Pleadings

Question 1

Rules

Answer 1

8, 9, 11, 12, 15

Question 2

Twiqbal established

Answer 2

1. Court ignores conclusions of law and focuses only on alleged facts
2. Facts must support plausible claim, not just a possible claim.
3. To determine plausibility, the judge uses their own experience and common sense.

Question 3

Rule 11

Procedurally

Answer 3

• Certification effective every time a position is advocated from the document.
• Sanctions for violation of rule are discretionary. We want to deter not punish.
• motion for sanction cannot be filed right away, must draft, serve on other party, give them 21 days to fix problem. If fixed - no sanctions (safe harbor)

Question 4

Rule 11

Generally

Answer 4

• Made to avoid frivolous or baseless documents in litigation.
• applies to all documents except discovery
• requires attorney to sign all documents which certifies everything in 11b

Question 5

Rule 8A finds the complaint must have 3 things

Answer 5

1. Statement of SMJ
2. Short and plain statement of claim
3. Demand for relief (damages/injunctions)

Question 6

9B/9G

Answer 6

Heightened pleading requirements - must be stated in particular detail if alleging

1. fraud
2. mistake
3. special damages

Question 7

Rules for Defendant’s Response

Answer 7

8b (the answer- answers are pleadingss); FRCP 12(motions - request for court order)

Question 8

Defendant’s response timing

Answer 8

Defendant must respond no later than 21 days after service of process
BUT - if D waived service of process under 4d, she has 60 days from date P mailed waiver.

Question 9

12e

Answer 9

motion for more definitive statement (complaint unintelligible)

Question 10

12f

Answer 10

motion to strike - can be brought by any party to strike allegations from pleadings

Question 11

12b

Answer 11

gives 7 defenses that can be the basis of a MTD or can be plugged into answer as affirmative defenses:

1. SMJ
2. PJ
3. Improper venue
4. improper process (problem w summons or complaint)
5. improper service of process (documents fine, not served properly)
6. failure to state a claim
7. failure to join indispensable party

Question 12

Rules that must be in first rule 12 response or they will be waived

Answer 12

2. PJ
3. Improper venue
4. improper process (problem w summons or complaint)
5. improper service of process (documents fine, not served properly)

Question 13

Defenses that can be asserted at any time

Answer 13

6. failure to state a claim

7. failure to join indispensable party

Question 14

Defense that can never be waived

Answer 14

SMJ

Question 15

8b

Answer 15

Defendant’s answer -
can either admit or deny, but failure to deny constitutes an admission on any allegation except damages.
- defendant can also assert 8b5 stating there is a lack of sufficient info to admit or deny

Question 16

8c1

Answer 16

affirmative defenses, which inject new facts:
statutes of limitations/frauds etc. (see rule)
*these must be asserted in answer or they are waived

Question 17

Amended Pleadings

Answer 17

Rule 15 - approach in 3 steps:

1. Does 15a apply?
2. Whether 15b applies in terms of variance
3. 15c - relate back

Question 18

Does 15A apply?

Answer 18

a. amending as a matter of course can only happen once!
b. P has right to amend within 21 days after D served first rule 12 response
b. Def has right to amend within 21 days of serving answer

a2 - if opposing party doesn’t consent to amending, court can amend when justice so requires. (liberal standard)
- if time as run out, ask courts permission (leave to amend)

Question 19

Does 15b apply? Variance

Answer 19

1. Evidence at trial does not match what was pleaded
2. other party either will or will not object to variance, if they do not object the evidence comes in and we act as if it was pleaded
3. if they do object evidence is inadmissible
4. allows for party seeking to admit evidence to amend

Question 20

15c - relate back

Answer 20

1. amending to add a claim or change a defendant
2. allowed if the amendment would relate back - if we get relation back we treat amendment as though it was filed when original case was filed
3. this rule only works if you sued the wrong defendant first but the right defendant knew about it (15(C)(1)(c))

Question 21

Supplemental Pleadings

Answer 21

15D
if you want to add something after case was filed
-there is never a right to file one, must ask court permission

Question 22

Cases for Pleadings

Answer 22

1. Conley v. Gibson
2. Twombly
3. Iqbal
4. Erickson
5. Leatherman

Question 23

Conley

Answer 23

• Broad low standard of complaint
• Short plain statement “bare bones complaint”
• purpose is to give defendant notice

Question 24

Twombly

Answer 24

• finds Conley is not a high enough bar, it will allow anyone to claim something very vague and get into court.
• facts must be plausible
• Plausibility: must be likely facts DID happen not they COULD happen; must be plausible enough to survive MTD and get to trial; facts cannot be speculative or conclusory

Question 25

Erickson

Answer 25

Court decision says plausibility standard only applies to antitrust cases

Question 26

Iqbal

Answer 26

Reverses Erickson finding that plausibility standards apply to all federal cases (w rule 9 exceptions). Created 2 prong test for courts to use when deciding if plausibility exists:

1. court identifies allegations that are not entitled to assumption of truth (separating conclusory statements from actual alleged facts) & ignore conclusory statements
2. Once has alleged facts, court will evaluate factual assertions that addresses plausibility and suggest entitlement relief (while including judicial experience and common sense)
   - look to see if relief can be granted in light of judicial exp and common sense.