Pleadings

Question 1

Commencement of proceedings

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. Walker v. Armco Steel Corp., 446 U.S. 740 (1980). Thus, if state law provides that an action is commenced by service of process on a defendant, then the state rule will control for the purposes of diversity jurisdiction.

Question 2

Motions, hearings, and affidavits

Answer 2

Under Rule 6(c), a written motion and notice of a hearing must be served at least 14 days prior to the hearing, unless (i) the motion can be heard ex parte, (ii) the Rules provide for it, or (iii) the court orders otherwise. An opposing affidavit must be served at least seven days before the hearing, unless otherwise ordered.

Question 3

Waiver of service

Answer 3

Pursuant to Rule 4(d), a competent individual, corporation, or association that is subject to service has a duty to avoid unnecessary expenses of serving the summons by waiving service. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of the summons. This request is not available if the defendant is a government entity or a minor, or if the defendant is incompetent.

Question 4

Request for waiver

Answer 4

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.

It must be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form, and it must give the defendant a reasonable time of at least 30 days after the request was sent (or at least 60days if sent to a foreign defendant) to return the waiver.

Question 5

Effect of waiver

Answer 5

if a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside the United States.

Question 6

When service is waived what is the date of service?

Answer 6

If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service. Rule4(d)(4). However, the defendant must still answer the complaint within 60 (or 90, if foreign) days from the date on which the notice was sent.

Question 7

Failure to waive service

Answer 7

Under Rule 4(d)(2), if a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, then the court must impose on the defendant the expenses that are incurred in making service and the reasonable expenses, including attorney’s fees, of any motion required to collect such service expenses.

Question 8

Proof of service

Answer 8

Under Rule 4(l)(1), 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 9

Injunctions

Answer 9

Rule 65 permits an injunction, which is a form of equitable relief mandating that a defendant perform a specified act or prohibiting a defendant from performing a specified act. An injunction is considered an extraordinary remedy, only to be granted in limited circumstances.

Question 10

What information should the injunction contain?

Answer 10

Every order granting injunctive relief must state the reasons for its issuance, specifically state its terms, and specify the acts that the defendant is restrained from performing or 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 post an injunction bond

Question 11

Mandatory injunctions

Answer 11

A mandatory injunction, which is a specific relief, requires a person to engage in an affirmative act that typically changes the status quo.

When the injunction is directed at providing mandatory relief, as opposed to preserving the status quo, the moving party’s burden is particularly heavy.

Question 12

Prohibitory injunctions

Answer 12

A prohibitory injunction, which is a form of preventive relief, restrains or prohibits a party from engaging in a specified behavior.

Question 13

Temporary Restraining Orders

Answer 13

A temporary restraining order (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.

Question 14

How long can a TRO last?

Answer 14

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 unless good cause exists or the adversary consents. Rule 65(b)(2).

Question 15

Are TRO appealable?

Answer 15

TROs are not generally immediately appealable, unless they have the effect of an injunction, as when the court extends the length of the TRO beyond the time limit specified in the rules.

Question 16

Do you need to provide notice of the TRO?

Answer 16

A TRO may issue without notice to the adverse party if:

i) The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and
ii) The movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

Question 17

What does the TRO contain?

Answer 17

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

i) The date and time issued;
ii) The irreparable harm suffered by the plaintiff; and
iii) The reasoning behind the ex parte issuance.

Question 18

Motion to dissolve (TRO)

Answer 18

If the TRO is issued without notice, the adverse party may appear and move to dissolve or modify the TRO, but must give the party who obtained the TRO two days’ notice unless a shorter time is set by the court. Rule 65(b)(4).

Question 19

Preliminary injunctions

Answer 19

A preliminary injunction is a form of relief issued prior to a full hearing on the merits, but only upon notice to the defendant 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. Rule 65(a).

Question 20

What does a person seeking a preliminary injunction establish?

Answer 20

A plaintiff seeking a preliminary injunction must establish that:

i) He is likely to succeed on the merits;
ii) He is likely to suffer irreparable harm in the absence of relief;
iii) The balance of equities is in his favor; and
iv) The injunction is in the best interests of the public.

Question 21

Permanent injunction

Answer 21

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 for a preliminary injunction except that the plaintiff must show actual success on the merits

Question 22

Complaint

Answer 22

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

Question 23

What does a complaint need to contain?

Answer 23

Under Rule 8(a), a complaint (or any pleading in which a claim is made) must include:

i) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;
ii) A short and plain statement of the claim establishing entitlement to relief; and
iii) A demand for judgment for the relief sought by the pleader.

Question 24

What is a short and plain statement of the claim?

Answer 24

Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” to “give the defendant fair notice of what [the] plaintiff’s claim is and the grounds upon which it rests.”

Detailed factual allegations are not required, but a party may not merely recite the elements of a cause of action with broad, conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A complaint should not be dismissed for an imperfect statement of the legal theory.

Question 25

What is the demand for judgment for the relief sought?

Answer 25

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. Rule 54(c). A plaintiff’s complaint may include relief in the alternative or different types of relief (e.g., monetary damages, equitable relief, or a declaratory judgment).

Question 26

When is the complaint filed?

Answer 26

A complaint will generally be filed before service on the defendant(s), which must then generally occur within 90 days of filing. Rule 4(m). For time limits, see §V.B.2. Time Limit for Service, supra.

Question 27

When does the party need to state circumstances with particularity?

Answer 27

Under Rule 9(b), a party alleging fraud or mistake must state with particularity the circumstances constituting fraud or mistake.

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

Question 28

Special damages

Answer 28

Under Rule 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 29

How definite do the facts in a complaint need to be?

Answer 29

The U.S. Supreme Court has held that the facts alleged in the complaint must “raise a right to relief above the speculative level…on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
The complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.

Question 30

What does the court consider in a motion to dismiss?

Answer 30

In 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 31

Courts 2 step analysis for adjudication motions to dismiss

Answer 31

THe U.S. Supreme Court has established a two-step analysis for adjudicating a motion to dismiss under Rule 12(b)(6). First, 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 defendant caused an injury, without explanation as to how it occurred, does not meet the requirements of Rule 8(a) and, as a result, cannot survive a Rule 12(b)(6) motion. Second, the court should assume the truth or veracity of well-pleaded factual allegations and should include a “context specific” analysis that “draw[s] on [the Court’s] judicial experience and common sense” to determine whether the allegations “plausibly give rise to an entitlement of relief.

Question 32

Granting a motion to dismiss

Answer 32

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

Question 33

Denying the motion to dismiss

Answer 33

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

Question 34

Motions for a judgment on the pleadings

Answer 34

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 a judgment on the merits can be achieved based on the content of the pleadings. Motions under Rule 12(c) are not often used because of the availability of motions under Rule 12(b)(6) and motions for summary judgment under Rule 56.

A motion under Rule 12(c) must be made after an answer is filed.

Question 35

Motion for a more definite statement

Answer 35

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 36

Can a motion to dismiss be amended?

Answer 36

Although not specifically provided for in the Rules, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. The courts reason that “an amendment made just a few days following the motion is consistent with the spirit of Rule 12(h) and neither prejudices the plaintiff nor burdens the court.”

Question 37

Raising counter claims

Answer 37

If a defendant has a claim against the plaintiff, then the defendant may state it as a counterclaim in the answer to the complaint. Under certain circumstances, a counterclaim will be compulsory (see § VI.D.2. Counterclaims, infra) under Rule 13; it must be pleaded or it will be precluded in any future litigation.