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Civil Procedure II Beckman > Pleadings > Flashcards

Pleadings Flashcards

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1
Q

Two types of pleadings:

A

Complaint and answer

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2
Q

When is a reply allowed? (an answer to the answer)

A
  1. If the answer contains a counterclaim

2. At plaintiff’s option

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3
Q

What are the basic components of Rule 11?

A
  1. MUST have attorney’s signature or unrepresented party’s sig
  2. Party certifies to best of knowledge that claims are not for improper purpose, have evidentiary support, denials are warranted
  3. Sanctions
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4
Q

Sanctions

A
  1. Court MAY impose sanctions if 11(b) is violated
  2. Motion for sanctions MUST be made separately & describe specific conduct. Court MAY award attorneys fees to prevailing party
    IDK if the rest is important
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5
Q

What are the basic components of Rule 12(a)?

A

1.(A) D MUST serve an answer
i. within 21 days after being served or
ii. within 60 days after request for waiver sent
(B) Party must serve answer to counterclaim/crossclaim within 21 days of being served
(C) Party must serve reply to answer within 21 days after being served

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6
Q

What are the basic components of Rule 12(b)?

A

(b) Motions for defense
1. lack of subject-matter jurisdiction
2. lack of personal jurisdiction
3. improper venue
4. insufficient process
5. insufficient service of process
6. failure to state a claim upon which relief can be granted; and
7. failure to join a party under Rule 19
- motion MUST be made before pleading if a responsive pleading is allowed

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7
Q

What are the basic components of Rule 12(c)?

A

After the pleadings are closed– but early enough not to delay trial– a party may move for judgment on the pleadings

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8
Q

What are the basic components of Rule 12(e)?

A

Party MAY move for a more definite statement

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9
Q

What are the basic components of Rule 12(f)?

A

Court may strike insufficient defense

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10
Q

What are the basic components of Rule 12(g)?

A

Motion under this rule MAY be joined with any other motion allowed by this rule

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11
Q

What are the basic components of Rule 12(h)?

A
  1. Party waives any defense in 12(b)(2)-(5) by:
    a. omitting it from a motion
    b. failing to either:
    i. make it by motion under this rule or
    ii. include it in a repsonsive pleading
  2. Failure to state a claim, join a person, or state a legal defense
  3. Lack of SMJ can be brought up anytime and court MUST dismiss action
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12
Q

What is Rule 13?

A

Counterclaim and Crossclaim

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13
Q

Rule 13(a)

A

Compulsory Counterclaim
1. Pleading MUST state any counterclaim that
A. arises out of the same T/O
B. does not require adding another party over whom the court does not have jurisdiction

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14
Q

Rule 13(b)

A

Permissive Counterclaim

1. Pleading MAY state as a counterclaim against an opposing party any claim that is not compulsory

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15
Q

Rule 13(g)

A

Crossclaim against a Coparty
1. Pleading MAY state as a crossclaim any claim by one party against coparty if the claim arises out of the T/O that is the subject matter of the original action or of a counterclaim, or if claim relates to any property that is SM of the original action

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16
Q

Rule 8

A

General Rules of Pleading

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17
Q

Rule 8(a)

A

Claim for relief

  1. Short and plain statement of the grounds for the court’s jurisdiction
  2. Short and plain statement of claim showing pleader is entitled to relief
  3. Demand for relief sought
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18
Q

Rule 8(b)

A

Defenses, Admissions and Denials
1. Responding to pleading, party MUST:
A. state defense to each claim in short & plain terms
B. Admit or deny allegations
2. Denial must fairly respond to substance of allegation
3. Must either specifically deny designated allegations or generally deny all except those specifically admitted
4. Admit the part that is true & deny the rest
5. MUST state if party lacks knowledge or information and has the effect of a denial
6. Allegation is admitted if it is not denied

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19
Q

Rule 8(c)

A
  1. Affirmative Defenses– party MUST affirmatively state avoidance or affirmative defense
  2. Court MUST treat pleading as though it were correctly designated if justice so requires
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20
Q

Rule 8(d)

