Pleadings Flashcards
How do you count time when a pleading or any other thing is due?
The day of the event that triggers the time period is excluded and the last day of the time period is included, unless it ends on a weekend or holiday (then it is the next workday)
- if service is made by mail or leaving paper with clerk, three days are added to time period
Pleadings:
Requirements for Complaint
1) Statement of grounds for SMJ
2) Short and plain statement of the claim showing P entitled to relief
3) Demand for relief sought
Pleadings:
Statement of the Claim
Twiqbal: Must plead facts supporting a plausible claim, not just possible
- For fraud, mistake, and special damages, must plead matters with particularity or specificity.
Pleadings:
Time for Response to Complaint
Within 21 days from service of process OR 60 days from when you mailed waiver.
- if pre-answer motion is made and court does not fix another time, response must be served within 14 days after the court’s denial or postponement of the motion
Pleadings: Rule 12(b) Defenses
Motions to dismiss:
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper venue
(4) Improper process
(5) Improper service of process
(6) Failure to state a claim
(7) Failure to join indispensable party
2,3,4,5 are waivable — must assert in first Rule 12 response (motion or answer) or else they are waived. 6 and 7 can be raised at any time prior to or at trial. 1 can be raised at any time, even on appeal.
Pleadings:
Answer
(1) Respond to allegations of complaint: (a) admit, (b) deny, (c) lack sufficient info to admit/deny—but you have a duty to investigate things in your control.
Note: failure to deny = admission (except as to damages)
(2) Raise affirmative defenses
Pleadings: Counterclaim
- Claim asserted against an opposing party—i.e., someone who has already asserted a claim against you.
- Counterclaim must go in your answer
- Must have SMJ (either independent basis or supplemental jx)
Pleadings:
Compulsory Counterclaim
Counterclaim that arises from the same T/O as P’s claim.
You must file this in the pending case or the claim is waived. (this is the only compulsory claim in CivPro)
Pleadings: Permissive Counterclaim
any other claim that D has against P may be filed, but it must have its own basis for SMJ
Pleadings: Motion for More Definite Statement and Motion to Strike
Motion for More Definite Statement: ask for a more definite statement of the claim before responding.
Motion to Strike: ask to strike insufficient defense or redundant or immaterial matter
What is the effect of a failure to answer a pleading in time?
default: notation in the case file that no answer was filed within the time permitted by rules, which can be set aside by court
Clerk must send all parties notice of the default
default judgment: judgment entered against D because he did not oppose the case. (* if D has appeared at least once and then default judgment is entered, he is entitled to at least 7 days notice of hearing on application for default judgment)
Once a default judgment has been entered, can D contest liability?
No, but he can appear at hearing for damages and contest the amount of damages.
Can a party plead inconsistent or alternative claims or defenses?
Yes, consistency does not matter.
Pleadings:
Crossclaim
Claim against a co-party—it must arise from the same T/O as the underlying action.
Note, because they must arise from same T/O, they always meet test for supplemental jx
Amended Pleadings:
Four fact patterns
(1) Right to amend as a matter of course
(2) Seek leave to amend
(3) Variance
(4) Amendment after SOL runs (Relation Back).
Amended Pleadings:
Right to Amend
P can amend once within 21 days of D’s first Rule 12 response.
D can amend once within 21 days of answer
Amended Pleadings:
Leave to Amend
If no right to amend, can seek leave of court to amend. Leave will be granted if justice so requires—normally granted unless it’s for delay or there’s prejudice or futility.
Amended Pleadings:
Variance
Where evidence at trial does not match what was pleaded, P can amend complaint to conform to the evidence.
Amended Pleadings:
Relation Back
(1) An amendment that adds a claim after the SOL runs will relate back if it concerns the same conduct, transaction or occurrence as the original pleading.
(2) An amendment to change the D after SOL run will relate back only if P sued the wrong D first and the right D knew about it:
(a) must concern the same conduct, T/O as original claim;
(b) New party knew of case within 90 days of filing; and
(c) New party knew that but-for a mistake, she would have been named originally.
Supplemental Pleading
Pleadings that set forth things that happened after the pleading was filed.
Always discretionary as to whether the court will allow them
Rule 11
Any time you sign a document or present a position to the court, you certify that to the best of your knowledge/belief, after reasonable inquiry that submission:
(1) Is not for an improper purpose;
(2) The legal contentions are warranted by law; and
(3) The factual contentions/denials have evidentiary support
Rule 11 Violations
Sanctions can be imposed for violations of Rule 11 against
(1) the party
(2) the attorney
(3) the firm
Purpose = deterrence, not punishment
Moving party must serve motion on party to allow chance to fix problem (21-day safe harbor). Sanctions can also be imposed sua sponte. Need hearing before sanctions.
