Pleadings

Question 1

How are civil actions commenced generally?

Answer 1

Under Rule 3, a civil action is commenced by filing a complaint with the court clerk. For the purposes of a federal diversity action, state law will apply to decide when the action commenced for the purposes of the statute of limitations. So, if a state law provides that an action is commenced by service of process on a D, rather than by filing with the court, then the state rule will control for purposes of diversity jdx.

Question 2

How are time limits generally calculated?

Answer 2

Rule 6:
-Whenever a time period is stated in days, the period excludes the day of the triggering event, but includes every subsequent day, including weekends and holidays. If the last day is a weekend or holiday, it is extended to the very next business day.

Question 3

How are time limits calculated for motions, hearings and affidavits?

Answer 3

Rule 6(c): a written motion and notice of a hearing must be served at least 14 days prior to the hearing, unless:

1. the motion can be heard ex parte
2. the Rules provide for it, or
3. the court orders otherwise

An opposing affidavit must be served at least seven days before the hearing, unless otherwise ordered.

Question 4

How much time is allowed for electronic and nonpaper filings?

Answer 4

Rule 6(d): when the Rules otherwise provide a time period for responding to a service or filing, and the service or is made by mail, leaving with the clerk, or other means consented to, three days are added to the prescribed period.

Question 5

Why is service of process important?

Answer 5

In the absence of service of process (or waiver of service of process by the defendant, a court may ordinarily not exercise power over a party named as a defendant in a complaint.

Question 6

Who must serve?

Answer 6

Rule 4(c): the P is responsible for serving the summons and complaint upon the defendant. Service may be made by any nonparty who is at least 18 years old.

Question 7

What is the time limit for service?

Answer 7

Rule 4(m): the P must serve the summons and complaint within 120 days after filing the complaint.

Question 8

What happens if a P does not serve within 120 days?

Answer 8

If P can show ‘good cause’ as to why service was not timely made, then the court must extend the timely period for an appropriate amount of time. But if there is no showing of good cause, then the court must dismiss the action without prejudice against the D or order that service be made within a specific time.

Question 9

How can individuals be served if they live in the U.S.?

Answer 9

Service may generally be made within the state in which the federal district court sits by:

1. personally serving the summons and complain on the D.
2. Leaving the summons and complaint at the D’s usual place of residence with a person of suitable age and discretion who resides there; OR
3. Delivering the summons and complaint to an agent appointed by the D or otherwise authorized by law to receive service.

Also: service may be made by following state law for serving summons in an action brought in a court of general jurisdiction in the state where the district court is located or where service is made.

Question 10

How can individuals generally be served if they live outside the U.S.?

Answer 10

Rule 4(f): service may be affected in any manner, internationally agreed-upon, that is reasonably calculated to give notice.

Question 11

How can individuals generally be served if they live outside of the U.S. AND there is not international agreement?

Answer 11

If no international agreement exists, or if an international agreement permits service by other means, then service on any competent individual outside the U.S. may be effected by:

• any method permitted by the law of the foreign country (unless prohibited by law)
• personal service of summons and complaint or by any mail that requires a signed receipt
• any other means not prohibited by international agreement, OR
• as ordered by the court

Question 12

How can corporations be served in the U.S.?

Answer 12

Rule 4(h): service on a corporation or association in the U.S. may be performed by delivering the summons and complaints to:

1. an officer
2. managing agent
3. general agent, OR
4. agent appointed or authorized by law to receive process.

If the agent is one authorized by statute, and the statute so requires, the P must also mail a copy of the summons and complaint to the defendant.

Question 13

What are the CA service of process distinctions?

Answer 13

• when substituted service is made in CA, the state requires a follow up mailing to the D which is not required in federal court.
• CA authorizes service by publication
• In addition to the methods of service authorized on in-state Ds, service of process on a person outside of CA may be made by first class mail requiring a return receipt so long as proper statutory and constitutional basis for personal jdx exists.

Question 14

How can corporations be served outside of the U.S.?

Answer 14

Service on corporations and associations outside of the U.S. may be made using any methods available for service on an individual outside of the U.S., except personal delivery.

Question 15

How is the U.S. served?

Answer 15

To serve the U.S., a party must:

1. deliver a copy of the summons and complaint to the U.S. attorney (or a designee) for the district where the action is brought, or send a copy by registered or certified mail to the civil-process clerk at the U.S. attorney’s office;
2. send a copy by registered or certified mail to the U.S. attorney general; AND
3. If the action challenges an order of a nonparty agency or officer of the U.S., send a copy by registered or certified mail to the agency or officer.

