Pleadings/Amendments

Question 1

Complaints: Motion to dismiss Rule 12(b)(6): Failure to state a claim on which the law provides relief

Answer 1

• 21 days from service of complaint
• What information must be contained in the complaint to satisfy the rule?
• Does it satisfy 8a or 9b

Question 2

Complaints: Motion attacking complaint for being insufficient for vagueness

Answer 2

• 21 days from service of complaint
• Simply asks for amendment for more detail

Question 3

Complaints: Rule 8a: Three short and plain statements

Answer 3

1. The grounds upon which the jurisdiction of the court depends
2. A short and plain statement of a claim showing the pleader is entitled to relief
3. The prayer for relief

Question 4

Complaints: Rule 9b: Particularity/Fraud

Answer 4

If fraud is alleged, the complaint must contain more than a short and plain statement. It must be stated with particularity.

Question 5

Twombly/Iqbal

Answer 5

1. After eliminating all conclusory statements, do the facts allege a claim which is plausible?
2. What does plausibility means? Common sense and experience of judge. Also, a complaint that alleges that a defendant engaged in irrational economic behavior must have more than circumstantial evidence in its allegations. Instead, such a claim must have direct evidence.

Question 6

Pleadings: Irrational Economic Behavior Defined

Answer 6

Under Twiqbal: Courts of law should presume that companies are acting rationally when there is a rational basis for their actions when evaluating whether a complaint alleges conduct that is implausible or not, especially when there is a lack of direct evidence and an allegation is merely based upon circumstantial evidence.

Question 7

Pleadings: Twiqbal Direct vs. Circumstantial Evidence

Answer 7

Direct evidence: Evidence from which there is only one reasonable inference.

Circumstantial evidence: Evidence from which there are at least two reasonable inferences.

Question 8

Responses: 2 Surgical Motions (1 of 2) Rule 12(e) Motion for a more definite statement

Answer 8

• 21 days from service
• The complaint is so vague and ambiguous that defendant cannot answer
• Not a dismissal, just an order to amend

Question 9

Responses: 2 Surgical Motions (2 of 2) Motion to strike

Answer 9

• 21 days from complaint
• Argues part of complaint should be stricken from the complain either because it is redundant, immaterial, or scandalous.
• Requires PLNTF to amend and file anew, Judge may strike without a motion on their own discretion
• Can go both ways

Question 10

Responses: Rule 12(b)(6)

Answer 10

Motion to dismiss for failure to state a claim.

Question 11

Responses: Rule 19(a-c)

Answer 11

Motion to dismiss for failure to join an indispensable party

Question 12

Answers: Rule 8(b): 3 ways to answer allegations.

Answer 12

• 21 days from service

Defendants must fairly and precisely meet each and every allegation in the complaint.
1. Admit those allegations that are true,
2. deny those that are not true, or
3. say there is insufficient information from which to admit or deny the allegation.

If the Defendant has an affirmative defense, it must be included in the answer or it is waived.

Question 13

Amendments: Timeframe

Answer 13

1. 21 days for free shot to amend pleading
2. After 21 days, you must get permission for the pleading, either through consent from the adversary or permission from the court.

Question 14

Amendments: Motion for Leave to Amend; when should it be granted or denied?

Answer 14

The court must grant freely to do justice, unless the party opposing the amendment can establish Undue Prejudice against them.

Undue Prejudice: Is it too late before trial for D to respond, is there time for Discovery, are there Experts involved? Don’t want to upset the MERITS of litigation.

Amendment must have merit, unless it comes so late it disrupts other merits.

Question 15

Amendments: Timeframe

Answer 15

1. 21 days for free shot to amend pleading
2. After 21 days, you must get permission for the pleading, either through consent from the adversary or permission from the court.
   Amendments: Motion for Leave to Amend; when should it be granted or denied?
   The court must grant freely to do justice, unless the party opposing the amendment can establish Undue Prejudice against them.

Undue Prejudice: Is it too late before trial for D to respond, is there time for Discovery, are there Experts involved? Don’t want to upset the MERITS of litigation.

Amendment must have merit, unless it comes so late it disrupts other merits.
Amendments: Amending a pleading during or after trial
Amendment will be granted freely to do justice (unless the party opposing the amendment can establish undue prejudice)

Generally easier to establish UP before trial. Courts will often grant a continuance so that adversary may respond rather than deny amendment.

If opposing party responds to evidence relating to new claim, but not the claim itself, it impliedly consents to it being added by its inaction.

Question 16

Amendments: Relation Back Sameness

Answer 16

If the new amendment relates to the same occurrence that the original complaint does it relates back for the Statute of Limitation

Question 17

Amendments: Relation Back; New Party: 2 Steps.

Answer 17

A New Party can relate back if two things are true.
1. Sameness, same occurrence or transaction as the earlier complaint
2. Knowledge: Must show that the new party had knowledge that but-for a mistake in name it would have been named in the original complaint, within 90 days of the filing of the earlier timely filed complaint. (Corp. vs. Inc.)

• So not really brand new parties, just misnamed parties. Rightly served party with the wrong name on the complaint. 90 day period is the same as the service period. Corporation knew of the mistake.

(not on exam, state law relation back works in fed court)