A

Pleading to be concise and direct

  1. Allegations MUST be simple, concise, direct
  2. Party MAY set out 2 or more alternative statements, pleading is sufficient if any one is sufficient
  3. Party may state as many separate claims or defenses as it has regardless of consistency
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21
Q

Rule 8(e)

A

Construing Pleadings

1. Pleadings must be construed so as to do justice

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22
Q

Rule 20(a)(1)(2)

A

Permissive Joinder of Parties
1. Plaintiffs–persons MAY be joined as plaintiffs if:
A. they assert right to relief jointly, severally, or in the alternative w/ respect to or arising out of same T/O and
B. any question of law or fact common to all Ps
2. Same for D

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23
Q

Service

A

Summons MUST be served w/ copy of complaint

by person 18 years old+, not a party

Court may order service by US marshall at P’s request

24
Q

Waiving Service

A

The P MAY notify such D that action has been commenced and request that D waive service of summons.

Notice and request must:

  1. Be in writing and be addressed to the D
  2. Name court where complaint was filed
  3. copy of complaint; TWO copies of waiver form, AND prepaid means for returning the form
  4. inform D of consequences of not waiving service
  5. state the date when request is sent
  6. give D reasonable time of 30 days after REQUEST WAS SENT (60 if outside U.S.) - to return waiver
  7. be sent by first-class mail or other reliable means
25
Q

Failure to Waive service

A

fails to waive w/o good cause, court MUST impose on the D :

  1. expenses later incurred in making service; and
  2. reasonable expenses, including attorney’s fees,
26
Q

TIme to answer after Waiver

A

60 days after request was sent (90 if outside U.S.)

27
Q

Results of filing waiver

A

when p files waiver, proof of service not requried. As if sum and comp had been served at time of filing waiver

28
Q

Does waiving service of summons waive any objection to PJ or Venue?

A

Fuck no

29
Q

Serving in U.S. (not minor or incomp)

A

Unless Fed law provides otherwise -
1. by state procedure of state where District Court where service is made; OR any of these
A) Personally serving D
B) leaving service at D’s dwelling w/ someone of suitable age and discretion who resides there;
C) serving an agent authorized by appointment or by law

30
Q

Serving minor or incompetent person

A

State Procedure where service is made

31
Q

Service on Corporation

A

unless fed law provides otherwise, same as individual; or by delivering service to officer, a managing or general agent, or any other agent authorized by appointment or by law by also mailing a copy of each to the D

32
Q

Serving U.S.

A

deliver service to U.S. attorney for district where action is brought - or assitant US attorney or clerical employee whom the US attorney designates

33
Q

Prooving service

A

unless service waived, proof of service MUST be made by the server’s affidavit to the court (except if by US marshal or deputy marshal)

Failure to prove service does not affect the validity of service. Court MAY permit proof of service to be amended.

34
Q

Time limit for service

A

if D not served within 90 days after complaint filed, court on motion or sua sponte after notice to P, MUST dismiss the action W/O prejudice agaisnt D OR order that service be made within a specified time.

but if P shows good cause for failure, court MUST extend the time for service for an appropriate period.

35
Q

Period in days or a longer unit

A

exlude day that triggers the period, count every day,

include last day of the period, but if last day is a Sat, Sun, Holiday period continues until end of next day that is not Sat, Sun, Hol.

36
Q

Rule 20

A

Permissive Joinder of Parties
1. Plaintiffs–persons MAY be joined as plaintiffs if:
A. they assert right to relief jointly, severally, or in the alternative w/ respect to or arising out of same T/O and
B. any question of law or fact common to all Ps

37
Q

Severability

A

“on motion or on its own, court MAY at ANY TIME, on just terms, add or drop a party [or] sever ANY claim against a party

Misjoinder is NOT grounds for dismissal of an action

38
Q

Consolidation

A

Court MAY consolidate actions into one single action, or join for hearing or trial certain matters at issue in those actions if they “involve a common question of law or fact”

39
Q

Separate Trials

A

court MAY order a separate trial of one or more issues, claims, etc. “to avoid prejudice, or to expedite and economize”