Question 16

How is a U.S. agency, officer or employee sued in an official capacity served?

Answer 16

Rule 4(i)(2): to serve a U.S. agency, officer, or employee sued in an official capacity, a party must sue the U.S. and also send a copy of the summons and complaint by registered or certified mail to the agency, officer or employee.

Question 17

How is a U.S. officer of employee sued individually served?

Answer 17

Rule 4(i)(3): to serve a U.S. officer of employee in an individual capacity for an act or omission occurring in connection with duties performed on behalf of the U.S., a party must serve the U.S. and also serve the officer or employee under the normal rules for serving an individual.

Question 18

What is waiver of service generally?

Answer 18

Rule 4(d): a competent individual, corporation or association that is subject to service has a duty to avoid unnecessary expenses of serving a summons by waiving service. The plaintiff may notify such a defendant that an action has been commenced and request that the D waive service. The rule does not apply to government entities, infants or incompetents.

Question 19

How does a P request waiver of service?

Answer 19

A plaintiff’s notice and request for waiver of service must be in writing and be addressed to the individual defendant, or, for a corporation, to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process.

Question 20

What must a notice and request for waiver of service contain?

Answer 20

A plaintiff’s notice and request for waiver of service must be accompanied by:

1. a copy of the complaint
2. two copies of a waiver form
3. prepaid means to return the form

Question 21

How long must a P give a D to return the notice and request for waiver of service?

Answer 21

A P must give a D a reasonable time of at least 30 days after the request was sent (or at least 60 days for foreign defendant).

Question 22

How long does a D have to serve an answer if they waive service?

Answer 22

4(d)(3): if a D timely returns a waiver of service before being served with process, then the D does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after D was outside a judicial district of the U.S. This is an incentive to waive, b/c the normal time period in which an answer must be served is 21 days.

Question 23

Does waiver of service also waive objections to personal jdx or venue?

Answer 23

no; waiver of service does not waive any objection to personal jdx or venue.

Question 24

What date is considered the date of service if service is waived?

Answer 24

If the D agrees to waive service, then the date on which the P files the waiver with the court will be deemed the date of service.

Question 25

CA: What is the CA distinction on the effect of waiver?

Answer 25

In CA, a D’s waiver of service does NOT extend the time to respond to a complaint.

Question 26

What are the consequences of failing to waive service?

Answer 26

Rule 4(d)(2): if a D located withing the U.S. fails, without good cause, to sign and return a waiver requested by a P located within the U.S., then the court MUST impose on the D the expenses that or incurred in making service and the reasonable expenses, including attorney’s fees, of any motion required to collect such service expenses.

Question 27

What is sufficient proof of service?

Answer 27

4(l)(i): if formal service is not waived, then the process server must submit proof of service to the court. Generally,this will be by an affidavit of the process server. Failure to make proof of service does not affect the validity of the service.

Question 28

What are injunctions generally?

Answer 28

Injunctions are a form of equitable relief that mandates a defendant to or prohibits a defendant from performing a specific act. Injunctions are considered an extraordinary remedy, only to be granted in limited circumstances.

Question 29

Because injunctions are extraordinary remedies, what must they include?

Answer 29

Every order granting injunctive relief relief must state the reasons for its issuance, specifically state its terms, and specify the acts that the D is restrained from/required to perform. Additionally, to protect the adverse party against harm in the event of an erroneous grant of preliminary relief, the rule expresses a preference that the moving party posts an injunction bond.

Question 30

What are the two types of injunctions?

Answer 30

Mandatory and prohibitory–the type of injunction is determined by the type of conduct affected.

Question 31

What is a mandatory injunction?

Answer 31

A mandatory injunction is a specific relief; it requires a person to engage in an affirmative act that typically changes the status quo. The moving party’s burden is particularly heaving when changing the status quo.

Question 32

What is a prohibitory injunction?

Answer 32

A prohibitory injunction is a form of preventative relief; it restrains or prohibits a party from engaging in a specified manner.

Question 33

What is a temporary restraining order?

Answer 33

A TRO preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. This interlocutory injunction may remain in effect only a limited number of days, to be set by the court, and no longer than 14 days absent good cause or consent.

Question 34

When is notice not required for a TRO?

Answer 34

Rule 65(b)(1): a TRO may be issued without notice if:

1. The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition, AND
2. The moving party’s attorney certifies in writing any efforts made to give notice and explaining why notice should not be required.

