Pleadings and Motions Flashcards
What FRCP deals with the complaint?
FRCP 8(a)
What 3 things must a complaint contain?
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
What FRCP governs the form of pleadings?
FRCP 10
Is rule 8 a strict standard? (Dioguardi; Conley)
No, courts have a pretty liberal view of FRCP 8
What does the holding from Dioguardi tell us?
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
Twombly
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
Iqbal
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
Swanson
Changes the plausibility standard from whether a set of facts are probable, to whether a set of facts are possible.
What responsibilities are placed on lawyers under Rule 11(a)? (3)
(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)
FRCP 11(b)
Certification requires attorneys sign documents to certify they made a reasonable inquiry that: (4)
(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
What does a court look for to determine a non-frivolous legal argument under FRCP 11(b)(2)? (2)
(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
Who can be sanctioned pursuant to FRCP 11(c)?
Who can be sanctioned:
1) Individual attorneys
(2) Law firms
(3) Parties (only for factual contentions
Who can seek sanctions pursuant to Rule 11(c)?
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)
Procedures for Rule 11(c) motions? (4)
(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)
What types of sanctions can be made under FRCP 11(c)? (4)
(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
Under what situations are pleading standards heightened?
FRCP 9(b) & (g):
(1) If fraud, mistake, or special damages
(2) Must be stated with particular detail
Voluntary Dismissal Rule
FRCP 41(a)(1)(A)(i)
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
Involuntary Dismissal Rule
FRCP 41(b)
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)
How can a ∆ respond when sued? (2)
(1) Answer
(2) Motion
How long does a ∆ have to respond when they are sued?
Within 21 days of service of process (exclude date of service)
If they waive service under 4(d), they have 60 days
Is a motion under FRCP 12 a pleading?
NO
It is a request for a court order
If a π files a FRCP 12 motion, how does a ∆ have to serve an Answer? (Denied and Grants)
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
How many defenses may be asserted in a 12(b) motion to dismiss?
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
What defenses must be raised in your first 12(b) response? What happens if they are not raised in the first response?
(1) Lack of PJ
(2) Improper Venue
(3) Insufficient Process
(4) Insufficient Service of Process
Failure to raise in first response constitutes a waiver
When can a 12(b) motion for Lack of SMJ be brought?
At any time, can never be waived
When can a 12(b) motion for Failure to State a Claim or Failure to join a party be brought?
Can be raised for the first time at any point during the trial.
Only can’t be brought on appeal
When can a motion for Judgment on the Pleadings be brought? FRCP 12(c)
(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)
What can a ∆ do if the complaint is vague or ambiguous such that a ∆ can’t reasonably prepare a response?
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
What is a Rule 12(f) motion?
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
How long does a ∆ have to answer a complaint after their motion is denied?
14 days
What can a ∆ do in their answer?
FRCP 8
Either admit, deny, or say you lack info to admit or deny any allegations in the complaint FRCP 8(c)
What happens if a ∆ fails to deny a claim?
Failure to deny constitutes an admission of any claim except damages
When must an affirmative defense be pleaded?
In ∆’s answer, otherwise it is waived
When can a party amend before trial? How many times can they amend? FRCP 15(a)
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
What are the rules for amendments during or after trial? FRCP 15(b)
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
Can a party ask permission to amend to add new stuff?
Yes FRCP 15(b)(1)
Can a party amend after the statute of limitations has run?
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 ∆
Supplemental Pleadings Rule 15(d)
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
