Pleadings Flashcards
Service of Process timing
within 90 days after filing of complaint
Methods for Service for Individual
- Personally
- Defendant’s usual place of abode, accepted by a person who lives there of suitable age.
- D’s agent
Who can serve?
anyone over 18
Service on Corps/associations
to officer or agent, or other state law
Waiver of Service
request for waiver must be in writing and address to D/agent of corp, and must give D at least 30 days after the waiver is sent, to return the waiver
Effect of Waiver of Service
D doesn’t have to serve an answer to complaint until 60 days after the request (90days if sent to D outside of USA)
Injunction Types
TRO
Preliminary Injunction
Permanent Injunction
TRO
Preserves the status quo until an opportunity for full hearing
Cannot be effective for longer than 14 days unless good cause exists
Can be issued without notice if immediate/irreparable injury will result to P
Preliminary Injunction
Issued prior to a full hearing on the merits, notice to D.
May be issued if:
- P is likely to succeed on merits
- P is likely to suffer irreparable harm in absence of relief
- Balance of equities is in P’s favor
- Injunction is in the public interest
Permanent Injunction
Once issued, it continues until dissolve by court. Must show actual success on the merits.
Federal Rule - Complaint
Short/plain statement of Court’s SMJ, P’s entitlement to relief, and demand for judgment
Timing of complaint
generally before service, and service is generally within 90 days of filing
12(b) motion to dismiss
- Lack of SMJ
- Lack of PJ, Improper venue, insufficient service
- Failure to state a claim upon which relief can be granted & failure to join a necessary/indispensable party
12(b)(6) motion to dismiss
claim will be dismissed if it fails to assert a legal theory of recovery cognizable at law, or allege facts sufficient to support cognizable claim
-court treats well-pleaded facts as true and views pleading in light most favorable to the plaintiff.
12(c) motion for judgment on the pleadings
after answer is filed, allows court to dispose of a case when material facts are not in dispute and judgment on the merits can be achieved base don content of pleadings.
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.
Answer
D must admit/deny P’s allegations or plead lack of sufficient knowledge within 21 days after being served with summons and complaint.
Answer - Motion to Dismiss
D must file within 14 days after notice.
Defendant’s affirmative Defenses
Must assert them in the answer, or they are waived.
Reply to answer
P has 21 days
Amendment to Pleading as of Right
may be amended once at any time within 21 days of service of the pleading or 21 days of the defendant’s response, if there is none.
Relation Back
a new claim relates back to the date of the original pleading if the amendment asserts a claim/defense that arose out of the same conduct, transaction, or occurrence as original pleading.
Amendment to add new party
can add or change a party against whom the claim is asserted against if: it concerns the same transaction, conduct, or occurrence as the original pleading; and the party to be added must have known or had reason to know that the action should have been brought against that party but for a mistake.
Failure to State a Claim on which relief can be granted -treated as summary judgment.
In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion.
