Pleadings Flashcards
What do Federal courts require when Pleading a claim?
Federal courts require notice pleading, which consists of (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, (2) a short and plain statement of the claim showing the pleader is entitled to relief (which must be plausible), and (3) a demand for judgment or relief.
What do California courts require when Pleading a claim?
California requires fact pleading, which consists of a statement of the facts constituting the cause of action, in ordinary and concise language. Complaints and affirmative defenses must contain ultimate facts—the facts that raise the issues upon which the right to recover depends—as opposed to evidentiary facts or legal conclusions.
What is the Relation Back Doctrine?
An amendment changing the party or name of a party against whom a claim is asserted relates back to the date that the original complaint was filed if the amendment concerns the same conduct or occurrence as the original pleading. It also requires that: (1) the third party be given notice within 120 days after the amendment such that it will not be prejudiced, and (2) the third party knew or should have known that, but for a mistake as to the party’s identity, the action would have been brought against it.
In California, when are Doe designations permitted?
California sometimes permits one to sue others under a fictitious Doe designation. This is permitted where: (1) the original complaint is timely filed and contains charging allegations against all defendants, including Doe defendants; (2) the plaintiff is genuinely ignorant of the identity of a fictitious defendant, of the facts giving rise to a cause of action, or of the fact that the law provides a cause of action; and (3) the plaintiff must plead ignorance in the complaint. If the plaintiff learns the true identity of the Doe defendant within 3 years, he must amend the complaint to name the defendant and serve them with a summons and complaint. The timing of the filing of the Doe amendments relates back to the timing of the original complaint.
In California, what is a Demurrer?
Demurrers test the sufficiency of the complaint or answer.
In California, what are the General Grounds for a Demurrer?
The grounds for a general demurrer are: (1) the complaint fails to state facts sufficient to constitute a cause of action, or (2) the court lacks subject matter jurisdiction. A complaint may fail to state sufficient facts where it does not plead ultimate facts, leaves out an element, is barred on its face by the statute of limitations, or such a cause of action does not exist.
In California, what are the Special Grounds for a Demurrer?
The grounds for a special demurrer are: (1) the plaintiff lacks capacity to sue; (2) there is another action pending between the same parties on the same cause of action; (3) some defect or misjoinder of parties; (4) the pleading is uncertain (i.e., unintelligible); and (5) the complaint fails to plead whether the contract is oral or written.
What is a Motion to Strike?
Generally, both federal and California rules permit motions to strike irrelevant, false or improper matter. Typically, this involves incoherent or extraneous allegations or claims that do not relate to a legitimate claim, or evidentiary but not ultimate facts.
In California, what is an Anti-SLAPP motion?
California has another motion to strike where the plaintiff has filed a strategic lawsuit against public participation (anti-SLAPP)—a lawsuit intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. The defendant must make a threshold showing that the challenged cause of action is one arising from constitutionally protected activity (most commonly defamation cases). The burden then shifts to the plaintiff to show a probability of prevailing on the merits. If the defendant prevails on the anti-SLAPP motion, he may bring a SLAPP back motion (i.e., an action for malicious prosecution).
What are the exceptions to an Anti-SLAPP motion?
There are 2 exceptions: (1) actions brought solely in the public interest or on behalf of the general public, and (2) actions brought against sellers of goods or services who make representations about their business or a competitor’s business.
How does a complainant preserve the right to a Jury Trial?
In federal court, the 7th Amendment right to a jury trial can be waived. The complaint must contain a demand for a jury trial, so the failure to include the demand constitutes a waiver in federal court.
In California, how may one waive the right to Jury Trial shortly before trial?
In California, a party must post jury fees shortly before trial, the failure of which constitutes a waiver.
Recite the Pleading Rule Statements for Federal Courts.
Pleading
Federal: Notice pleading, which is (1) a short and plain statement of jurisdiction, (2) a short and plain statement of entitlement to relief, and (3) demand for judgment or relief
California: Fact pleading, which is a statement of ultimate facts (facts raising issues upon which right to recovery depend) constituting the cause of action, in ordinary and concise language
Recite the Pleading Rule Statements for California Courts.
Pleading
California: Fact pleading, which is a statement of ultimate facts (facts raising issues upon which right to recovery depend) constituting the cause of action, in ordinary and concise language
Recite the Rule Statement for the Relation Back Doctrine.
Relation Back
Amendment changing the party or name of party relates back to original complaint date if amendment concerns same conduct or occurrence as original pleading, and: (1) third party given notice within 120 days after amendment, and (2) the third party knew or should have known, but for a mistake, the action would have been brought against it.
