Pleadings Flashcards
3 requirements of a pleading?
Statement of grounds for SMJ
Short and plaint statement of the claim, showing entitled to relief.
Demand for relief sought
What does “notice pleading” mean?
Only need enough detail to put the other side on notice.
Today, SCOTUS requires what of pleading?
Facts supporting a plausible claim.
A D can challenge a complaint using what Rule?
12(b)(6)
What three matters must be pleaded with PARTICULARITY or SPECIFICITY?
Fraud
Mistake
Special Damages.
A D can respond to a pleading in one of two ways: by ___ or _____
By motion
By answer
How long does D have to file a responsive pleading?
21 days
If D waived service, how long does he have to respond the complaint?
60 days from when P mailed the waiver form.
What are the seven Rule 12(b) defenses? KNOW THIS!
Lack of SMJ Lack of PJ Improper Venue Improper Process Improper Service Failure to State a Claim Failure to Join and Indispensible Party
Rule 12(b) defense can be put in a motion, answer, or both?
Both
Which four 12(b) defense are waivable if not put in the first responsive pleading?
Lack of PJ
Improper Venue
Improper Process
Improper Service
When does a party waive defense of lack of SMJ?
never
If a case has been removed to fed court and it turns out the federal lacks SMJ, what does the fed court do?
Remand.
What 2 things does D do in his Answer?
Respond to allegations
Raise affirmative defenses.
In responding to P’s allegations in an Answer, D must do one of these 3 things:
Admit
Deny
State you lack sufficient info to admit or deny.
Can you state that you lack sufficient info to admit or deny if the answer is in your control, but a pain in the ass to determine?
No. You have a duty to investigate things in your control
What is D never deemed to admit?
Damages
A counterclaim is a claim against whom?
Opposing party
After D serves a counterclaim against P, what does P have to do?
Respond in 21 days.
Two types of counterclaims:
Compulsory and Permissive
A compulsory counterclaim arises . . .
From the same T/O as P’s claim.
If D does not file a compulsory counterclaim, then what effect?
waived, unless already asserted in another case.
Lois and Meg, each driving their own car, collide and each is injured. Lois sues Meg. Meg answers and defends the suit. Then Meg files a new case against Lois concerning the same wreck. OK? Explain.
No. Meg had a compulsory counterclaim and failed to file, so claim is waived.
How must a permissive counterclaim relate to the underlying case?
It doesn’t
A permissive counterclaim still needs to be subject to what?
Court’s D, FQ, or S jurisdiction.
A cross claim is claim against whom?
A co-party
What must be a true of a cross claim?
Must arise from the same T/O
What sort of cross claims are compulsory?
None
D1 files a cross claim against D2. If D2 has a claim he wants to file against D1, is it consider cross or counter? Why?
Counter. Now against an opposing party.
Once you file a counter or cross claim (on any claim), you can/cannot join an additional claim to it, even if that claim has nothing to do with the others.
Can
P has a right to amend once within how long of D’s first Rule 12 response?
21 days.
How many times does a P have a RIGHT amend?
once
D has a right to amend once within how many days of serving his Answer?
21 days.
How many times does D have a RIGHT to amend?
once
If there is no RIGHT to amend, what should a party do?
Seek leave of court.
When will a court grant a right to amend (if right no longer exists)?
When justice so requires
Factors to decide whether “justice so requires” the party to have permission to amend? (3)
Delay
Prejudice
Futility of Amendment
If P introduces evidence at trial that does not match what was pleaded, what two things must be true for P do to keep evidence in?
D cannot object
Move to amend to conform to the evidence.
Amended pleadings can “relate back” (i.e., get around SOL problem) IF they . . .
Concern the same conduct, transaction, or occurrence ad the original pleading.
What three requirements for a change in defendant to relate back?
Concern the same conduct, transaction, or occurrence ad the original pleading.
The new party knew of this case within 120 days of filing; and
The new party also knew that, but for a mistake, she would have named originally.
A supplemental pleading sets forth things that happened when?
After the pleading was filed.
When is there a right to file a supplementary pleading?
Never
If a party violates Rule 11 and you move for sanctions, how long do they have to cure?
21 days
