Pleadings Flashcards
What happens if a defendant does not assert the affirmative defense of the Statute of Frauds in the plaintiff’s complaint?
The defense is considered waived
Can P get injunctive relief if D breached a contract that constituted 80% of its business?
No because while (1) P can succeed on merits and (3) balance of equities is in its favor, (4) the public doesn’t care and most importantly (2) money damages is enough so harm is not irreparable
Does a D concede an issue of damages if in its answer to the compliant, failed to address P’s allegations relating to amount of damages?
No because while allegations are generally considered admitted if not denied, this concession does not apply to the amount of damages in a complaint
Should a court grant a motion to quash service conducted through certified mail if the forum state doesn’t permit service by certified mail but the state in which D resides does?
No, the court should deny the motion because service can be made under either (1) state law of forum state or (2) state where service is made
How should a court treat D’s assertion of non-liability by way of novation in its answer to P’s complaint if P did not reply to the allegation and the court did not order P to do so?
The court should treat the novation as denied by P b/c P is only allowed to respond to D’s answer if the court orders P to do so - otherwise P is deemed to deny affirmative defenses if not ordered by court to reply
Can a court allow D to amend its complaint without leave of court to include defense of lack of personal jurisdiction after 15 days of serving the answer if (1) P sued D in State X for a car accident that happened in State Y, (2) D is a citizen of State Y, (3) D has no connection to State X?
Yes, a party can amend its pleading once within 21 days after serving it AND party only waives defense of personal juridiction if it fails to mention it in (1) pre-answer motion, (2) responsive pleading, or (3) amendment within 21 days
Can a P amend its complaint to name the proper D 60 days after filing the complaint if (1) the original complaint was filed one day before SoL expired, (2) proper D was aware of suit and the fact that it was the proper D, and (3) proper D pleads expiration of SoL as a defense?
Yes, because the amendment will relate back to the date of the original pleading since it (1) asserts same claim / defense, (2) proper D knew / should know action, (3) proper D got notice w/in 90d of original complaint
Why can D successfully challenge a temporary restraining order in a federal copyright case in which (1) P orally requested that D not be given notice of motion w/o elaboration, (2) P gave written oath that it would suffer immediate and irreparable injury before a hearing can be scheduled, and (3) order expires 12 days after the order is issued?
Because courts can only issue a temporary restraining order if P had certified in writing any efforts made to give notice and why notice shouldn’t be required - in all cases, either (1) notice or (2) reasons for no notice certified in writing is required
Can P’s attorney continue to pursue motion for sanctions by filing with the court if (1) P served D’s attorney with motion for sanctions for failure to reasonably investigate factual contentions in a counterclaim, and (2) 20d later D’s attorney filed notice of dismiss for counterclaim?
No b/c although D’s attorney violated certification to make reasonable investigations behind the factual contentions made in the counterclaim, D has 21 days to amend or dismiss the counterclaim and since it dismissed it within 21d, then P is not allowed to pursue sanctions
