Pleadings and Motions

Question 1

What FRCP deals with the complaint?

Answer 1

FRCP 8(a)

Question 2

What 3 things must a complaint contain?

Answer 2

FRCP 8(a)

(1) A short and plain statement of SMJ
(2) A short and plain statement of the claim
(3) A demand for the relief sought

Question 3

What FRCP governs the form of pleadings?

Answer 3

FRCP 10

Question 4

Is rule 8 a strict standard? (Dioguardi; Conley)

Answer 4

No, courts have a pretty liberal view of FRCP 8

Question 5

What does the holding from Dioguardi tell us?

Answer 5

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the π can prove no facts in support of his claim that would entitle him to relief

Question 6

Twombly

Answer 6

A complaint must allege sufficient facts that, if accepted as true, would state a claim of relief that is plausible on its face in order to defeat a motion to dismiss for failure to state a claim

Question 7

Iqbal

Answer 7

The plausibility standard from Rule 8(a)(2) no longer applies just to anti-trust cases, now applies to all cases

Conclusory factual allegations have no place on the complaint

Question 8

Swanson

Answer 8

Changes the plausibility standard from whether a set of facts are probable, to whether a set of facts are possible.

Question 9

What responsibilities are placed on lawyers under Rule 11(a)? (3)

Answer 9

(1) Attorneys must sign and include contact info
(2) Pro se litigants must sign their own
(3) If no signed, pleadings will be stricken unless omission is promptly corrected

Disclaimer: FRCP 11 only applies to written pleadings, motions, or other papers submitted by lawyers (not litigation or discovery conduct)

Question 10

FRCP 11(b)

Certification requires attorneys sign documents to certify they made a reasonable inquiry that: (4)

Answer 10

(1) Document is not for an improper use
(2) Your legal contentions are warranted
(3) Factual contentions have, or will likely have, evidentiary support
(4) Denials of factual contentions have, or will likely have, evidentiary support

Question 11

What does a court look for to determine a non-frivolous legal argument under FRCP 11(b)(2)? (2)

Answer 11

(1) Has a party researched the issues and found support for its theories (including minority views, law review articles, or thru consultation with other attorneys)
(2) When legal arguments are identified as seeking an extension, modification, or reversal of existing law, should be viewed with greater tolerance

Question 12

Who can be sanctioned pursuant to FRCP 11(c)?

Answer 12

Who can be sanctioned:

1) Individual attorneys
(2) Law firms
(3) Parties (only for factual contentions

Question 13

Who can seek sanctions pursuant to Rule 11(c)?

Answer 13

Who can seek sanctions:

(1) Party via motion 
FRCP 11(c)(2)

(2) Court on its own initiative, with order to show cause 
FRCP 11(c)(3)

Question 14

Procedures for Rule 11(c) motions? (4)

Answer 14

(1) Motion made separately from any other motion
(2) Describe specific conduct that violated FRCP 11(b)
(3) Party must be served pursuant to FRCP 5

(4) Safe Harbor Provision: person being served given 21 days to correct motion after being served 
FRCP 11(c)(2)

Question 15

What types of sanctions can be made under FRCP 11(c)? (4)

Answer 15

(1) Monetary sanctions paid to the court
(2) Order reasonable expenses (including attorney fees) paid to movant
(3) Non-monetary directives
(4) Must be limited to what suffices to deter repetition of conduct

Question 16

Under what situations are pleading standards heightened?

Answer 16

FRCP 9(b) & (g):

(1) If fraud, mistake, or special damages
(2) Must be stated with particular detail

Question 17

Voluntary Dismissal Rule

FRCP 41(a)(1)(A)(i)

Answer 17

πs can voluntarily dismiss at any time before the defendant answers or at any time that all parties agree – usually when they settle

Will be without prejudice unless ∆s are not agreeing to dismiss without prejudice

Question 18

Involuntary Dismissal Rule

FRCP 41(b)

Answer 18

If π fails to prosecute or comply with pleading rules or a court order, a ∆ may move to dismiss the action or any claim against it

Most likely will be an adjudication on the merits (Dismissed with prejudice)

Question 19

How can a ∆ respond when sued? (2)

Answer 19

(1) Answer

(2) Motion

Question 20

How long does a ∆ have to respond when they are sued?

