Pleadings Flashcards
What 3 things must the plaintiff’s complaint contain?
— Subject Matter Jurisdiction grounds
— Statement of claim, showing you’re entitled to relief
— A demand for relief sought
Your complaint must state a plausible claim, but which 3 types of cases must be pleaded with even more particularity?
Fraud
Mistake
Special Damages
Broadly speaking, when a Defendant receives the complaint, and in order to avoid default, what must they do? In what timeframe must the Defendant take such action?
Either respond by (1) Motion; or (2) Answer
D must do this within 21 DAYS after being served with Process (60 days if Process waived; 90 days if outside U.S.)
What are motion?
They are a request for a court order, rather than a pleading.
The Defendant can issue two types of “issue of form,” what are they?
- Motion for a more definitive statement — MUST be made before answering.
- Motion to Strike — asking court to remove redundant material from the pleadings.
Which Defences must the Defendant raise at any time during the case (and even after!)?
Lack of Subject Matter Jurisdiction
Which 4 Defences must be raised by the Defendant in their first response, otherwise they’re deemed waived?
(1) Lack of Personal Jurisdiction
(2) Improper Venue
(3) Improper Process
(4) Improper SERVICE of Process
Which 2 defences can the Defendant raise anytime throughout trial?
Failure to state a claim
Failure to join an indispensable party
What if the Defendant makes a motion to dismiss and it’s denied?
Defendant must then serve their answer within 14 DAYS of the court rejecting their motion.
In an Answer, the Defendant needs to do what two things?
(1) Respond to the allegations by either: (a) admitting; (b) denying; or (c) stating that you lack sufficient information.
(2) Raise affirmative defences
Can a plaintiff amend their complaint after they’ve served it on the Defendant?
Yes, the plaintiff has the right to amend their complaint ONCE within 21 Days of D’s first response.
Can a Defendant amend their answer, once served on the plaintiff?
Yes, once within 21 Days of service if their answer.
How can the Defendant “save” the waivable defences he failed to include in his first response?
Include them in the amendable answer within the 21 Day timeframe.
What happens if there is no right to amend the complaint?
The party must seek leave from the court.
How can the complaint be amended during the trial?
It can be Varied if the evidence does not match what was originally pleaded.
When can a claim be amended to “relate back?”
A pleading can be amended to join a new claim via “relation back” if they concern the SAME TRANSACTION or OCCURRENCE as the original claim.
How can a claim relate back to include a new defendant after the statute of limitations has run?
Amended claim can relate back if:
(1) They concern the same transaction or occurrence as the original pleading
(2) The new Defendant part knew of this case within 90 days of the filing; and
(3) This Defendant also knew that if it wasn’t for the mistake, they would have been the target of the original claim.
When will a plaintiff file a Motion to Supplemental Pleadings?
When something happens after the pleading were filed that relates to plaintiff’s existing claim against the D.
What is Rule 11?
When an attorney (or pro se party) signs documents, they certify to the court each time that, to the best of their knowledge, and after reasonable inquiry:
— The document is not for an improper purpose
— The Legal contentions are warranted by law
— The factual contentions and denials have evidentiary support
If the counter-party violates Rule 11, what can you do?
Serve a motion on the other party and they have 21 days to fix the problem. If they fail to do so, then you file your motion with the court.
