Pleadings Flashcards
Complaint
Filing this commences an action.
Requirements:
- Statement of grounds of subject matter jurisdiction;
- Short and plain statement of the claim, showing entitled to relief;
- Demand for relief sought (e.g., damages, injunction, declaratory judgment)
What is the Standard for the Statement of claming stating relief?
Must plead facts supporting a plausible claim, not just a possible claim
How can D challenge a complaint?
D can challenge the complaint by making a Rule 12(b)(6) motion
What three matters must be pleaded with even more detail – with particularity or specificity?
- Fraud,
- Mistake and
- Special Damages
Defendant’s Response.
Rule 12 requires D to respond in one of two ways:
(1) by motion or
(2) by answer.
When must D respond to complaint by filing a motion or by answer?
Within 21 days after service of process
Consequence to D for failing to respond to complaint by filing a motion or by answer?
Default
Consequence of waiving service of process to Ds reponse?
If you waived service, you get 60 days from when P mailed you the waiver form.
What are motions?
Motions are not pleadings; they are requests for a court order.
Issues of Form Motions
(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.
Rule 12(b) defenses
(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.
Where can 12b6 Defenses be placed?
These defenses can be put either in a motion to dismiss or in the answer.
Which 12b6 Defenses are waivable?
(2) lack of PJ;
(3) improper venue;
(4) improper process (problem with the papers);
(5) improper service of process;
Where must waivable defenses be placed?
“WAIVABLE” DEFENSES MUST BE PUT IN THE FIRST RULE 12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY’RE WAIVED.
What is the Answer?
It is a pleading
D does two things in the answer:
- Respond to allegations of complaint:
- Raise affirmative defenses
In his Answer, how must D respond to the allegations in the complaint?
(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.
What is D never deemed to admit?
Damages
In his Answer, D must raise affirimative defenses:
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.
Whats a counterclaim?
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.
After D serves a counterclaim against P, what does P have to do?
P must respond under Rule 12 within 21 days
There are two types of counterclaim:
- Compulsory:
- Permissive:
Compulsary Counterclaim
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.
Permissive Counterclaim
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.
SMJ & Counterclaims
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.
Crossclaim
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.
Can you use supplmental jurisidiction for a cross-claim?
You may use SMJ, but No Supplemental jurisidiction because the claim is not asserted by the P
Additional Claims
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
Amended Pleadings – four fact patterns.
- Right to amend.
- If there’s no right to amend
- Variance
- Amendment after the statute of limitations has run (“relation back”).
Right to amend.
Plaintiff has a right to amend once within 21 days after D serves her first rule 12 response
If there’s no right to amend…
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
Variance.
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.
Two types permissible of Amendments after the statute of limitations has run (“relation back”).
- To join a new claim
- To change a defendant after the statute has run
Amendment To join a new claim after the statute of limitations has run (“relation back”): Discuss Relation back
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.
Amendment To change a defendant after the statute has run after the statute of limitations has run (“relation back”):
This will relate back if:
- It concerns the same conduct, transaction, or occurrence as the original;
- The new party knew of this case within 120 days of its filing; and
- 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.
Supplemental Pleadings.
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.)
Is there a right to Supplemental Pleadings?
No, its always discretionary
But the court will often do so unless it will cause delay or prejudice.
Rule 11.
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:
- The paper is not for an improper purpose, and
- The legal contentions are warranted by law (or nonfrivolous argument for law change), and
- 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).
If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered?
The party, the attorney or the firm
What must the court do before imposing Rule 11 Sanctions? And what does it usually do?
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.
What is the purpose of Rule 11 sanctions?
To deter, not to punish
Monetary Santions under Rule 11
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.
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
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.
Can the court raise Rule 11 problems on its own (“sua sponte”)?
Yes
