Pleadings and Motions

Question 1

Time, how to compute and enlargement

Answer 1

How to compute a period of time is done as follows.
1. The day of the act is not included.
2. The last day of the period is included, unless it is a Saturday, Sunday, or other legal holiday, or other day on which the Prothonotary is closed.
3. When the prescribed period of time is less than 11 days, intermediate Saturdays, Sundays, or legal holidays are not included.
Enlargement of time works this way:
- The court, for cause shown, may, with or without motion or notice, enlarge the time if a request is made before the prescribed time expires.
- If the prescribed period of time has expired, the court may enlarge the time only upon motion where the failure to act was the result of excusable neglect.
Service by Mail: When service is by mail, the party receiving the notice by mail is provided 3 additional days to the prescribed period.

Question 2

Types of Pleadings (only ones allowed)

Answer 2

Complaint, Answer, Reply to Counterclaim, Answer to Crossclaim, Third-Party Complaint AND Third-Party Answer

Question 3

Notice Pleading

Answer 3

The complaint requires a short and plain statement of the claim showing that the person pleading is entitled to the relief sought.

Question 4

Complaint Requirements

Answer 4

Demand for judgment; notice pleading

Question 5

Answer Requirement

Answer 5

The party shall state in short and plain terminology the party’s defenses to each claim asserted and shall admit or deny each averment. The denial of the averment may be partial or full. The party responding to the averment may state that the party is without sufficient knowledge or information to form a belief as to the truth of the averment.
- Affirmative defenses must be set forth in the answer to the complaint. Affirmative defenses include: accord and satisfaction, arbitration and award, assumption of risk, comparative negligence, discharge and bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by a fellow servant, license, payment, release, res judicata, the Statute of Frauds, the statute of limitations, waiver, and any other affirmative matter that relieves the responding party from liability to the complaining party.
- Failure to Admit Is Sometimes an Admission: Where a party makes no denial or response where a responsive pleading is required, the averment not responded to is deemed to be admitted.
- Twenty Days to respond to the complaint

Question 6

Matters Required to be Denied by Affidavit

Answer 6

The following are admitted unless denied by affidavit:
o Existence of a partnership or corporation
o Signature on a document upon which the action is brought
o Agency of the operator of a motor vehicle
o An action on books and records where an affidavit of demand has been filed

Question 7

Motion to Dismiss

Answer 7

• A lack of subject matter jurisdiction
• Lack of personal jurisdiction
• Improper venue
• Insufficient process
• Insufficient service of process
• Failure to state a claim upon which relief can be granted
• Failure to join a party under Rule 19

Question 8

Waiver of Defenses

Answer 8

Certain defenses are waived if they are not claimed by the party in the party’s pre-answer motion or in the party’s answer or pleading. Those defenses that are waived are:
- Lack of personal jurisdiction
- Improper venue
- Insufficiency of process
- Insufficiency of service of process
SMJ IS NEVER WAIVED

Question 9

Compulsory Counterclaim

Answer 9

Any compulsory counterclaim must be asserted. A compulsory counterclaim is any claim that the pleading party has against any opposing party that arises out of the same incident or occurrence and that does not require the presence of third parties over whom the court does not have jurisdiction.

Question 10

Permissive Counterclaim

Answer 10

are claims against the opposing party that do not arise out of the same transaction or occurrence but that may be asserted in the action.

Question 11

Crossclaims

Answer 11

may also be filed in an action. A crossclaim is any claim against a co-party that arises from the same transaction or occurrence.

Question 12

Severance

Answer 12

The Court may order separate trials and judgments with regard to crossclaims and counterclaims.

Question 13

Indemnification and Contribution

Answer 13

At any time after service of the complaint, a defending party as a third-party plaintiff may cause a summons and complaint to issue on a person who is not a party to the action but who is or may be liable for all or a part of the plaintiff’s claim against the defendant. The third-party claim must be one for indemnification (for example, from a contractual obligation to indemnify the defendant) or for contribution (for example, contribution from a joint tortfeasor).

Question 14

Timing of Amended Pleading

Answer 14

A party may amend their pleadings once as a matter of right at any time before a responsive pleading is filed. If no responsive pleading is required to be filed, then an amendment may be made within 20 days of the service of the original pleading. After that period has lapsed, the amendment can be made only by leave of the court.

Question 15

Amendment to Conform to the Evidence

Answer 15

If evidence comes in at trial without objection, or with objection without a showing of prejudice, the court may permit an amendment of the pleadings to conform to the evidence.

Question 16

Relation Back

Answer 16

An amendment to a pleading “relates back” to the date of the original pleading when:
- The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original timely filed pleading OR
- The amendment changes the party or the name of the party against whom a claim is asserted if the transactional requirement is satisfied and, within 120 days from filing, the party to be brought in by amendment:
o (1) has received such notice of the action that the party will not be prejudiced in maintaining a defense on the merits; and
o (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Question 17

Pretrial Conferences

Answer 17

The court may direct the parties to appear before it for a conference to consider a variety of matters that mostly center around disposing of the case quickly, fairly, and in a cost effective manner

Initial Conference:
o Timing of discovery
o Court can mandate attendance
o After, court must issue
- Pretrial Conference:
o Prepare for trial
o Pretrial stipulation is sent before this meeting, witnesses, exhibits, jury instructions (in Superior)
- ADR under Rule 16 in Superior is mandatory ADR.
o Parties select course of action, if not, mediation is the default.
o Non-binding unless parties stipulate.

Question 18

ADR

Answer 18

The court may order alternative dispute resolution (“ADR”). Alternatively, the plaintiff may elect “mandatory non-binding arbitration” if the case is for monetary damages of less than $50,000 (and any non-monetary damages are nominal).

Question 19

Scheduling Order

Answer 19

The court will enter a scheduling order that limits the time to join parties, amend pleadings, file motions, complete discovery, and engage in ADR, the format of which will be agreed upon by the parties.

Question 20

Compulsory ADR

Answer 20

• Arbitration is a process by which a neutral arbitrator hears both sides of the case and renders a fair decision based on the facts and the law. If agreed, it can be binding.
• Mediation is a process by which a mediator facilitates the parties in reaching a mutually acceptable resolution of a controversy.
• Neutral case assessment is a process by which an experienced neutral assessor gives a non-binding, reasoned oral or written evaluation of a controversy, on its merits, to the parties. The neutral assessor may use mediation and/or arbitration techniques to aid the parties in reaching a settlement.
• ADR practitioner includes the arbitrator, mediator, neutral case assessor or any other practitioner engaged by the parties to facilitate ADR.

Question 21

Amending Pleading

Answer 21

amendment of right may be done one time before the defendant answers.
- D can amend answer one time, within 20 days of when original answer was filed.
- After this time, must get leave of court if there is no prejudice to the other side.
o High bar, preference is to have claims adjudicated on their merits