Pleadings and Motions Flashcards
What must be included in a complaint?
(1) short and plain statement of the grounds for jurisdiction;
(2) short and plain statement of the ultimate facts showing that the plaintiff is entitled to relief; and
(3) demand for judgment and relief
What are the special pleading exceptions to the short and plain statement rule?
When you are pleading:
(1) incapacity: must be alleged using particulars that are within the pleader’s knowledge;
(2) fraud or mistake: must be pled specifically (use as much facts as you can);
(3) conditions precedent: may be alleged generally, but denying that a condition precent occurred must be pled specifically
(4) special damages: must be specifically stated, but dollar amounts aren’t required;
(5) supporting documents: if the claim is based on a contract/bond/note, the document must be attached
When do you assert affirmative defenses?
In the answer or reply
What defenses can be brought at any time in the initial action?
(1) failure to state a cause of action;
(2) failure to join an indispensable party; and
(3) objection of failure to state a legal defense
What is a compulsory counterclaim?
Counterclaim by D against P that arises out of the same transaction or occurrence as the P’s claim - use them or lose them!
What is a permissive counterclaim?
Doesn’t arise out of the same transaction or occurrence as the P’s claim
What are the requirements for a cross-claim?
Must:
(1) arise out of the same transaction or occurrence as the original claim or a counterclaim; or
(2) relate to any property that is the subject of the original claim
Are cross-claims permissive or discretionary?
Permissive
What is a reply?
Required only if the answer contains an affirmative defense that the opposing party seeks to avoid
When must a reply be filed (time)?
Within 20 days after service of the answer
What is the standard of review for a M2D?
M2D must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief
For a M2D based on failure to state a cause of action, how does the court construe the complaint?
In a light most favorable to the plaintiff
When a M2D is filed, what happens to the time period to file an answer?
The M2D suspends the time to file an answer until the M2D is resolved
What is a motion for judgment on the pleadings?
Analogous to a M2D, but made after the pleadings and all motions on the pleadings have closed. Claims that based solely on the pleadings, the party is entitled to judgment as a matter of law
What is a motion for a more definite statement?
If the pleading is so vague or ambiguous that the party can’t reasonably respond
What is a motion to strike?
A party can strike any redundant, immaterial, scandalous, or impertinent material. Doesn’t toll the time to answer.
When can a verified motion to strike a sham pleading be made?
Any time before the cause is set for trial
What are the three ways a non-party can be brought into an action?
(1) third party complaint (aka impleader)
(2) intervention
(3) interpleader
What is a third party complaint (impleader)?
Current D sues a new party. The cause of action must be for indemnity, contribution, or subrogation
In an impleader, what are the rights of the third party?
(1) can assert any defenses it has against the D
(2) both the original plaintiff and the third party D may file claims against each other
(3) the third-party D may assert defenses against the original plaintiff and gets the benefit of any defenses the original D could have claimed, even if they didn’t
What is an intervention?
Where a non-party enters the lawsuit on its own initiative because they will gain or lose by the effect of the judgment
What is the status of an intervenor?
Has the status of a party, but is subordinate to the main action. IOW, can’t re-argue things.
What is an interpleader?
Where you are a stakeholder and multiple parties have claims against you. The people who have the claims against you can all be joined as defendants so the stakeholder isn’t exposed to multiple liability.
What is the order or interpleader?
Requires the stakeholder to deposit funds or property into the court, be dismissed as a party, and be awarded reasonable attorneys fees and costs
In FL, how must pleadings be served?
By email!!
No service needs to be made on parties against whom a default judgment is entered except for 3 specific pleadings:
(1) action for final hearing
(2) copy of the final judgment
(3) amended complaint
