Pleadings Flashcards
Failure to timely object
The defendant must either object in a pre-answer motion or its answer, or amend its answers within 21 days of filing, to preserve any objections on grounds of, e.g., personal jurisdiction.
Else, they are waived.
Answer
A defendant has 21 days to serve a response to a complaint or, if it has timely waived service, within 60 days after the request for the waiver was sent.
An answer must not only admit or deny the allegations of the plaintiff’s complaint but also state applicable affirmative defenses.
The answer must also be filed with the court clerk within a reasonable time after service.
Demand for a jury trial
Under Rule 38(b), any party may make a demand for trial by jury. The demand must be in writing and may be filed separately or made in a pleading. A party waives a jury trial unless her demand is properly served and filed.
A demand for a jury trial must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.
Holidays and compliance with deadlines
In computing whether a party has complied with the rules for undertaking an action within the specified time period, when the last day of the period would otherwise fall on a holiday, the action may be undertaken on the next non-holiday weekday.
Weekend days, in contrast, are counted in determining whether a party has taken action.
Amended pleadings: deadline to respond
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.
Failure to deny allegations: answer
An allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer.
The same, however, is not true if the allegation relates to the amount of damages.
If a defendant specifically denies some allegations and does not address others, the non-addressed allegations are deemed admitted.
Amended pleadings
If no responsive pleading is required, a party may amend a pleading once as of right within 21 days.
If a responsive pleading is required, the party may amend:
(1) within 21 days of service of the responsive pleading; or
(2) within 21 days of being served with a motion to dismiss under Rule 12(b), whichever is earlier.
If a party seeks to amend outside this time period, the court should freely give leave to amend a pleading when justice so requires.
Waiver of the defense of lack of personal jurisdiction
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.
Failure to deny allegations: reply
Because a plaintiff need only reply to a defendant’s answer if so ordered by the court, Rule 7(a)(7), the plaintiff is deemed to deny any allegations in the defendant’s answer if not ordered to reply.
Denials extend to affirmative defenses raised by the defendant.
Relation back: change of defendant
Under Rule 15, an amendment to a pleading that changes the named defendant relates back to the date of the original pleading if:
(1) it asserts essentially the same claim or defense, and;
(2) the new party knew or should have known of the potential action and received notice within 90 days after the filing of the original complaint.
Demand for a jury trial: new cause of action
If a new cause of action that was unknown at common law is created—e.g., by federal statute—then the court must look to whether the remedy sought is legal rather than equitable; if it is legal, a jury should be allowed.
As long as there are material factual issues to be decided in an action at law and a jury trial demand is timely made, those issues are triable to the jury.
Motion to strike: insufficient defenses
If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading:
- either before responding to the pleading; or
- if a responsive pleading is not permitted, within 21 days after being served with the pleading.
Relation back
An amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading.
Amended pleadings: undue prejudice
A party’s failure to include a claim or defense in her pleading may be excused if the factual basis for the claim or defense did not materialize until discovery was taken.
