Pleadings Flashcards
How to Present Defenses
Rule 12(b)
(5 main elements)
How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(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 (judgement as a matter of law); and
(7) failure to join a party under Rule 19 (Necessary and permissive joinder of parties)
General Rules of Pleading
Claim for Relief
Rule 8(a)
(3 elements)
(a) Claim for relief
- short and plain statement of the grounds for the court’s jurisdiction
- short and plain statement of the claim showing the pleader is entitled to relief
- a demand for the relief sought, which could include relief in the alternative or diff. types
- A pleading can violate Rule 8(a) by being too long (Gordon v. Green 4000 page complaint)
- A pleading can violate Rule 8(a) – and thus be subject to a 12(b)(6) attack – if it is conclusory and/or does not contain facts that set forth a plausible claim for relief
Iqbal
(2 part test)
- Twombly is applicable to all such actions regardless of subject matter.
- Two part test:
- The principle that a court must accept as true all allegations in a complaint does not apply to legal conclusions (e.g., negligence, conspiracy)
- Only a claim that states a “plausible” claim for relief will survive a motion to dismiss. The court must “draw on its judicial experience and common sense.”
Twombly
- (Souter writing for majority) For anit-trust cases conclusory statements of claims will no longer survive a motion to dismiss.
- Instead, a complaint must contain enough facts to raise a reasonable expectation that the discovery process will reveal relevant evidence to support the claim.
Pleading Special Matters
Rule 9(b)
Fraud or Mistake; Conditions of Mind:
- In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.
- Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
Purpose & Problem with strict pleading standards…
Purpose: prevent cost and expense of discovery if case is a nonstarter; avoid unfair pressure to settle
Problem: crucial information is often in the hands of the defendant and cannot be obtained absent discovery
Court is more liberal in accepting pleadings when π is pro se
Signature, Representations, Sanctions
Rule 11
(5 elements)
a. Applies to all pleadings, other papers signed by attorney (there are also separate sanctions provisions in the discovery rules)
b. Signature constitutes representations:
(1) no improper purpose;
(2) contentions are warranted by existing law or non-frivolous argument for extending law;
(3) factual contentions are warranted or likely will be after reasonable investigation;
(4) factual denials are warranted based on evidence or reasonably based on belief or lack of information
c. Sanction must be least severe sanction to achieve the purpose of Rule 11 (Seawright)
General Rules for Relief
Defenses: Admissions and Denials
Rule 8(b)
(6 elements)
(b) Defenses; Admissions and Denials.
(1) Response to a pleading:
(A) short and plain statement of defenses to each claim
(B) admit or deny
(2) Denials must respond to the substance of the allegation.
(3) Deny all (including JD) = general denial
(4) Denying Part of an Allegation = admit truth and deny the rest
(5) Lacking Knowledge or Information = denial
(6) Effect of Failing to Deny = admitted
General Rules of Pleading
Affirmative Defenses
Rule 8(c)
(2 elements)
(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
- accord and satisfaction;
- arbitration and award;
- assumption of risk;
- contributory negligence;
- duress;
- estoppel;
- failure of consideration;
- fraud;
- illegality;
- injury by fellow servant;
- laches;
- license;
- payment;
- release;
- res judicata;
- statute of frauds;
- statute of limitations; and
- waiver.
(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.
Default Judgement
Rule 55
Default Judgement - ▲ fails to plead or otherwise defend
- For a certain amount = clerk enters
- In all other cases = court determines and enters
Dismissal of Actions
Rule 41
(2 elements)
(a) Voluntary dismissal
* by π, w/o prejudice unless previously voluntarily dismissed
(b) Involuntary dismissal
* by ▲, with prejudice (unless PJ, venue, 12(b)(6))
Summary Judgement
ΣJ
Rule 56(a)
Summary Judgement
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Motion for Judgement on the Pleadings
Rule 12(c)
(2 elements)
Judgement on the Pleadings
After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.
Does NOT involve evidence.
Judicial Notice
Rule 201
Portland is in Oregon
