PLEADINGS

Question 1

COMPLAINT

Answer 1

must contain:

• statement of grounds of SMJ
• a short and plain statement of the claim- showing entitlement to relief
• a demand for relief sought
• must plead facts supporting a plausible claim
• fraud, mistake and special damages must be plead with more particularity

Question 2

DEFENDANT’S RESPONSE

Answer 2

Can be be done:

1. by motion
2. by answer
   * * either must be done 21 days after service of process
   * * 60 days if service is waived and service is done through mail

Question 3

MOTIONS (RULE 12)

Answer 3

1. Issues of form:
   - 12(e) motion for a more definitive statement
   - 12(f) motion to strike**
2. Rule 12(b) defenses:
   - lack of SMJ
   - lack of personal jurisdiction** (waivable)
   - improper venue** (waivable)
   - improper process** (waivable)
   - improper service** (waivable)
   - failure to sate a claim
   - failure to join indispensable party
   * *WAIVABLE defenses MUST be put in the FIRST Rule 12 motion or answer or they are WAIVED

Question 4

ANSWER

Answer 4

1. respond to allegations in the complaint
   - admit
   - deny
   - state lack of sufficient information to admit or deny (effect of a denial, but cannot use if you have the ability to find the information easily)
2. Raise affirmative defenses:
   - inject new facts into the case which will allow defendant to win
   - failure to assert an affirmative defense deems the defense waived (SOL, statute of frauds, re judicata, self-defense)

Question 5

AMENDED PLEADINGS

Answer 5

Four Fact patterns:

1. Right to amend:
   - P: no later than 21 days after defendant serves first Rule 12 response
   - D: no later than 21 days after serving answer
2. No right to amend
   - must request leave of court
   - based on delay prejudice, futility of amendment
3. Variance:
   - Evidence AT TRIAL does not match what was pleaded
   - must object, not admissible because of variance, don’t object- admissible
4. Relation back (SOL has run):
   - to join a claim not originally asserted: amended pleadings relate back if they concern the same conduct, transaction, or occurrence as the original pleading.
   - to change a defendant: will relate back if the amendment concerns the same conduct, transaction, or occurrence as the original; the new defendant knew of this case within 90 days of filing; knew or should have known that but for a mistake would have been named originally.

Question 6

SUPPLEMENTAL PLEADINGS

Answer 6

• set forth things that happened after the pleading was filed.
• Rule 11; applies to ALL things except discovery
  attorney’s certify after a reasonable inquiry that to the best of knowledge and belief: paper not for improper purpose; legal contents warranted by law; factual contentions and denials have evidentiary support
• court must give a chance to be heard before sanctioning- attorney’s, party and firm can be sanctioned
• Serve motion on other party for sanctions, party has 21 days to fix the problem and avoid sanctions and if the issue is not fixed then the motion can be filed.