Question 35

What must a TRO contain?

Answer 35

In addition to being filed with the clerk, a TRO must state the following:

1. Date and time issued
2. the irreparable harm suffered by P; AND
3. the reasoning behind the ex parte issuance.

Question 36

What is a preliminary injunction?

Answer 36

A preliminary injunction is a form of relief issued prior to a full hearing on the merits, but only upon notice of the D and a hearing on whether the injunction should issue. Should an expedited decision on the merits be appropriate, a court may order a trial on the merits to be consolidated with the preliminary injunction hearing.

Question 37

What must a party seeking a preliminary injunction establish?

Answer 37

A party seeking a preliminary injunction must establish that:

1. He is likely to succeed on the merits
2. He is likely to suffer irreparable harm in the absence of relief;
3. The balance of equities is in his favor, AND
4. The injunction is in the best interest of the public.

Question 38

What is a permanent injunction?

Answer 38

A permanent injunction is a determination on the merits. Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution. The standard for a permanent injunction is essentially the same as a preliminary injunction except that the P must actually show success on the merits.

Question 39

What are the limitations on permanent injunctions?

Answer 39

The federal court cannot use an injunction to prohibit pending state-court proceedings when a conflict of jdx occurs between state and federal courts unless expressly authorized by statute.

Also: a federal court cannot grant an injunction against the collection of state taxes.

Finally: In crim law, state criminal proceedings that have not yet been instituted cannot be enjoined unless to do so would prevent irreparable harm, and appellate remedies would be inadequate to provide relief.

Question 40

What is a complaint?

Answer 40

The complaint is the initial pleading in an action filed by the plaintiff and serves as notice to the opposing party.

Question 41

What must a complaint include?

Answer 41

8(a): A complaint or any pleading upon which a claim is made, must include:

1. A short and plain statement of the grounds that establish the court’s subject matter jurisdiction.
2. a short and plain statement of the grounds that establish the court’s subject matter jurisdiction.
3. A demand for judgment for relief sought by the pleader.

Question 42

CA: How does pleading differ in CA state courts?

Answer 42

The Federal Rules allow notice pleading rather than fact pleading. But CA state courts require fact pleading. A P must allege ALL of the material, operative facts that make of the cause of action..

Question 43

What must all CA pleadings contain?

Answer 43

1. Statement of facts constituting each cause of action and demand for relief.
2. If punitive damages are sought, then the amount must be stated, except in actions for the recovery of actual or punitive damages in personal injury or wrongful death cases. In such cases, the D may file a request for specificity as to the nature and amount of actual damages.

Question 44

How does a complaint need to establish Subject Matter Jurisdiction?

Answer 44

A complaint in federal court must contain an allegation of the subject matter jurisdiction of the court, unless the court already has jurisdiction and the claim needs no new jurisdictional support.

Question 45

What constitutes a ‘statement of the claim’ in a federal complaint?

Answer 45

8(a)(2): requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief’ to ‘give Ds fair notice of what the claim is and what it is based on.’

Detailed factual allegations are not required, but a party may also not merely recite the elements of a cause of action with broad, conclusory statements.

Question 46

What constitutes the demand for relief in a federal complaint?

Answer 46

The demand for judgment for the relief sought may include relief in the alternative or different types of relief (e.g. monetary damages, equitable relief, or a declaratory judgment). The demand in a contested case does not limit the nature or scope of relief that the trial court may grant. The plaintiff is entitled to whatever relief is appropriate to the claims alleged in the complaint and proved at trial.

Question 47

What are the special circumstances that cause a party to plead with more detail than is generally required?

Answer 47

1. Capacity
2. Fraud or Mistake
3. Conditions Precedent
4. Official Document Act
5. Judgment
6. Special Damages
7. Time and place
8. Time for filing and service

Question 48

When does capacity require pleading in more detail?

Answer 48

Rule 9(a): except when required to show that the court has jdx, a pleading need not allege a party’s capacity to sue or be sued. To challenge a party’s capacity, the other party must make a specific denial and state any supporting facts that are peculiarly within the party’s knowledge.

Question 49

When would fraud or mistake require pleading in more detail?

Answer 49

Under rule 9(b): a party alleging fraud or mistake must state with peculiarity the circumstances constituting fraud or mistake.

Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally though.

Question 50

When would conditions precedent require pleading in more detail?

