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Federal Civil Procedure > Pleadings > Flashcards

Pleadings Flashcards

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Civil Procedure 1L flashcards
1
Q

What are the requirements for the complaint?

A

Sally must Jerk Sal’s Carribean Duck

  1. A statement of grounds of subject matter jurisdiction;
  2. A short and plain statement of the claim, showing the plaintiff is entitled to relief;
  3. A demand for relief sought (e.g., damages, injunction, declaratory judgment)
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2
Q

The plaintiff need not allege grounds for…

A

PJ or venue.

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3
Q

What is the standard for stating the claim in the complaint?

A

You must plead facts supporting a plausible claim.

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4
Q

To determine plausibility, the judge uses….

A

her own experience and common sense.

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5
Q

The defendant can challenge the complaint by making a…

A

Rule 12(b)(6) motion.

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6
Q

What three matters must be pleaded with even more detail—with particularity or specificity?

A
  1. Fraud,
  2. Mistake, and
  3. Special Damages.
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7
Q

Rule 12 requires the defendant to respond in one of two ways:

A
  1. By motion, or
  2. by answer.
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8
Q

To avoid default judgement, the defendant must respond by no later than….

A

21 days after being served with process.

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9
Q

If the defendant waived servies, he must respond within…

A

60 days from when the plaintiff mailed the waiver form.

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10
Q

Motions are not pleadings; they are …

A

requests for a court order.

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11
Q

What are the motions regarding issues of form?

A
  • 12(e) motion for more definite statement
    • the complaintso vague or ambiguous D can’t respond;
    • must make this motion before answering;
  • 12(f) motion to strike
    • asks the court to remove redundant or immaterial things from pleadings;
    • any party may move for this.
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12
Q

What are the rule 12(b) defenses?

A

(1) lack of subject matter jurisdiction (SMJ);
(2) lack of PJ;
(3) improper venue;
(4) improper process (e.g. complaint didn’t come with summons)

(5) improper service of process;
(6) failure to state a claim;
(7) failure to join indispensable party.

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13
Q

Waivable defenses must be put in…

A

the first Rule 12 response (motion or answer) or else they’re waived.

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14
Q

Which defenses are waivable?

A

12(b)2-5

(2) lack of PJ;
(3) improper venue;
(4) improper process (e.g. complaint didn’t come with summons)

(5) improper service of process;

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15
Q

How late can D raise a failure to state a claim (Rule 12(b)(6)) or a failure to join an “indispensable” party (Rule 12(b)(7))?

A

Anytime before the end of trial.

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16
Q

There is no time limit for raising…

A

a 12(b)(1) lack of SMJ motion.

Whenever the court determines that it has no SMJ,
it must dismiss (or, if the case had been removed from
state court, must remand to state court).

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17
Q

If a MTD under rule 12 is denied, what must the defendant do?

A

Serve her answer within 14 days of notice of the denial.

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18
Q

The answer is a pleading where the defendant:

A
  1. Responds to the allegations in the complaint
  2. Raises affirmative defenses
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19
Q

All rule 12(b) defenses are also…

A

affirmative defenses.

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20
Q

Failure to deny in a pleading constitutes an admission except as to…

A

damages.

21
Q

If D fails to assert an affirmative defense in the answer, what might happen?

A

She may be deemed to have waived it. Subject to the 12b timing rules.

22
Q

Plaintiff has a right to amend her complaint once no later than:

A

21 days after the defendant served her first rule 12 response.

23
Q

Defendant has a right to amend her answer once no later than….

A

21 days after serving her answer.

24
Q

May a defendant amend her answer to assert previously omitted waivable defenses/affirmative defenses?

A

Yes. A right to amend saves waivable defenses.

25
Q

If there is no right to amend, what must the defendant do?

A

Seek leave of court.

26
Q

Leave to amend will be granted if justice so requires. What factors do courts look to in ruling on this?

A

Dogs Prey on Fish

  • Delay,
  • prejudice,
  • and futility of the amendment.
27
Q

What is a variance?

A

The evidence at trial does not match what was pleaded.

(can only come up at trial)

28
Q

If a variance occurs, and the defendant doesn’t object, what can the plaintiff do?

A

At or after trial, the plaintiff can move to amend the complaint to conform to the evidence.

29
Q

What if a variance occurs and the defendant objects?

A

The varied evidence is inadmissible.

30
Q

Amendments to add a claim after the SOL has ran are not barred if…

A

the amendment relates back.

31
Q

When do amendments relate back?

A

Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading.

32
Q

Relation back means…

A

The amended pleading
is treated as though it was filed when the original was filed,
so it can avoid a statute of limitations problem.

33
Q

When will the amendment relate back if the plaintiff wants to change a defendant after the statute has run?

A

Terry Often Discounts Kim’s Marlboros

  • The amendment concerns the same conduct, transaction, or occurrence as the original;
  • The new defendant knew of this case within 90 days of filing;
  • She also knew or should have known that, but for a mistake, she would have been named originally.

This applies when P sued the wrong D first, but the right D knew about it.

34
Q

What are supplemental pleadings?

A

Pledings that set forth things that happened after the pleading
was filed.

35
Q

If something happens with the defendant after the complaint was filed that gives rise to another claim, what can the plaintiff do?

A

Plaintiff can move to file a supplemental complaint.

36
Q

Is there ever a right to file a supplemental pleading?

A

No, you must file a motion and whether it is granted is decided by the court.

37
Q

Rule 11 applies to….

A

all documents except discovery.

38
Q

When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry, that:

A
  • Not for improper purpose
  • Not frivolous, and
  • Contentions/denials have factual support (or are likely to)
39
Q

In addition, you make this certification every time you…

A

“present” a position to the court (e.g., when you later advocate a position taken in the document). It is a “continuing certification.”

40
Q

If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered?

A

The party, attorney, or firm responsible.

41
Q

General rule: a law firm (is/is not) jointly responsible with its attorney who violates Rule 11.

A

is.

42
Q

Before imposing a sanction, the court must…

A

give the alleged violator a chance to be heard.

43
Q

What is the purpose of Rule 11 sanctions?

A

To deter, not punish.

44
Q

Courts often impose these types of sanctions.

A

Non-monetary sanctions.

(e.g., require lawyer to attend professionalism classes)

45
Q

Monetary sanctions, if imposed, are often paid to…

A

the court, not to the other party.

46
Q

If the other party violates Rule 11, can you file a motion for sanctions immediately?

A

No.

“Safe Harbor” where:

  1. You serve the motion on other parties
  2. You give violating party 21 days to fix it and avoid sanctions
  3. If she does not do so, you can file the motion.
47
Q

Can the court raise Rule 11 problems sua sponte?

A

Yes, and there is no safe harbor.

  • Court issuues an “order to show cause” (“OSC”), ordering the violator to explain why sanctions should not be imposed.
  • The court must give party chance to be heard
48
Q

Federal Rule of Civil Procedure 12(f) allows the Court to…

A

“strike from a pleading an insufficient defense or a redundant, immaterial, impertinent or scandalous matter.”

e.g. strike an affirmative defense.

Federal Civil Procedure (19 decks)

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