Pleadings

Question 1

Service of process

Answer 1

1. Timing—within 90 days after filing of complaint
2. Methods of service for individual
   • Personally
   • At D’s usual place of abode with a person of suitable age/discretion who resides there, or
   • Delivering to D’s agent
3. Service on corporations/associations—to officer or agent, or by following state law
4. Waiver of service
   • Request for waiver must be in writing and addressed to individual D, or officer/agent of corporation, and must give D reasonable time of at least 30 days after request sent to return waiver
   • Effect—extends time to serve answer from 21 (after service of process) to 60 days (after waiver request sent—90, if foreign)

Question 2

Injunctions

Answer 2

1. Temporary restraining order (TRO)
   • Preserves the status quo until an opportunity for a full hearing
   • Effective for a limited time (no longer than 14 days unless good cause exists or adversary consents)
   • May be issued without notice to adverse party if immediate and irreparable injury will result and movant’s attorney certifies efforts made to give notice and the reason why notice should not be required
2. Preliminary injunction (PI)
   • Issued prior to a full hearing on the merits, upon notice to the defendant
   • May be issued to a P if:
   o P is likely to succeed on the merits
   o P is likely to suffer irreparable harm in the absence of relief
   o Balance of equities is in P’s favor, and
   o Injunction is in the public interest
3. Permanent injunction
   • Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution
   • Same standard as for PI but P must show actual success on the merits

Question 3

Complaint

Answer 3

1. Federal rule—short/plain statement of court’s SMJ, P’s entitlement to relief, and demand for judgment (notice pleading)
2. Timing—filing generally occurs before service; service generally within 90 days of filing

Question 4

Motions against the complaint

Answer 4

Within 21 days of service

1. Rule 12(b) motion to dismiss
   • Lack of SMJ (can be raised at any time)
   • Lack of PJ, improper venue, insufficient process or service (can be raised in preanswer motion or answer, otherwise waived)
   • Failure to state a claim upon which relief can be granted and failure to join necessary/indispensable party (can be raised in any pleading, motion for judgment on pleadings, or at trial)
2. Rule 12(b)(6) motion to dismiss
   • Claim will be dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support cognizable claim; and court treats well-pleaded facts as true, resolves doubts/inferences in P’s favor, and views pleading in light most favorable to P
   • Strength of facts—must raise right to relief above speculation, assuming that allegations in complaint are true; and raise reasonable expectation that discovery will reveal evidence of necessary element
   • Court can consider—only allegations and attached exhibits in the complaint
   • Court’s two-step analysis
   o Identify and reject legal conclusions unsupported by factual allegations
   o Assume truth/veracity of well-pleaded facts and include context specific analysis that draws on court’s judicial experience and common sense to determine if allegations plausibly give rise to relief
3. Motion for judgment on the pleadings [Rule 12(c)]—after answer filed, allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on content of pleadings
4. Motion for more definite statement—responding party may move for more definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading
5. Motion to strike
   • Federal rule—when pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material – court may order such defense or material stricken

Question 5

Answer

Answer 5

1. Admission/denial—answer must admit/deny P’s allegations, or plead lack of sufficient knowledge (with reasonable investigation)
2. Affirmative defenses—D must state them or they are deemed waived
3. Timing
   • No motion to dismiss—21 days after being served with summons and complaint (or 60 days if D timely waived service)
   • Motion to dismiss—no filing while motion is pending, and within 14 days after notice of court’s action

Question 6

Reply

Answer 6

1. Response—by P to D’s answer within 21 days after being served with order to reply

Question 7

Amendments

Answer 7

1. Rule
   • Party may amend a pleading once as of right within 21 days if no responsive pleading is required, or after being served with an answer or 12(b) motion; otherwise during/after trial if it conforms to evidence and opposing party has opportunity to prepare
   • Court should freely give leave to amend a pleading when justice so requires and will not result in undue prejudice to opposing party
2. Relation back
   • New claim—relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading
   • New party
   o Relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction or occurrence as original pleading
   o New party receives notice of action within 90 days after original complaint filed
   o D knew or should have known about action but for mistake concerning proper party’s identity
3. Time to respond—within 14 days after service of amended pleading or time left on original pleading, whichever is later

Question 8

Supplemental pleadings

Answer 8

To describe events occurring after filing of earlier pleading

Question 9

Rule 11 sanctions

Answer 9

1. Court may impose sanctions limited to what suffices to deter repetition of conduct by others similarly situated
2. Types—nonmonetary directives, penalties to court or payments to movant for attorney’s fees and other expenses directly resulting from violation