counterclaim

Answer 24

Permissive counterclaim does not arise from same T/O as P’s claim.

Permissive means you are not required to file it in this case. You may sue on it in a separate case.

Question 25

SMJ & Counterclaims

Answer 25

Subject matter jurisdiction. We must assess whether it invokes diversity or FQ jurisdiction. If so, it’s OK in federal court. If not, we try supplemental jurisdiction.

Question 26

Crossclaim

Answer 26

This is a claim against a co-party. It must arise from the same T/O as the underlying action. But it is not compulsory – you may assert it here or sue separately.

Question 27

Can you use supplmental jurisidiction for a cross-claim?

Answer 27

You may use SMJ, but No Supplemental jurisidiction because the claim is not asserted by the P

Question 28

Additional Claims

Answer 28

Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it – even if that claim has nothing to do with the others.

This additional claim (like any claim in federal court) must invoke federal SMJ. So you assess whether it invokes diversity or FQ.

If neither diversity nor FQ is met, then try supplemental jurisidiction

Question 29

Amended Pleadings – four fact patterns.

Answer 29

1. Right to amend.
2. If there’s no right to amend
3. Variance
4. Amendment after the statute of limitations has run (“relation back”).

Question 30

Right to amend.

Answer 30

Plaintiff has a right to amend once within 21 days after D serves her first rule 12 response

Question 31

If there’s no right to amend…

Answer 31

If there’s no right to amend, seek leave of court. It will be granted if “justice so requires.”

What factors do courts look to in ruling on this?

• Delay,
• prejudice and
• futility of amendment

Question 32

Variance.

Answer 32

That’s where the evidence at trial does not match what was pleaded.

At or after trial, P can move to amend the complaint to
conform to the evidence.

– This ensures that the pleadings match what was actually tried.

Question 33

Two types permissible of Amendments after the statute of limitations has run (“relation back”).

Answer 33

1. To join a new claim
2. To change a defendant after the statute has run

Question 34

Amendment To join a new claim after the statute of limitations has run (“relation back”): Discuss Relation back

Answer 34

Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading.

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.

Question 35

Amendment To change a defendant after the statute has run after the statute of limitations has run (“relation back”):

Answer 35

This will relate back if:

1. It concerns the same conduct, transaction, or occurrence as the original;
2. The new party knew of this case within 120 days of its filing; and
3. She also knew that, but for a mistake, she would have been named originally.

– This applies when P sued the wrong D first, but the right D knew about it.

Question 36

Supplemental Pleadings.

Answer 36

These set forth things that happened after the pleading was filed. (Amended pleadings are about things that happened before the pleading was filed but were not asserted until later.)

Question 37

Is there a right to Supplemental Pleadings?

Answer 37

No, its always discretionary

But the court will often do so unless it will cause delay or prejudice.

Question 38

Rule 11.

Answer 38

Applies to all documents except discovery (which are treated by another rule).

When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:

1. The paper is not for an improper purpose, and
2. The legal contentions are warranted by law (or nonfrivolous argument for law change), and
3. The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).

In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document).

Question 39

If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered?

Answer 39

The party, the attorney or the firm

Question 40

What must the court do before imposing Rule 11 Sanctions? And what does it usually do?

Answer 40

Before imposing a sanction on you, the court must give you chance to be heard.

Court usually issues an “order to show cause” why sanctions should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone.

Question 41

What is the purpose of Rule 11 sanctions?

Answer 41

To deter, not to punish

Question 42

Monetary Santions under Rule 11

Answer 42

Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes). Monetary sanctions, if any, are often paid to court, not to
the other party.

Question 43

If the other party violates Rule 11, can you make a motion for sanctions immediately?

AKA how do you go about imposing Rule 11 Sanctions

Answer 43

No

You serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed.

Question 44

Can the court raise Rule 11 problems on its own (“sua sponte”)?

Answer 44

Yes