Answer 20

Within 21 days of service of process (exclude date of service)

If they waive service under 4(d), they have 60 days

Question 21

Is a motion under FRCP 12 a pleading?

Answer 21

NO

It is a request for a court order

Question 22

If a π files a FRCP 12 motion, how does a ∆ have to serve an Answer? (Denied and Grants)

Answer 22

If motion denied, responsive pleading must be served within 14 days

If 12(e) motion for more definite statement granted, responsive pleading must be served within 14 days

Question 23

How many defenses may be asserted in a 12(b) motion to dismiss?

Answer 23

7 May be asserted in motion to dismiss or answer

(1) Lack of SMJ
(2) Lack of PJ
(3) Improper Venue
(4) Insufficient Process
(5) Insufficient Service of Process
(6) Failure to State a Claim
(7) Failure to join a party under Rule 12

Question 24

What defenses must be raised in your first 12(b) response? What happens if they are not raised in the first response?

Answer 24

(1) Lack of PJ
(2) Improper Venue
(3) Insufficient Process
(4) Insufficient Service of Process

Failure to raise in first response constitutes a waiver

Question 25

When can a 12(b) motion for Lack of SMJ be brought?

Answer 25

At any time, can never be waived

Question 26

When can a 12(b) motion for Failure to State a Claim or Failure to join a party be brought?

Answer 26

Can be raised for the first time at any point during the trial.

Only can’t be brought on appeal

Question 27

When can a motion for Judgment on the Pleadings be brought?
FRCP 12(c)

Answer 27

(1) After an answer has been filed and at time throughout trial
(2) Used when facts are not disputed, but claim is legally sufficient
(3) If matters outside the pleadings are submitted in support, it will be treated as a motion for SJ
(4) Can be filed by ∆ or π (in response to claims made in the Answer)

Question 28

What can a ∆ do if the complaint is vague or ambiguous such that a ∆ can’t reasonably prepare a response?

Answer 28

File a 12(e) motion for a More Definite Statement

• Should be made before filing an answer and should point out the defects and details desired

Question 29

What is a Rule 12(f) motion?

Answer 29

Motion to Strike

Court may, on its own or by motion from a party before responding, strike from a pleading:

(1) an insufficient defense (fails under substantive law) OR
(2) Any redundant, immaterial, impertinent, or scandalous matter

Question 30

How long does a ∆ have to answer a complaint after their motion is denied?

Answer 30

14 days

Question 31

What can a ∆ do in their answer?

FRCP 8

Answer 31

Either admit, deny, or say you lack info to admit or deny any allegations in the complaint
FRCP 8(c)

Question 32

What happens if a ∆ fails to deny a claim?

Answer 32

Failure to deny constitutes an admission of any claim except damages

Question 33

When must an affirmative defense be pleaded?

Answer 33

In ∆’s answer, otherwise it is waived

Question 34

When can a party amend before trial? How many times can they amend? 
FRCP 15(a)

Answer 34

π has a right to amend once, within 21 days after ∆ serves first Rule 12 response

∆ has a right to amend once, within 21 days after serving an answer

If 21 days has passed, you can ask court for permission to leave to amend – courts will usually allow unless you have waited too long or it will prejudice someone

Question 35

What are the rules for amendments during or after trial?
FRCP 15(b)

Answer 35

Rule 15(b) – Variance
Only where the evidence at trial doesn't match what was pleaded
- If party objects, then evidence is not admissible
- If party does not object, we act as though it was pleaded

Question 36

Can a party ask permission to amend to add new stuff?

Answer 36

Yes
FRCP 15(b)(1)

Question 37

Can a party amend after the statute of limitations has run?

Answer 37

Rule 15(c)
Can only do so if the amendment would relate back, that is, if new claim arises from the same conduct, transaction, or occurrence as the original complaint

2 Ways this comes up:

(1) Trying to amend to add a claim
(2) Trying to amend to change the ∆

Question 38

Supplemental Pleadings
Rule 15(d)

Answer 38

Rule 15(d)

• Where you want to add something that happened after the case was already filed
• Not an amended pleading because event has to occur after the case was filed
• Have to ask permission to file
• Never a right, but court is usually liberal