Pleadings and Motions Flashcards
Pleadings - Concept
Formal document where party to legal proceeding sets forth or responds to allegation, claims, denials, defenses
Pleadings - Submission - Day deadlines - gral Rules
- Period begins day after order and includes weekends and holidays
- Submission electronically allowed - Submission until midnight of last day
- Extension is possible if required before expiration
Pleadings - Submission - Day deadlines - Permitted extension post expiration when (3):
Motion is submitted showing excusable neglect (Not party’s own carelessness, inattention, or willful disregard):
1) Bc of unexpected /unavoidable hindrance/accident
2) Bc of reliance on the care and vigilance of the party’s counsel
3) on a promise made by the adverse party
Pleadings - Submission - Day deadlines - Prohibited extension cases (3)
1) JMOL (before submitted to jury or 28 days post entry judgment)
2) Motion for new trial (28 days post entry judgment)
3) Motion for relief from judgment (reasonable time or 1 year)
Pleadings - Complaint - gral
- FR 3: civil action will commence with its filling
- Must be filled in court + signed by attorney
- P’s burden to obtain summons
Pleadings - Complaint - Gral Content Rules
- Has to give enough notice to D of all material elements of each claim + facts/legal basis
- If corporate P, it must disclose all its related entities
- Any undisclosed claim can not be asserted at trial
- These rules apply even for “notice pleading”
Pleadings - Complaint -“Notice Pleading”
- Liberal application of FR 8 - Just general plausible allegation
- Gral dx’s OK : i.e. pain and suffering
- Court usually allows leave to amend when required by justice
- Doesnt apply to special pleading matters
Pleadings - Complaint - Content - JARR
1) Jdx: Pjdx and SMJ
2) Allegation of facts: that generate plausibility of claim
3) Right to relief - legal theory - basis of claim + specific statute referred to.
4) Relief (remedy) request: specific
Pleadings - Complaint - Joinder of claims - gral
- When P has mx claims/theories in a single complaint
- Even when arising from different transactions of events
- Court can separate bc of convenience, judicial economy or to avoid prejudice
Pleadings - Complaint - Single Complaint Rule
When claim arises from single transaction or event
- No “spiting claims” possible
Pleadings - Complaint - Single Complaint Rule - Effect of “claim splitting”
- Preclusion affects second claim in relation to judgment of second claim
Pleadings - Pre Answer Motions to dismiss - Gral
- FR 12 - No need for “special appearance” by D
- Any deficiency of the complaint is not waived by presenting this motion
- If presented D must allege all possible defenses under FR12 once - if not they are barred for later motions
- Court can recharacterize wrongly labeled motion to make it propert
Pleadings - Pre Answer Motions to dismiss - (5)
1) Lack of jdx
2) Insufficient Service
3) Failure to join a party
4) Improper venue
5) Failure to state claim upon which relief can be granted (12b6)
Pleadings - Answer - Concept
D’s first pleading that addresses the merits of the case setting forth defenses and counterclaims
Pleadings - Answer - Timing
- Gral Rule: 21 days from service /60 days if outside of the US
- When waiver of service: 60/90 days
Pleadings - Answer - Content (3)
1) Gral denials of allegations - enough if no further actual knowledge about claim
2) Affirmative defenses - expressly and specifically pleased
3) Counterclaims
Pleadings - Post Answer (or with) Motions to dismiss - (2)
1) Summary judgment motion (requires affidavit of support)
2) Judgment on the pleadings (12c)
Pleadings - Special Matters Pleading - Gral
- Pleaded with particularity (ojo in relation to notice pleading)
- Must include detail on relevant facts, time/place and condition precedent, and foreign laws
- Special dx specified (i.e. medical expenses, lost profits)
- Also details on affirmative defenses (assumption of risk, contributory N, comparative fault, fraud, SOL)
Pleadings - Special Matters Pleadings (4) FMBD
1) Fraud
2) Mistake
3) Breach of trust
4) Denial of contract capacicty
Pleadings - Formal and substantial requirements - FRCP 11
- Signature by attorney on record
- Not frivolous - r_easonably grounded_ in fact and warranted by law/Good Faith.
