Pleadings

Question 1

Service of Process timing

Answer 1

within 90 days after filing of complaint

Question 2

Methods for Service for Individual

Answer 2

• Personally
• Defendant’s usual place of abode, accepted by a person who lives there of suitable age.
• D’s agent

Question 3

Who can serve?

Answer 3

anyone over 18

Question 4

Service on Corps/associations

Answer 4

to officer or agent, or other state law

Question 5

Waiver of Service

Answer 5

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

Question 6

Effect of Waiver of Service

Answer 6

D doesn’t have to serve an answer to complaint until 60 days after the request (90days if sent to D outside of USA)

Question 7

Injunction Types

Answer 7

TRO
Preliminary Injunction
Permanent Injunction

Question 8

TRO

Answer 8

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

Question 9

Preliminary Injunction

Answer 9

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

Question 10

Permanent Injunction

Answer 10

Once issued, it continues until dissolve by court. Must show actual success on the merits.

Question 11

Federal Rule - Complaint

Answer 11

Short/plain statement of Court’s SMJ, P’s entitlement to relief, and demand for judgment

Question 12

Timing of complaint

Answer 12

generally before service, and service is generally within 90 days of filing

Question 13

12(b) motion to dismiss

Answer 13

• 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

Question 14

12(b)(6) motion to dismiss

Answer 14

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.

Question 15

12(c) motion for judgment on the pleadings

Answer 15

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.

Question 16

Motion to Strike

Answer 16

Federal Rule: when pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material, court may order such defense or material stricken.

Question 17

Answer

Answer 17

D must admit/deny P’s allegations or plead lack of sufficient knowledge within 21 days after being served with summons and complaint.

Question 18

Answer - Motion to Dismiss

Answer 18

D must file within 14 days after notice.

Question 19

Defendant’s affirmative Defenses

Answer 19

Must assert them in the answer, or they are waived.

Question 20

Reply to answer

Answer 20

P has 21 days

Question 21

Amendment to Pleading as of Right

Answer 21

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.

Question 22

Relation Back

Answer 22

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.

Question 23

Amendment to add new party

Answer 23

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.

Question 24

Failure to State a Claim on which relief can be granted -treated as summary judgment.

Answer 24

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.