Pleadings Flashcards
Proof of service
The federal rules mandate that, unless formal service is waived, a process server must submit proof of service to the court. However, the failure to make proof of service does not affect the validity of the service
When should a defendant raise the defense of insufficient service of process?
A defendant generally has 21 days after the service of process to file a pre-answer motion to dismiss for insufficient service of process.
Motion to dismiss for failure to state a claim
In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must take all well-pleaded facts in the complaint as true and resolve all doubts and inferences in the complainant’s favor. Here, the defendant is the complainant.
When can a preliminary injunction be sought?
A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public. There is no irreparable injury when monetary damages are potentially available to compensate.
Allegations that relate to damages
Although an allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to the amount of damages.
Answers to amended complaints
Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading.
After a full hearing on the motion for a preliminary injunction, the court concluded that it was unclear whether movant would ultimately prevail in its suit and that discovery would likely be needed. should a preliminary injunction be granted under these circumstances?
A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public. Element (1) not met if not clear whether or not the movant would prevail.
Does a plaintiff reply to the Defendants answer when it contains affirmative defenses?
Under Rule 7(a)(7), a reply to the defendant’s answer is made only when the plaintiff is ordered to do so by the court. Thus, the plaintiff is deemed to deny any allegations in the defendant’s answer, including any affirmative defenses, if not ordered to reply.
Can you amend your answer to raise lack of PJ?
Pursuant to Rule 15(a)(1)(a), a party may amend its pleading once as a matter of course within 21 days after serving it. Under Rule 12(h)(1)(B), a party waives the defense of lack of personal jurisdiction by failing to include it in a pre-answer motion, a responsive pleading, or in an amendment allowed by Rule 15(a)(1), as a matter of course.
May the court on their own initiative impose an order one party to pay for the others attorneys fees?
A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees
Can a pleading indicate that plaintiff is relying on discovery for evidentiary support?
An attorney submitting a pleading to the court is certifying that to the best of her knowledge, information, and belief, the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
How does an attorney handle issues of notice in restraining orders?
Before a court can issue a temporary restraining order, the attorney of the party seeking the order must certify in writing any efforts made to give notice and the reasons why notice should not be required.
What can opposing counsel do once a pleading has been served that claim factual contentions contained in a pleading have evidentiary support based on a reasonable inquiry.
A party (or party’s attorney) may seek sanctions that can include the payment of reasonable attorney’s fees and other costs attributable to violation of the certification made by a party or the party’s attorney in presenting a pleading or other paper to the court. Among the certifications made is that factual contentions contained in a pleading have evidentiary support based on a reasonable inquiry.
