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Federal Civil Procedure > Pleadings > Flashcards

Pleadings Flashcards

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Civil Procedure 1L flashcards
1
Q

Complaint

A
  • Starts action
  • states basis for courts jurisdiction
  • basis for Plaintiff’s claim AND
  • demand for relief
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2
Q

Complaint Requirements

A
  1. Statement of SMJ
  2. Short & Plain Statement of Claim showing entitlement for relief, and
    • Historically - Prim. Function = Notice, Req. short & plain statement that gives notice & allows reasonable response
    • Modern - ∏ must plead facts supporting a plausible claim
  3. Demand for relief sought
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3
Q

Service of Complaint

A

Plaintiff must serve summons & complaint within 90 days

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4
Q

Complaint - Special Matters

A

Must be pleaded with particularity if going to be raised at trial

  • Fraud
  • Mistake
  • Special Damages - Damages that don’t normally flow from the event
  • Conditions Precedent - Plaintiff must state generally that she complied w/ all cond. precedent
    • Shifts burden to ▵ to identify conditions precedent that ∏ didn’t perform
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5
Q

Answer

A

Response to Plaintiff’s complaint

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6
Q

Answer - Requirements

A
  1. Respond to allegations of Complaint - ▵ states in short & plain terms defenses to each claim and:
    • Admit
    • Deny - Failure to deny is an admission (But not on damages)
    • State lack of sufficient information to admit or deny - Not avail. if lacking info is in control of ▵ or is public knowledge
  2. Raise Affirmative Defenses - Must plead in answer of defense is waived
  3. Joinder of Claims
    • Counterclaim - Against opposing party
    • Impleader - ▵may implead 3d P they believe is liable to her for all of Plaintiff’s claims against ▵
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7
Q

Answer - Timing

A

Within 21 days of service of process OR within 14 days of denial of Rule 12 Motion

  • Exception - Waiver of formal service of process ➞ 60 days
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8
Q

Motion (Rule 12)

A

Request for a court order (granted or denied)

  • 12(e) Motion for more Definite Statement
  • 12(f) Motion to Strike
  • 2(b) - Motion to Dismiss
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9
Q

12(e) Motion for more Definite Statement

A
  • If complaint is ambiguous, can only be made pre- answer
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10
Q

when is a 12(f) Motion to Strike appropriate

A
  • Plaintiff included redundant, immaterial, impertinent, or scandalous material
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11
Q

2(b) Motion to Dismiss

A

Can be raised by motion or in the answer

  1. Lack of SMJ - Never waived can be raised anytime ➞ can be raised 1st time on appeal
  2. Lack of PJ - Can Waive, Must include in 1st response
  3. Improper Venue - Can Waive, Must include in 1st response
  4. Insufficiency of Process - Can Waive, Problem w/ summons itself, must include in 1st resp.
  5. Insufficiency of Service of Process - Can Waive, Prob. w/ manner of process, 1st response
  6. Failure to State a Claim - Can Raise anytime during trial
  7. Failure to join indispensable Party - can raise anytime during trial
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12
Q

Amended Pleadings - When?

A

Allowed one as matter of course b/f response or by leave of court (when justice so requires)

  • Right to Amend as Matter of Course - Only Once within 21 days of serving the pleading
    • Responsive pleading required - 21 days after service of responsive pleading or pre-answer motion
  • After 21 Days ➞ Leave of court required
  • At Trial - Amend. will aid the Merits, If no right to amend, it may be granted by express consent, implied consent, or by seeking leave of court
    • Express Consent - Written consent of adverse party
    • Implied Consent - If issue is brought up at trial & no objection
    • Over Objection at Trial - Ct. has discretion to grant leave to amens so long as no display of delay or prejudice & Party is given notice & has ability to litigate
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13
Q

Amended Pleadings - Relation Back

Adding New Claim

A

(Avoids SOL problems) Amendment takes place after SOL has run, treats amended pleading as though it was filed with the original pleading

  • Adding New Claim - If claim arose out of conduct, transaction, occurrence set forth in original pleading, amendment relates back to date of the original pleading
    *
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14
Q

Amended Pleading - Relation Back

Changing Defendant

A

Changing ▵ - Amended Party relates back if:

  • Concerns the conduct, transaction or occurrence as original complaint
  • New Party knew of the suit within 120 days of original claim, AND
  • New party knew that but for the mistake, the new party would have been named originally
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15
Q

Rule 11

A

Pleadings (Not discovery documents) Must be signed by attorney or unrepresented party

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16
Q

Rule 11 - Effect of Signature

A

Makes signer responsible for the truthfulness of the allegations. Certifies that to the best of her knowledge, information, and belief formed after inquiry reasonable under the circ.

