Pleadings Flashcards
When are pleadings sufficient?
Title 12 tracks the federal rules fairly closely with respect to rules governing pleadings.
Pleadings are generally considered sufficient so long as they put the other party on notice with regard to the claim or defense asserted.
How is time calculated with the filing of pleadings?
When computing the time prescribed fro the filing of a pleading, the day of the act, event, or default from which the designated period of time begins to run is not be included, but the last day of the period so computed is included.
If the last day of the time period falls on a day when the court clerk’s office is not open for business until the regularly scheduled closing time, the time period extends to the end of the next day in which the office of the court clerk is open.
If the prescribed time period is less than 11 days, intermediate days when the court clerk’s office is not open are excluded from the computation.
What are the requirements of each pleading?
Each claim founded upon a separate transaction or occurrence should be stated in a separate count whenever separation facilitates the clear presentation of the matters set forth.
Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument that is an exhibit to a pleading is considered part of the pleading.
Each pleading must contain the name of the court, the title and file number of the action, and the names of the parties. It is sufficient to state just the name of the first party on all pleadings filed after the petition.
Each pleading must also be signed by the party or his attorney.
By presenting a pleading to the court, the attorney or unrepresented party certifies that all the information contained therein:
- is well grounded in fact;
- is warranted by existing law or a good faith argument for its extension, modification, or reversal; and
- is not being presented for any improper purpose, such as harassment or delay.
Any violation of the above certifications may be punishable by appropriate court sanctions.
What is a petition?
In Oklahoma, the petition is the P’s claim for relief, which must contain a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled.
These are the same requirements for any pleading in which relief is sought.
What are requirements for certain petitions?
Oklahoma requires that a demand for money damages must be plead with with specificity if it is for less than $75,000. If the P’s claim is for a greater amount, and the claim does not arise out of a contract dispute, he need only specify that fact.
A petition arising from a contract action must include a demand for a specific sum of money as a result of the harm caused by the D’s breach.
A petition for replevin must also include a description of the property, allege the value of the property, allege that another party is in wrongful possession of the property, and include a prayer for the immediate delivery of the property. After being served with a summons and order of delivery of the property, a D may file a written objection to the order within five days.
If the P’s action alleges professional negligence, he must attach an affidavit to his petition state that:
- the P has consulted and reviewed the facts of the claim with a qualified expert;
- the expert has issued a written opinion concluding that the D’s actions constitute professional negligence; and
- based on the expert’s review and consultation, the P believes that his claim is meritorious and based on good cause.
What special matters for pleadings are there?
All allegations of fraud or mistake in a pleading must also state the circumstances constituting such fraud or mistake with particularity.
Malice, intent, or knowledge, and other conditions of a person’s mind may be alleged generally.
Any items of special damage must be specifically stated.
What are the requirements defensive pleading and motions?
Defensive pleadings must state in short and plain terms the defenses to each claim asserted and must reply to each of the adverse party’s averments with either an express admission, denial, or statement that the pleader lacks sufficient knowledge or information to form a belief as to the truth of the allegations.
Failure to respond to averments in a pleading to which a response is required are deemed admissions.
Failure to respond to averments in a pleading to which a response is not required or permitted is deemed a denial.
The D may plead as many defenses as he has, regardless of consistency.
Affirmative defenses must be specifically pleaded in response to a pleading.
If no responsive pleading is required, any defense in law or fact to that claim for relief may be asserted at trial.
What defenses may be plead by motion?
The following defenses may be pled by motion:
- lack of SMJ;
- lack of PJ;
- improper venue;
- insufficient process;
- insufficient service of process;
- failure to state a claim upon which relief can be granted; and
- failure to join an indispensable party.
Additionally, the following defenses may be pled by motion:
- that another action is pending between the same parties for the same claim;
- lack of a party’s capacity to be sued; and
- lack of a party’s capacity to sue.
What defenses are waived and when?
The defenses of lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief can be granted, and lack of a party’s capacity to be sued are waived if not raised in the responsive pleading or omitted in a motion.
The defense of failure to join an indispensable party may be raised in any pleading or at trial.
the defenses of another action pending between the same parties for the same claim and lack of a party’s capacity to sue may be raised in any pleading or at the pretrial conference.
If at any time it appears that the court lacks SMJ, the court shall dismiss the action.
What is required in a motion to dismiss for failure to state a claim upon which relief can be granted?
A motion to dismiss for failure to state a claim must separately state each omission or defect in the petition. If the court grants the motion, then the court will grant the P leave to amend and specify the time within which an amended can be filed. Failure to do so will result in a final judgment of dismissal with prejudice.
When must a party file a responsive pleading?
A party must answer a petition, counterclaim, cross-claim within 20 days.
You are permitted to file a reservation of time, extending the time to respond by 20 days from the last date for answering.
A filing a reservation of time waives the following defenses:
- lack of PJ;
- improper venue;
- insufficient process;
- insufficient service of process;
- failure to state a claim; and
- lack of a party’s capacity to be sued.
What happens if the pleading is vague or ambiguous?
There is no motion for a more definite statement in Oklahoma.
If a pleading contains any insufficient defense, a party may, within 20 days after service of the pleading, make a motion to strike such material from the pleading.
The court may act sua sponte to strike such material.
What are the time restrictions for an amendment of the pleadings?
A party may amend its pleading once as a matter of courts before a responsive pleading is served, at any time.
If no responsive pleading is permitted and the action has not been set for trial, the party may amend it no later than 20 days after serving it.
Otherwise, the party may amend the pleading only by written consent of the adverse party or by leave of the court.
A party responding to an amended pleading must do so within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period is longer, unless the court orders otherwise.
When do amendments relate back to the original filing?
Amendments relate back to the date the original pleading was filed whenever the claim or defense asserted in the amended pleadings arose out of the same transaction or occurrence set forth in the original pleadings.
An amendment changing a party relates back only if:
- the amendment concerns the same transaction or occurrence as the original pleading;
- within 180 days after filing the petition, the party sought to be included by the amendment has received notice in such a manner that will not prejudice him against maintaining his defense on the merits; and
- the party sought to be included by the amendment knew or should have known that, but for mistake of the proper party’s identity, the action would have been brought against him.
The amendment of pleadings is freely allowed by the courts when justice so requires.
What is a declaratory judgment?
Any person whose property or contract rights are affected by a statute, ordinance, contract, or foreign judgment or decree may petition the court to make a ruling on its validity, or a clarification regarding it , so as to declare that person’s status, rights, or other legal relationship.
The determination may be made either before or after there has been a breach of any legal duty.