Answer 50

9(c): in pleading conditions precedent in a contract action, a party may allege generally that all conditions precedent have occurred or been performed. When denying that a condition precedent has occurred or been performed, however, that must be pleaded with particularity.

Question 51

When does the official document act require pleading in more detail?

Answer 51

9(d): In pleading an official document or official act, it is sufficient to allege that the document was legally issued or that the act was legally done.

Question 52

When does a judgment require pleading in more detail?

Answer 52

Rule 9(e): in pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, it is sufficient to plead the judgment or decision without showing any jurisdiction to render it.

Question 53

When does special damages require pleading in more detail?

Answer 53

9(g): when an item of special damage is claimed, it must be specifically stated. Special damages are damages that do not normally or necessarily flow from an event.

Question 54

When does time and place require pleading in more detail?

Answer 54

When relevant and material, facts regarding time and place must be specified in detail.

Question 55

When does time for filing and service require pleading in more detail?

Answer 55

A complaint will generally be filed before service on the D, which must then generally occur within 120 days of filing. For time limits, see rules on time limits for service.

Question 56

How must a D respond to a complaint?

Answer 56

Rule 12: within 21 days of service of process, a D must respond to a complaint either by an answer or by a pre-answer motion, or she must seek additional time to answer. If D does not do one of these steps, she risks a default.

Question 57

What are the bases for filing a 12(b) Motion to dismiss?

Answer 57

Prior to filing any answer, a D may file a motion to dismiss based on any of the following defenses:

1. Lack of Subject Matter Jurisdiction
2. Lack of Personal Jurisdicition
3. Improper Venue
4. Insufficient Process
5. Insufficient Service of Process
6. Failure to state a claim on which relief can be granted
7. Failure to join a necessary or indispensable party

12(b) Motions generally seek dismissal of the claim, but if objecting to service, you are seeking to squash the service, not the claim.

Question 58

What is the timing of a 12(b) motion to dismiss for lack of subject matter jurisdiction??

Answer 58

The defense of lack of subject matter jurisdiction can be raised at any time.

Question 59

What is the timing of a 12(b) motion for lack of personal jdx, improper venue, insufficient process or insufficient service of process?

Answer 59

A 12(b) motion to dismiss based on the following must be raised in a pre-answer motion, or, if no pre-answer motion is made, in the answer, or the defenses will be waived:

• Lack of personal jdx
• Improper venue
• insufficient process
• insufficient service of process

Question 60

What is the timing required of a 12(b) motion to dismiss for failure to state a claim upon which relief may be granted and the failure to join necessary or indispensable parties?

Answer 60

The defenses of failure to state a claim for which relief can be given and failure to join necessary or indispensable parties may be raised in any pleading, in a motion for judgment on the pleadings, or at trial.

Question 61

CA: What are the three objections to a compaint that a D can put forth in CA?

Answer 61

Answer, general demurrer, special demurrer. These can be addressed to either the entire complaint or any of it causes of action.

Question 62

CA: What is a general demurrer?

Answer 62

CA: The grounds for a general demurrer are:

1. the pleading fails to state facts sufficient to constitute a cause of action, or:
2. The court lacks subject matter jurisdiction

NOTE: these are also sufficient grounds for drafting a motion for judgment on the pleadings

Question 63

CA: what are the grounds for a special demurrer?

Answer 63

The grounds for a special demurrer in CA are:

1. Lack of legal capacity
2. The existence of another pending action
3. Defect in joinder or misjoinder of parties
4. Uncertain pleading
5. Failure to plead whether a contract is written or oral,
6. Failure to file certain certificates.

Question 64

CA: What may the court consider when ruling on demurrers?

Answer 64

CA: in ruling on demurrers, the court may only consider the material allegations of the complaint and matters subject to judicial notice. A plaintiff may file a demurrer to a D’s answer.

Question 65

CA: what is a motion to quash service of summons?

Answer 65

In CA, a defendant who objects to the court’s exercise of personal jdx must do so at the earliest opportunity, usually by a motion to quash service of summons. When a D does so prior to filing an answer, demurrer or motion to strike, he will not be deemed to have made a general appearance. NOTE: unlike in federal practice, a D in CA who objects to pjdx in an answer is deemed to have made a general appearance, and may not then object to pjdx.

Question 66

What is a motion to state a claim for which relief can be granted generally?

Answer 66

Under rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim.

Question 67

What does the court consider when deciding on a 12(b) (6) (failure to state a claim) motion?