- If to extend or modify law it must have enough arguments
Pleadings - FRCP 11 Sanctions for frivolous pleading
- Attorney/law firm sanctioned
- When fails to make reasonably inquiry of facts or legal merits
Pleadings - Challenge to pleadings - Gral
- gral rule: By Rule 12 motions to dismiss, but also possible w/answer
- most of them dont address facts, BUT rather whether law allows the specific claim or defenses
Pleadings - Challenge to pleadings - Rule 12 motions to dismiss (8)
1- Lack of PJDX or SMJ (12b)
2- Improper venue (12b)
3- Insufficient process (12b)
4- Insufficient service of process (12b)
5- Failure to to state claim (12b6)
6- failure to join parties (12b)
7- Judgment on pleadings (12c)
8- Motion to strike - invalid defenses OR redundant/impertinent/scandalous matters (12f)
Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Gral
- Is used as quick/easy way for D to avoid claim when is CLEAR will never prevails
- -i.e. SOL, claims not recognized under substantial law of the jdx
- Claim being too vague is grounds
Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Standard applied by court when deciding
Strict scrutiny
- rarely granted
- avoid risk of denying P’s day in court
Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Rule regarding factual allegations
- Factual allegations in claim are deemed truth
- BUT P must prove claim is factually possible
Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Rules for ammendment
Allowed by court in lieu of dismissal
- usually when P might be able to include a new or additional cause of action
Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Conversion to motion for summary judgment
- When parties introduce matters outside of pleadings in motion (all docs considered in motion wont trigger conversion)
- Court can allow conversion to consider this extrinsic E, to allow discovery
- When docs are referred to but not attached to pleading, court will consider them only if they are integral to the case to maintain motion 12b6 as such
Pleadings - Challenge to pleadings - Rule 12 - Motion for judgment on the pleadings (12c)
- Under similar standard of scrutiny as 12b6
- By P in response to D’s answer, after closing of pleadings (different from 12b6 in that is not by D in response to P initial complaint)
Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Gral
- Some defenses ( as motions) must be raised timely and consolidated - IF NOT deemed waived - in order to promote judicial economy
Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules - Waived if not timely presented in D’s answer (4)
1) Lack of PJDX
2) Insufficient Services
3) Lack of MC
4) Improper Venue
Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules for Lack of SMJ motion
Can be presented at any time - even post judgment -no consolidation or waiver possible
Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules for Lack of PJDX and Improver Venue
- If challenge by pre-answer motion or in motion: need for consolidation along all other defenses
- if not presented then deemed as waiver
- When in answer: P is entitled to wait and file motion for improper venue later, having more time to investigate and draft motion
Pleadings - Counterclaims - gral
- Claim by a D opposing the claim of the P and seeking some relief from the P for the D. (Cause of action D vs P)
- 2 types: compulsory and permissive
- P claim tolls SOL on any D’s claim (avoid for P to wait until last minute to prejudice D)
Pleadings - Compulsory Counterclaims
- When claim arise from same transaction/occurrence as P’s claim
Pleadings - Permissive Counterclaims
- When claim arises from different set of facts
Pleadings - Crossclaims
- By D vs other potential co-D
- Arises from same transaction/occurrence as P’s original claim
- Always permissive - never compulsory
Amended Pleadings - Allowed Types (2)
1) As a matter of right
2) By leave of court OR written consent of the other party
Amended Pleadings - As a matter of right - Timing (2)
- Once before responsive pleading is served - answer (not pre answer motion) OR
- Within 21 after service if no responsive pleading is permitted OR not yet on trial calendar
Amended Pleadings - By leave of court/written consent of party - BUUF conditions for not-admitance
1) Bad Faith
2) Undue delay
3) Unfair prejudice
4) Futility
+ Court attitude towards amendment: Better chances adding defenses/claims (causes of action) than adding parties
Amended Pleadings - By leave of court/written consent of party - Special rule for Rule 12b6- Motion to dismiss for failure to state a claim
Court can allow P to amend in lieu of dismissal WHEN is possible for P to include new or additional cause of action
Amended Pleadings - “Relate back” - Gral
- For purposes of SOL amended pleading is treated as it occurred at time of original pleading filing
- Specific treatment if new claim/defense or new party
- If new party added it can potentially alter diversity for federal SMJ
Amended Pleadings - “Relate back” - When new claim/defense
Relates back if it new claim/defense arises from similar transaction/occurrence
- even if reason for amendment is excusable neglect or as conscious trial strategy
Amended Pleadings - “Relate back” - When new party (3 conditions)
1) New party arises from similar facts as original pleading
2) Added Party receives due notice
3) Not unfair - that new party knew or had known of possible action vs them if not for mistaken identity
Amended Pleadings - “Relate back” - When new party - Prohibition
When amendment is because of inexcusable neglect or trial strategy
Appearance and Default - Gral
- If D doesn’t answer within set period (21-60 - 60/90) + P entitled to default judgment
- No notice required for D, UNLESS D has appeared in court, then 7 days at least prior to audience, time in which D can prevent by filing and serving answer to motion
Appearance and Default - D “Appearance” when (3)
1) Filing answer
2) Filing/serving notice of appearance
3) Involved in informal negotiations when aware of claim and w/intention to defend himself.
Appearance and Default - Default Judgment Effects
- D is deemed to have admitted truth of P’s claims by not contesting them
- NO BURDEN OF PROOF for P
- Prevents default party from presenting defenses and/or compulsory counterclaims
- Generates Preclusion if court had jdx and D received notice and had opp to appeal.
Appearance and Default - Default Judgment - Amount Determination
- If unliquidated, court might require hearings or other proceeding to establish - Rarely more than requested
Appearance and Default - Default Judgment - Prohibitions vs (3) MIM
1) Minors
2) Incompetents
3) Member of military
Default Judgment - Motion to vacate - gral
- aka “motion for relief from judgment”, “motion to vacate judgment”.
- As challenge of default judgment for “good cause” or “just cause”
- After default judgment is entered by court
Default Judgment - Motion to vacate - Causes (2)
1) For lack of PJDX
2) Other - based on D’s “admission of error” (i.e. lose summons, fail to retain counsel, etc) - “JUST cause”
Default Judgment - Motion to vacate - For lack of PJDX
- Filed within reasonable time from entered default judgment
- No need to defend on merits of cause -i.e. P used substitute service w/o using due diligence to locate D
Default Judgment - Motion to vacate - For Other reasons (non jdx) - Court considerations (4)
1) Meritorious defense: has D plausible defense on the merits?
2) Reason for D’s non-appearance: i.e. misunderstand/miscommunication w/clients, attorney ,etc
3) D’s diligence on vacating default judgment
4) Effect upon P - prejudice by vacating -i.e. so much time passed crucial E no longer available
Pleadings - Submissions - Extension
Possible only when requested before original period expires
Pleadings - Complaint - Gral Content Rules - Consequence of not including claim
Can not be asserted in trial
Pleadings - Complaint - Counterclaim - SOL rules
P claim tolls SOL on any D’s claim (avoid for P to wait until last minute to prejudice D)
Default Judgement - Burden of proof for P
NONE - failure to answer by D is deemed as admission to the truth of P’s claims
Default Judgment - Default
- Entered by county clerk - Can be set aside by “good cause”
