Pleadings - CC Procedure Flashcards
Complaint components
Form and content – captioned with party names and court names, ask for specific relief, every complaint asking for money must have ad damnum clause stating amount of damages sought, state facts on which P relies so as to inform D of nature of claim
Filing by counsel – assures it is in good faith and without delay
Pleading in alternative – party asserting claim/counterclaim/cross, etc., may plead alternative facts and theories of recovery against alternative parties so long as all such claims/demands arise out of same transaction or occurrence
Answer / Responsive pleading compenents
Must be filed within 21 days after service.
A demurrer, plea, motion to dismiss, and bill of particulars are all pleadings.
What is a motion for bill of particulars?
Asks P to amplify his pleading in case it does not provide notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case.
What grounds may a MTD be filed on?
Any which would result in dismissal.
What is demurrer?
Pleading stating that although the facts alleged in a complaint may be true, they are insufficient to state a claim for relief and for D to frame an answer.
Basically a 12(b)6 motion in federal practice! Must be in writing and must state specifically the grounds upon which the pleading is alleged to be insufficient at law.
What is a plea to the statute of limitations?
Allegation an action is barred by SOL is sufficient without specifying the particular statute being relied upon.
Answer
Primary responsive pleading. Give D’s side of story by denying liability. IF no other responsive pleading is filed, answer must be filed within 21 days of service.
Must D raise affirmative defenses in answer?
Yes or they will be waived.
When is a D in default?
If he does not file a response to complaint within 21 days or service or other time frame set by Court.
Can court grant leave to D in default to file response?
Yes, for good cause shown.
Once in default, what can P do?
Move for default judgment.
What relief can D get from default judgment?
Within 21 days of entry of default, court by written order may relieve D of default judgment after consideration of:
1. extent and causes of D’s delay in tendering a response
2. whether service of process and actual notice of claim were timely provided to D; and
3. the effect of the delay upon P.
Can courts grant relief from judgment after 21 days from entry of default?
NO, EXCEPT for fraud on the court, void judgment, proof of accord and satisfaction, proof D was in military, or bill of review.
When reply is appropriate?
If plea, motion, or affirmative defense sets up a new matter and expressly requests a reply, the adverse party must respond by admitting or denying the new matter within 21 days
What is a motion to strike a pleading?
Essentially a demurrer. Alleges a defense put forth, even if proven factually correct, does not make up a defense that is legally adequate. IT’s about striking DEFENSES.
When are amendments appropriate?
Need leave of court, but such leave is liberally granted to further the ends of justice. A misnomer in any pleading may be corrected by amending and substituting the right name.
When is a counterclaim appropriate?
D may plead any cause of action in counterclaim that D has against P or all Ps jointly, whether or not it grows out of any transaction mentioned in the complaint, whether or not it is for liquidated dames, whether it is in tort or contract, and whether or not the amount demanded in the counterclaim is greater than the amount demanded in the complaint.
Timing of a counterclaim
Within 21 days after service of complaint upon D asserting the counterclaim
Timing of response to counterclaim
Within 21 days after served on P.
Separate trials allowed between complaint and counterclaim?
Yes, in court discretion.
Are there compulsory counterclaims in VA?
NO. But remember, if in federal court, D fails to file certain counterclaims, he cannot bring them in a subsequent state proceeding.
Cross-claims, generally
D may plead cross-claim as to any cause of action he has against one or more Ds growing out of matter pleaded in complaint.
Must be filed within 21 days after service of complaint on D asserting cross-claim.
Response due within 21 days after service on other D.
Separate trials at discretion of court.
Impleader–third party practice, generally
Any time after commencement, D may plead as 3PP, file 3PP complaint on person not a party to action, who is or may be liable for all or part of P’s claim against D/3PP.
D/3PP must obtain leave of court if 3PP complaint is filed more than 21 days after D/3PP files original pleading in response to P.
Response by 3PD is in same manner as any D.
P must assert claim against 3PP D arising out of transaction/occurrence in their claim against the 3PD, and must do so within 21 days of service of 3PP’s complaint.
If counterclaim is brought against P, they too may bring in 3PD in same way.
What is intervention?
New party gets leave of court to file a pleading to intervene as P or D to assert any claim or defense germane to subject matter of the proceeding.
What is statutory interpleader?
Whenever any person is or may be exposed to multiple liabilities through the existence of claims by others to the same property or fund held by him or on his behalf, such person ,ay file a pleading and require those parties to interplead their claims (D may do same if exposed to similar liabilities
Court can order interpleader to pay or tender to the court the property claimed, or do so voluntarily; court may then order that person discharged from all or part of any liability as to claimants of the property
