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Civil Procedure > Pleadings > Flashcards

Pleadings Flashcards

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Civil Procedure 1L flashcards
1
Q

What are the requirements of a complaint? (3)

A
  1. Statement of grounds of subject matter jurisdiction
  2. Short and plain statement of the claim
  3. Demand for relief sought
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2
Q

What is the standard for pleading?

A

Must plead facts supporting a plausible claim

(Judge uses his own experience and common sense to determine plausibility)

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3
Q

What are three matters that must be pleaded with particularity or specificity?

A
  1. Fraud
  2. Mistake
  3. Special damages
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4
Q

Under Rule 12, how may a defendant respond to P’s pleading? (2 ways)

A
  1. By motion OR
  2. By answer
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5
Q

How long does D have to respond to the complaint?

A

Within 21 days after service of process

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6
Q

What motions can D make regarding the form of the pleadings? (2)

A
  1. Motion for more definite statement (pleading too vague), OR
  2. Motion to strike
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7
Q

What are the Rule 12(b) defenses? (7)

A

(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) improper process
(5) improper service of process
(6) failure to state a claim
(7) failure to join indispensable party

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8
Q

Which 12(b) defenses are waivable? (4)

A

(2) lack of personal jurisdiction
(3) improper venue
(4) improper process
(5) improper service of process

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9
Q

When are the 12(b) defenses waived?

A

When waivable, they must be put in the first rule 12 response (motion or answer)

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10
Q

What must the court do if it finds no subject matter jurisdiction?

A

As soon as Court finds no SMJ, it must dismiss.

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11
Q

What two things must D do in the answer?

A
  1. Respond to the allegations in the complaint
  2. Raise affirmative defenses (otherwise waived)
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12
Q

What are D’s options in responding to the complaint? (3 options)

A
  1. Admit;
  2. Deny; OR
  3. State that she lacks sufficient information to admit or deny (has the effect of denial, but have duty to investigate)
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13
Q

What happens if D does not respond to a point in the complaint?

A

She is deemed to admit it EXCEPT damages

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14
Q

What are the two types of claims between parties?

A

Counterclaim (2 types)

Cross-claim (check for SMJ for each new one)

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15
Q

What are the two types of counterclaims?

A

Compulsory

Permissive

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16
Q

What is a counterclaim?

A

A claim against the opposing party (usually by D against P) (check for SMJ for each new claim)

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17
Q

How does D assert a counterclaim?

A

In D’s answer

18
Q

What does a party have to do after they are served with a counterclaim?

A

Respond under Rule 12

19
Q

How long does a party have to respond to a counterclaim?

A

21 days after service

20
Q

What is a compulsory counterclaim?

A

A counterclaim which arises from the same transaction or occurrence as P’s claim

Unless the claim was already filed in another case, it MUST be filed in the pending case or it is waived

21
Q

What is a permissive counterclaim?

A

Does not arise from the same transaction or occurrence

(D is not required to file in the case)

22
Q

What is a crossclaim?

A

Claim against a co-party

(Must arise from the same transaction or occurrence)

(Not compulsory)

23
Q

How can a party amend a pleading?

A
  1. Right to amend
  2. Variance
  3. Amendment after statute of limitations has run (“relation back”)
24
Q

How long does P have a right to amend a pleading?

A

21 days after D serves first Rule 12 response

25
Q

How long does D have a right to amend the pleadings?

A

Once within 21 days of serving his answer

26
Q

What is a variance?

A

When the evidence at trial does not match what was pleaded–

If opposing party does not object to the evidence at trial, the complaining party will be allowed to amend the pleadings to conform to that evidence

27
Q

How can a party amend when there is no right?

A

Must seek leave of court

28
Q

What does a court consider in deciding whether to allow a party to amend the pleading?

A

If justice so requires

(Generally not allowed when there is delay, prejudice, or futility of amendment)

29
Q

When can you join a new claim after statute of limitations has run?

A

If an amendment would “relate back”

(Amendment “relates back” if it concerns the same conduct, transaction, or occurrence at the present case)

30
Q

When can you change a defendant after the statute of limitations has run?

A

When:

  1. It concerns the same conduct, transaction, or occurrence;
  2. The new party knew of this case within 120 days of its filing; AND
  3. She also knew that, but for the mistake, she would have been named originally
31
Q

What are supplemental pleadings?

A

Pleadings that set forth things that happened after the pleading was filed

32
Q

Do parties have a right to file a supplemental pleading?

A

No, it’s always discretionary

(But a court will often do so unless it will cause delay or prejudice)

33
Q

What things are certified in all signed documents (except discovery) under threat of Rule 11? (4 things)

A
  1. The paper is not for an improper purpose
  2. The legal contentions are warranted by law (or nonfrivolous arguments for change)
  3. The factual contentions and denials have evidentiary support (or are likely to after investigation)
  4. Continuing certification every time you present the position to the court
34
Q

Against whom may Rule 11 sanctions be ordered?

A

The party, the attorney, or the firm

35
Q

What is the purpose of Rule 11 sanctions?

A

To deter, not punish

36
Q

What is the process for Rule 11 sanctions by parties?

A
  1. Opponent serves motion on other parties but cannot file it;
  2. Party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions; AND THEN
  3. If party in violation does not remedy the problem, the motion can be filed
37
Q

What is the process for Rule 11 sanctions by the court?

A

Rule 11 sanctions may be raised sua sponte

–> Court issues “show cause” order why sanctions should not be imposed

–> Court must give you a chance to be heard before sanctioning

38
Q

How long does a party in violation have to fix the Rule 11 problem?

A

21 days to fix the problem and avoid sanctions

39
Q

What is a Rule 11 motion?

A

Motion against a party for submitting pleadings for an improper purpose or which contain frivolous arguments or arguments that have no evidentiary support.

40
Q

What is a 12(b)(6) motion?

A

Motion to dismiss for failure to state a claim upon which relief can be granted

Civil Procedure (10 decks)

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