40
Q

Amended and Supplemental Pleadings

A

Rule 15

41
Q

Amendments before Trial

A

party MAY once 21 days after service, or
if responsive pleading required 21 days after service, which ever is earlier
MAY amend with opposing counsel written consent or court’s leave (freely give leave when justice so requires)
unless court order, required response must be within time remaining on original pleading or 14 days which ever is later

42
Q

Amendments During and After Trial

A

if not objected in court, its good
when it relates back, COMMON CORE OF NUCLEUS FACT - claim or defense arose out of the conduct, transaction, or occurrence -

43
Q

Time Tables, to know like gravity

A

Complaint - service within 90 days and if not MUST dismiss without prejudice
Answer - served within 21 days
Waives - if D waives formal service, gets 60 days to respond, 90 if out of US Jurisdiction
Counterclaim - P MUST serve reply within 21 days
3rd Party - if not files after 14 days MUST have court’s leave

44
Q

Third-Party Practice

A

Rule 14

45
Q

When a defending party MAY bring in a third party

A

defendant MAY, as a third party plaintiff serve a non party who is or may be liable to it for all or part of the claim (can’t say it was all them not me) MUST get court’s leave

46
Q

Third Party Defendant

A

MUST assert any defense against third party P under rule 12
MUST assert any compulsory counterclaim against 3rd party P under and MAY assert any permissive counterclaim
MAY assert against P any defense that the 3rd party P has made to P
MAY also assert any claim against P that arises out of the transaction or occurrence that is the subject matter of the P’s claim
P MAY assert against 3rd party D any claim arising out of the transaction or occurrence that is the subject matter of the P’s claim
ANY PARTY MAY MOVE TO STRIKE THE 3RD PARTY CLAIM, TO SEVER IT, OR TO TRY IT SEPARATELY

47
Q

Joinder of Claims

A

MAY join, as independent or alternative claims, as MANY claims as it has against an opposing party
need SMJ

48
Q

Pleadings that are allowed allowed

A
  1. Complaint
  2. an answer to a complaint
  3. an answer to a counter designated as a counterclaim
  4. an answer to a crossclaim
  5. a third-party claim
  6. an answer to a third-party complaint
  7. if the court orders one, a reply to an answer
49
Q

Motions and Other Papers

A

a request for a court order MUST be made by motion
the motion MUST:
1. be in writing unless made during a hearing or trial
2. state with particularity the grounds for seeking the order, and
3. state the relief sought

50
Q

Heightened Pleading Standard

A

Rule 9.
Fraud and mistake
Special Damages

51
Q

Tennessee’s view on pleadings

A

-follows a liberal notice pleading standard, which recognizes that the primary purpose of pleadings is to provide notice of the issues presented.

52
Q

The pleading standard in Tennessee

A

(1) short and plain showing relief and 2) demand for judgment for the relief entitled) declines to adopt the plausibility standard because:
1. marks a substantial departure and has resulted in a loss of clarity, stability and predictability
2. determining if allegation is fact or conclusion is blurry and avoids this problem by excluding terms such as fact, conclusion or cause of action
3. results in information asymmetry (harder for certain cases)
4. was made to address caseload problems and not an issue in Tennessee

53
Q

Tennessee 12.02(6)

A

motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence

54
Q

Service in Tennessee

A
  1. action is commenced within meaning of SOL when compliant is filed, whether process be issued or not issued and whether process be returned served or unserved
  2. if process remains unissued for 90 days or is not served within 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a SOL unless the plaintiff continues the action
  3. makes clear that a defendant’s refusal to accept a certified or registered letter won’t defeat service
55
Q

Rule 20(a)(2)

A
  1. Defendants– persons (or property subject to in rem) may be joined in one action as Ds if:
    A. any right to relief is asserted against them arising out of the same T/O
56
Q

Rule 20(b)

A

Protective Measures
1. Court MAY issue orders– including an order for separate trials– to protect a party against embarrassment, delay, expense or other prejudice

Civil Procedure II Beckman (2 decks)

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