Answer 67

In deciding a motion under rule 12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.

Question 68

What is the level of specificity required in a complaint so as to not be subject to a 12(b)(6) motion?

Answer 68

The facts alleged in the complaint must ‘raise a right to relief above the speculative level…on the assumption that all allegations in the complaint are true (even if doubtful in fact.’ In other words, the complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.

Question 69

What may a court consider when ruling on a 12(b)(6) motion?

Answer 69

When ruling on a motion to dismiss under Rule (12)(b)(6), the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. If a matter outside the pleadings, such as an affidavit, is presented to the court and is not excluded by the court in its review, then the motion must be treated as a motion for summary judgment under rule 56, and all parties must be given an opportunity to present all material information for the court’s consideration.

Question 70

What is the two-step analysis for deciding on a motion to dismiss under Rule 12(b)(6)?

Answer 70

1: The court must identify and reject legal conclusions unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts. For example, a complaint that alleges that a D caused an injury, without explanation as to how it occurred, does not meet the requirements of 8(a) and, as a result, cannot survive a 12(b)(6) motion.
2: The court should assume the truth or voracity of well-pleaded factual allegations and should include a ‘context-specific’ analysis that ‘draws on the court’s judicial experience and common sense’ to determine whether the allegations ‘plausibly give rise to an entitlement of relief.’

Question 71

What are the outcomes of a 12(b)(6) motion?

Answer 71

Motion Granted: If the claim is dismissed, then the plaintiff may generally amend the pleading and continue the action. If the P does not wish to do so, then a judgment will be entered, and the P can appeal.

Motion Denied: If the D’s motion to dismiss is denied, then the D may gen either answer the claim or allow a default judgment to be entered and then appeal.

Question 72

What is a motion for judgment on the pleadings?

Answer 72

After the pleadings are closed, a party may move for judgment on the pleadings pursuant to Rule 12(c). A motion for Judgment on the pleadings allows a court to dispose of a case when the material facts are not in dispute and judgment on the merits can be achieved based on the content of the pleadings. Motions under rule 12(c) are not often utilized because of the availability of motions under rule 12(b)(6) and motions for summary judgment under Rule 56.

Question 73

What is the timing required for a Rule 12(c) Motion for Judgment on the Pleadings?

Answer 73

It must be made after an answer is filed.

Question 74

What is the standard for a 12(c) motion for judgment on the pleadings?

Answer 74

The standard for a motion under rule 12(c) is generally the same as that for a motion under rule 12(b)(6). Likewise, if matters outside the pleadings are presented to the court and the court does not exclude them, then the motion is to be treated as a motion for summary judgment under rule 56.

Question 75

What is a motion for a more definite statement?

Answer 75

If a claim for relief is so vague or ambiguous that a party cannot reasonably draft a responsive pleading, then the responding party may move for a more definite statement pursuant to Rule 12(e). The motion must specify the defects in the pleading, as well as the details sought by the party making the motion.

Question 76

What is the standard for a rule 12(e) motion for a more definite statement?

Answer 76

Courts are generally reluctant to grant a motion for a more definite statement, because discovery is available to get more information about an issue. The standard for granting such a motion is whether the pleading provides enough information from which the responding party can draft a responsive pleading and commence discovery. A motion for a more definite statement may be appropriate when the pleader fails to allege facts required to be specifically pleaded, such as fraud or mistake under Rule 9(b).

Question 77

What is the timing of a rule 12(e) motion for a more definite statement?

Answer 77

The party must make a motion for a more definite statement before filing a responsive pleading. The court may strike a failure to respond to such a motion within 14 days of notice.

Question 78

What is a motion to strike?

Answer 78

Rule 12(f): if a pleading contains any insufficient defense, or redundant, immaterial, impertinent or scandalous material, then the court, upon motion or upon its own initiative, may order that such a defense or material be stricken.

Question 79

What is the timing of a 12(f) motion to strike?

Answer 79

When a responsive pleading is permitted, the responding party must move to strike prior to responding to such a pleading. When no responsive pleading is permitted, the party must make a motion to strike within 21 days after service of the pleading.

Question 80

CA: What are the two types of CA motions to strike?

Answer 80

Motion to strike and Anti-SLAPP motion to strike

Question 81

CA: what is a motion to strike in CA?

Answer 81

A party may move to strike any irrelevant, false, or improper matter included in a pleading, or any part of a pleading not filed in conformity with statute, rule or court order. The motion must be filed in the time allowed to respond to a pleading (30 days).