  • Pleading has No improper Purpose - Harassment, cause unnecessary delay, increase costs of lit.
  • Legal contentions warranted by existing law or by non frivolous argument for changing existing law or establish new law
  • Factual contentions have or will have evidentiary support after further investigation or discovery
  • Denials of factual contentions warranted by evidence or reasonable based on belief or lack of info
17
Q

Rule 11 - Sanctions

A

After notice and reasonable opportunity to respond

  • ct. determines Rule 11 was violated,
  • ct. may impose sanctions on:
    • attorney,
    • firm, or
    • party responsible for the violation
18
Q

Rule 11 - Purpose of Sanctions

A

Deterrence, limited to what will deter repetition of the conduct by others in similar sit.

19
Q

Rule 11 - Form of Sanctions

A
  • Non-monetary directives,
  • Pay fine to court, or
  • If imposed on motion & its an effective deterrence, an order to pay moving party or all of reas. attorney fees & other expenses resulting from the violation
20
Q

Rule 11 - Sanctions Procedure

A

Motion for Sanctions - Must be made separate from other motions & describe specific conduct that allegedly violated Rule 11

  • Must be served on the other party
  • 21 Day safe Harbor Provision - Can’t file if challenged paper, claim, defense or denial is withdrawn or corrected within 21 days after service or within another time set by the court

Sua Sponte (On Courts Initiative) - Court may order attorney, firm, party to show cause why conduct in order has violated Rule 11, no safe harbor provision

21
Q

How long does a party have to unilaterally amend a complaint?

A
  • W/in 21 days of filing
  • If answer or motion to dismiss has been filed - w/in 21 days of that filing
22
Q

How long does a party have to unilaterally amend an answer ?

A

w/in 21 days of filing it

23
Q

What are the methods for amending a complaint?

A
  1. As a matter of right
  2. WIth permission
24
Q

What are the ways to amend a complaint with permission ?

A
  1. Permission of the opposing party OR
  2. Permission of the court
25
Q

What factors will a court weigh when granting permission from the court to amend a complaint?

A
  1. The reason for the amendment in the context of timing (not blameworthy)
  2. If the amendment will prejudice the other party
26
Q

What types of amendments do not relate back to the original filing for statute of limitations purposes?

A

An amendment seeking to add:

  1. A new claim or
  2. a new party
27
Q

When will the filing date of amendments seeking to add a new claim relate back to the original filing date?

A

When the new claim arises out of the same transaction or occurrence

28
Q

When must process be served

A

Within 90 days of filing the complaint

29
Q

Who can serve process?

A

Any pers. at least 18 years old & who is not a party to the action

30
Q

After process is served, the party sued must decide how to respond. What options do the federal rules offer?

A

A defendant to a suit can file:

  1. An answer
  2. A motion to strike
  3. A motion for a more definite statement
  4. A motion to dismiss
31
Q

What happens if a defendant fails to include a defense in his answer ?

A

The defendant forfeits that defense

32
Q

What defenses are not waived if not included in an answer?

A
  1. Failure to state a claim upon which relief can be granted
  2. Failure to join a nec. party
  3. Lack of SMJ
33
Q

Define a motion to dismiss

A

A motion that seeks the dismissal of a claim and can be filed by any party defending against a claim

34
Q

If defendant was actually served with process (regardless of the method) how long does the defendant have to respond to a complaint?

A

21 days to respond

35
Q

If D waived service of process, how long does the D have to respond to a complaint?

A

60 days to respond

36
Q

If the defendant responds to P’s complaint by filing motion for more def. st., motion to strike, mortion to dismiss, then what must the Defendant do if the motion is denied?

A

D must file and answer within 14 days after the motion’s denial

Federal Civil Procedure (9 decks)

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