Pleadings

Question 1

Pleadings - Commencement of Proceedings

Answer 1

• Federal civil action is begun by filing a complaint with the clerk of the court
• For diverstiy actions, state law controls when an action is begun

Question 2

Pleadings - Types of Pleadings

Answer 2

Types of Pleadings

1. Complaint
   
   • used to state a claim for relievf
   • must contain a short and plain statement of the claim showing that the party is entitled to relief and a demand for judgment for such relief.
   • P or the D may file a claim against a co-party called a cross-claim complaint
   • D who impleads a third party D files a third party complaint
2. Answer
   
   • filed by the party against whom a claim is made
   • contains responses to the allegations of the complain, affirmative defenses, and counterclaim
3. Reply
   
   • used by the plaintiff to answer a counterclaim

Question 3

Pleadings - Claim for Relief

Answer 3

• Recovery is not limited by the claim for relief as stated in the complaint, except for default judgments

Question 4

Pleadings - Notice Pleading

Answer 4

• Use of notice pleading udner Federal RUles
  
  • pleadings need not detail the facts of the P’s case or spell out the legal theory
  • Rule - all that is required is a short and plain statement of the claim that gives fair notice of the pleader’s contention

Question 5

Pleadings - Special Pleading

Answer 5

1. Definition

• Stated with particularity/specificity
• No particular form of words

2. Types of CLaims Requiring Special Pleading
   a. Fraud or Mistake
   b. Special Damages
   * Damages taht do not ordinarily result from the wrong alleged

Example 7: You are hit by an automobile and you claim medical expenses, personal injury, pain and suffering, and lost wages—all these may be alleged generally. But let’s say you allege in your complaint that you lost a major business deal because the accident prevented you from showing up at the closing and the deal went to someone else. That is not the type of damages that ordinarily result from the accident, so those damages must be stated with particularity.

Question 6

Pleadings - Recent Decisions

Answer 6

• SCOTUS “cut back” on notice pleading
• Rule - requires that the allegations in the complaint state a plausible case for recovery
• important cases:
  
  • Bell Atlantic v. Twombly
    
    • Holding - allegations were not sufficiently plausible as P could not provide any detail showing or tending to show an illegal agreement
  • Ashcroft v. Iqbal
    
    • Holding - allegations did not make a plausible case for overcoming the defendant’s defense of qualified immunity
  • Result - allows district judges to dismiss, before discovery, complaints that they think are obviously unfounded
• Twiqbal Rule
  
  • A short and plain statement with
  • with factual allegations in the complaint that
  • state a plausible claim for which relief can be granted
• Factual allegations must rise from conceivable to plausible.
• No conclusory statements
• There must be a causal link between the alleged facts and claim for relief

Question 7

Defense Motions v. Complaint - Motion to Dismiss

Answer 7

• May be used to raise
  
  • lack of subject matter jurisdicition
  • lack of personal jurisdiction
    
    • including defect in service of process
  • improper venue
  • failure to state a claim upon which relief can be granted
  • failure to join a necessary party
  • forum non conveniens
• Claim of no personal jurisdiction or claim of improper venue must be made at the earliest opportunity (the answer or pre-answer motion to dismiss)
• Lack of SMJ cannot be waived
  
  • Can be raised by any party at any time including the first time on appeal
• Most claims are waived if not timely raised

Question 8

Defense Motions v. Complaint - Motion for Judgment on the Pleadings

Answer 8

• Rule - 12(c) - if material facts are not in dispute and judgment on merits can be achieved based on content of pleadings, then may file motion
• Rarely encountered
• appropriate when the pleadings completely agree about the facts - no material disagreement
• if there is any factual dispute, proper motion is for summary judgmen

Question 9

Defense Motions v. Complaint - Motion for a More Definite Statement

Answer 9

• Rule - if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading, then may file motion

Question 10

Defense Motions v. Complaint - Motion to Strike

Answer 10

• Rule - if pleading contains insufficient deffense, or redundan, immaterial or scandalous material, the court may order such defense or material be stricken
• Note - has to be not relevant

Question 11

Answer

Answer 11

1. In General

• Rule - must admit/deny P’s allegations or plead lack of sufficinent knowlege with reasonable investigation
• used to respond to any form of the complaint
• contains responses, affirmative defenses, and counterclaims

2. Affirmative Defenses

• defense which require notice
• Includes: assumption of the risk, contributory negligence, duress, fraud, release, SoF and SoL
• any defense that has its own name is likely an affirmative defense
• if not stated, then deemed waved

3. Timing

• must ordinarily be filed within 21 days of service of the pleading to which it responds

4. Responses

• failure to respond is an admission
• unless cured by amendment, the admission is binding
• common practice - include a boilerplate denial of everything not specifically admitted

OHIO - 28 days to respond

Question 12

Reply

Answer 12

• P’s answer to a counterclaim
• rules governing answers apply to reply
• 21 days

OHIO - 28 days to respond

Question 13

Amendments to Pleadings

Answer 13

1. As of Right

• may be amended once at any time within 21 days of service of the pleading or within 21 days of the D response

2. By Leave of Court

• after the party has amended once OR the time for amending has elapsed, leave to amend must be sought from the court
• Rule - leave to amend should be freely given if it will not result in undue prejudice to opposing party
  
  • judge must have a reason for denying leave to amend

3. SoL and the Doctrine of Relation Back

• If statute of limitations has run, then relation back determines whether the amended pleading is allowed or time-barred
• New Claim
  
  • Rule - amendment relates back to date of original pleading if
    
    • amendment asserts claim/defense that arose out of the same conduct, transaction, or occurance as the original pleading
• New Party
  
  • ​Rule - amendment relates back to date or original pleading if
    
    • amendment asserts cleaim/defense that arose out of the same conduct, transaction or occurence as original pleading AND
    • D knew or should have known that the action should have been brought against the party (but for mistake concerning proper party’s identity) AND
    • New party receives notice of action within 120 days after original complaint filed

Example 8: Suit is filed against a corporate subsidiary, and the complaint is later amended to name the parent company. Meanwhile, the statute of limitations runs. Is the suit timely as against the parent company? Yes.. The amended pleading concerned the same transaction as the original pleading and the suit filed against the subsidiary gave the parent notice of the issue.

Example 9: Suppose a plaintiff slips and falls on a sidewalk in a shopping area and sues a store. After the statute of limitations has run, it becomes clear that the plaintiff has sued the wrong store. If the plaintiff tries to amend the complaint to sue the correct store, the amendment is time-barred because the original complaint did not give the correct store notice of the claim.

Question 14

Certification of Pleadings

Answer 14

• Verification - most pleadings are not verified (not sworn to) nor need they be
• Certification - pleadings and all other documents - including motions and disocvery requests - must be signed by attorney or record with address and telephone number
  
  • Signature certifies that
    
    • there is an appropriate xx basis for filing
    • attorney certifies tot he best of her knowledge after reasonable inquiry there is no improper purpose
    • legal contentions are warranted by existing law or by a nonfrivolous argument for a change in the law and
    • the factual allegations have evidenciary support or are likely to have such support after discovery
      
      • denials must have such support or must be reasonbly based on information or belief
  • Violation of certification requirements - can be raised by court or party
    
    • move to dismiss or seek sanctions (R11)
    • attorney can be made to bear cost of baseless or improper filing
      
      • opposing party’s atty’s fees