Question 82

CA: what is an Anti-SLAPP motion to strike?

Answer 82

CA: A D may, within 60 days after the service of the complaint, file and anti-SLAPP motion to strike the complaint when the plaintiff has filed a Strategic Lawsuit Against Public Participation.

In such a motion, the D must show that the cause of action in the complaint arises form a protected activity (the right to free speech or to petition for the redress of grievances). Upon such showing, the burden shifts to the plaintiff to show a probability prevailing on the merits. Anti-SLAPP motions are restricted for use only in response to certain public interest lawsuits, class actions, and actions that arise from commercial statements or conduct.

Question 83

What is an answer, generally?

Answer 83

An answer is a pleading by the defendant that responds to the plaintiff’s complaint. A plaintiff would also file an answer if responding to a defendant’s counterclaim.

Question 84

What are the admissions and denials required in an answer?

Answer 84

Rule 8(b): The answer must admit or deny the allegations of a plaintiff’s complaint. If the D is without knowledge or information sufficient to form a belief as to the truth or falsity of an allegation, then the D must say so in the answer. This response has the effect of a denial. Before pleading lack of sufficient knowledge, however, the D must make a reasonable investigation into whether the info exists and how difficult it would be to ascertain.

Question 85

What is a specific denial in an answer?

Answer 85

A specific denial is a denial of a particular paragraph or allegation in a complaint or claim for relief (counter-claim, cross-claim etc). A party can respond to each paragraph of the complaint by either denying the allegation in the paragraph, admitting it, pleading insufficient knowledge to either admit or deny it, or admitting part of the allegation and either denying or pleading insufficient knowledge as to the rest.

Question 86

What is a general denial in an answer?

Answer 86

A party can answer with a general denial, stating that he denies every allegation of the complaint. This may only be done, however, if the party intends in good faith to controvert all of the allegations.

You can also give a qualified general denial, stating that you deny every allegation in the complaint, except certain specified allegations.

Question 87

What is the effect of a failure to deny an allegation in an answer?

Answer 87

An allegation, other than one relating to the amount of damages, will be deemed admitted if a responsive pleading is required and the allegation is not denied.

Question 88

How are affirmative defenses handled in an answer?

Answer 88

The answer must state any avoidance or affirmative defense that the D or responding party has, or that defense will be deemed waived.

Question 89

What are some of the affirmative defenses?

Answer 89

1. Accord and satisfaction
2. Arbitration and award
3. assumption of risk
4. Contributory negligence
5. Duress
6. Estoppel
7. Failure of consideration
8. Fraud
9. Ilegality
10. Injury by fellow servant
11. laches
12. license
13. payment
14. Release
15. Res Judicata
16. Statute of Frauds
17. Statute of Limatations
18. Waiver

Question 90

How must counterclaims be handled in an answer?

Answer 90

If a D has a claim against the P, then the D may state it as a counterclaim in the answer to the complaint. Under certain circumstances, a counterclaim will be compulsory and must be pleaded or it will be precluded in any future litigation.

Question 91

How much time do you have to serve an answer when there is no motion made under Rule 12?

Answer 91

A D must serve an answer within 21 days after being served with a summons and complaint.

If the D has timely waived service under rule 4(d), then the D must serve the answer within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the D outside of any judicial district of the U.S.

Question 92

How much time do you have to serve an answer when is a motion made under Rule 12?

Answer 92

When a motion is made under Rule 12, a D will not have to file an answer while the motion is pending. If the court denies or postpones deciding on the motion until a trial on the merits, then the answer must be served within 14 days after notice of the court’s actions. Same for motion for a more definite statement.

Question 93

What is the CA rule on the content of an answer?

Answer 93

CA law also allows general and specific denials based on information or belief. However, if the P has filed a verified complaint, the D must respond with a verified answer containing specific details. Any material allegations not denied are deemed admitted.

Question 94

What is the CA rule on the timing of an answer?

Answer 94

30 days from date of service to file an answer. If the D files a demurrer or motion to strike that is then denied, an answer must be filed within 10 days of service of notice for the denial.

Question 95

What is the CA rule on content of a cross-complaint?

Answer 95

If the D seeks affirmative relief against a P, it must be done in a cross-complaint, not an answer. In CA, cross-complaint includes what in the federal system are called counterclaims, cross-claims and third-party complaints. When a D has a related cause of action against the P, it must be brought as a compulsory cross-complaint or it will be barred.