Pleadings Flashcards
Response pleadings must be filed within ___ days after the service pleading.
20
All pleadings, motions, other papers directed to the court must be ______ by an ______ of _____
Signed
Attorney of Record
When an attorney signs a pleading/motion/other paper directed to the court, he certifies that to the best of his knowledge, information, and belief, formed after a reasonable inquiry under the circumstances, that: (4)
No improper purpose (It is not being presented for an improper purpose);
Good law or argument (The claims or contentions are warranted by existing law OR a nonfrivolous argument for extension, modification, or reversal of existing law);
Supported by or will be supported by evidence (The factual allegations have evidentiary support (or are likely to have evidentiary support after reasonable opportunity for discovery)); AND
Good reason for denials (Any denials of factual allegations are warranted by the evidence or, if specifically so identified, are reasonably based on a lack of info or belief)
Whether an inquiry is reasonable is objective or subjective
Subjective
If an atty fails to make a “reasonable inquiry” when submitting a pleading, motion, or other paper, the court may impose sanctions, including . . . (3)
Non-monetary sanctions (e.g., striking all or part of a litigation document)
Penalties paid into court
Reasonable fees and costs to opposing counsel.
Law firms are/aren’t generally held jointly responsible for violations committed by partners and associates.
Are
Every pleading with factual averments or denials must be _______
Verified.
Pennsylvania does/doesn’t utilize notice pleading.
Doesn’t
Pennsylvania requires notice/fact pleading
Fact
A complaint must set forth what?
All material facts for the COA
In his complaint, P must specifically state (3):
Time, dates, and places when and where the T/O occurred
Any averments of fraud and mistake
Special damages
What may may be averred generally? _____, _____, _____, and other conditions of mind
Malice, intent, knowledge
Allegations in a complaint must be divided into what?
Separately number paragraphs
If a claim is based on a k, what must the complaint do?
State whether oral or written.
If a writing forms the basis of a claim, what must the complaint include?
Must attach the writings or an explanation of their substance and why they are not attached.
What is prohibited in the ad damnum clause (i.e., the wherefore clause)? Exception
No specific sum UNLESS damages are liquidated
Motions objecting to the pleadings are called
POs
POs may be filed by any party to any pleading on a number of grounds. What are the eight most likely to be tested?
Lack of PJ
Improper Venue
Improper Service
Failure of pleading to conform to the rules
Inclusions of scandalous or impertinent matter in a pleading
Legal insufficiency of pleading (i.e., demurrer)
Nonjoinder of a necessary party
Agreement for ADR
What does a PO in the nature of a demurrer claim?
Pleading is legally insufficient
Where there is an agreement for ADR, that issue is raised through . . .
POs
Since fact pleading is required in PA, there must be sufficient ______ with regard to _____ _____
Specificity
Material facts
If a pleading states the wrong law or, file a PO claiming . . .
Demurrer
T or F? All POs must be raised at the same time.
T
All objections not raised by POs are waived EXCEPT . . . (3)
Demurrer (legal insufficiency of the pleadings)
Lack of SMJ
Failure to join an indispensible party
Like any pleading, POs must be filed within ____ days from service of a prior pleading.
20
If D files POs and POs are denied, D must file an answer within ____ days after notice of the order that POs were denied.
20
If D does not file POs, D must file an answer to the Complaint within ____ days from the service of the complaint.
20
Averments to which a responsive pleading are required are admitted when not denied _____ or by ______
Specifically
by Implication
A general denial is the same as . . .
An admission
Ordinarily, a statement by a party that, after a reasonable investigation, the party is w/o knowledge or sufficient info to form a belief as to the truth of an averment is OK. HOWEVER, this cannot be used if what two things (alternatively) are true of the info?
Public knowledge
Within D’s control
In an action seeking damages for these three things, averments in a pleading may be denied generally.
Bodily injury
Death
Property damage
These four factual averments must always be denied specifically or they are deemed admitted.
Averments relating to the identity, agency, or employment of the person doing a material act;
Averments relating to the ownership, possession, or control of the property or instrumentalities involved;
Averments in support of any additional relief demanded in the pleading;
Averments in POs
Affirmative Defenses must be set forth in your Answer under the heading of ____ ____ or they are waived.
New Matter
T or F? Affirmative defenses do not include Statute of Frauds and SOL.
False.
How do the defenses of Comparative Negligence and Assumption of the Risk differ in PA and Fed Ct.
In Pa, they do not have to be raised in Answer/New Matter
In Fed Ct., they must be pleaded or are considered waived
Which counterclaims are compulsory in PA?
None
T or F? In PA, all counterclaims are permissive.
True
If a counterclaim is filed against the P, the may file what against whom and for what?
Cross-claim against any other party for ANY COA included in the counterclaim
How long does P have to file a Reply to D’s New Matter or Counterclaim? What if he doesn’t Reply in this time period?
- Could be deemed admitted.
If D fails to file an Answer or POs to the Complaint within 20 days, when can happen?
Default judgment
Prior to obtaining default judgment, a plaintiff has to mail what to D? How much extra time does D get?
Notice of Intent to Take Default J
10 days to file an answer
In any professional liability claim, the plaintiff has ____ days after filing the complaint to file a what?
60 days
Certificate of Merit.
A certificate of merit must state one of these three things…
An expert has indicated in writing that there exists a reasonable probability that the care, skill, and knowledge exercised by the D fell outside of acceptable professional standards AND that such conduct caused the harm to P;
The claim that D deviated from an acceptance professional standard is based solely on allegations that other licensed professionals for whom this D is responsible deviated from an acceptable professional standard.
Expert testimony is unnecessary for prosecution of the claim
The deadline for filing an answer or other responsive pleading by a D in a professional liability claim is 20 days after this or that, whichever is shorter/longer. . .
Service of the complaint OR
Service of the COM
Whichever is LATER
Two additional options for a D in a professional liability action?
Dismissal upon an affidavit of non-involvement (med mal OR construction design only)
Entry of Judgment of Non Pros if COM is not timely filed by P
A party has the right to amend any pleading to change the form of the action, add a party, correct the name of a party, or otherwise amend the pleading: (3 options)
Within 20 days after service of POs
With consent of the other party
With leave of court
T or F? Amendments to the pleadings are liberally allowed.
T
An amendment will NOT be permitted after expiration of the SOL for that COA where the amendment seeks to . . . (2)
Raise a new COA; or
Add new Ds in the litigation
