Pleadings (Complaints and Answers)

Question 1

What must a complaint contain?

Answer 1

facts that constitute a cause of action. In IL, this is LIBERALLY interpreted.

Question 2

If the complaint is about a written instrument, what must you include?

Answer 2

A copy of the written instrument attached as an exhibit, otherwise the complaint is invalid.

Question 3

Can you include a request for punitive damages in the complaint?

Answer 3

No. May NOT request punitive damages in complaint. P must demonstrate at a hearing that punitive damages are warranted, then a judge gives leave to amend the complaint.

Question 4

What do you need to file a medical malpractice complaint?

Answer 4

Include an affidavit swearing that a qualified health care professional has or will file a report within 90 days that the action has merit.

Question 5

How do you get a trial by jury?

Answer 5

Must demand it in complaint, and must have a constitutional right to it.

Question 6

What are the three responses to a complaint?

Answer 6

1. Fairly and precisely admit allegations
2. Fairly and precisely deny allegations
3. State you have insufficient knowledge, and attach an affidavit of ignorance even after inquiry.

Question 7

When must you raise affirmative defenses?

Answer 7

Must raise ALL affirmative defenses in the answer, otherwise they are considered waived.

Question 8

When can you amend a complaint?

Answer 8

Whenever its just and reasonable to serve the merits of the case. IL LIBERALLY grants motions to amend.

Question 9

When will an amendment to add claims or parties conform to the Statute of Limitations, even if the time has passed?

Answer 9

When the amendment RELATES BACK to a timely complaint that DID conform to the SoL

Question 10

When is it ok to relate back claims?

Answer 10

When the claims derive from the same transaction or occurrence as the earlier timely complaint.

Question 11

When is it ok to relate back parties?

Answer 11

1. When the claim against the new party derives from the same transaction/occurrence AND
2. New party MUST have acquired knowledge that BUT-FOR a mistake in name/clerical error, it WOULD have been sued. Knowledge acquired within time of reasonable diligence allowed for service of process.

Question 12

What is the Statute of Limitations for personal injury tort claims?

Answer 12

2 years from discovery of injury in which to file.

Question 13

What is the Statute of Limitations for medical malpractice claims?

Answer 13

4 years from date of injury OCCURRENCE in which to file.

Question 14

What is a statute of repose?

Answer 14

Statute that begins to run at the time of the event, offering the outer most time for filing a lawsuit.

Question 15

What are the exceptions to the Statute of Limitations?

Answer 15

1. Fraudulent concealment OR

2. Disability: if P is disabled, P gets another two years after disability is removed to file. (coma).

Question 16

On Jan 10, 2010 Paula and her friend have lunch at the Palmer House in Chicago. Paula eats a salad there and vomits, and discovers there’s foreign matter in her food.
On Jan 5, 2012, Paula files a tort claim in IL state court against “Palmer House Hotel”
Feb. 2, 2012: Authorized processor makes proper in-hand service to hotel manager, who sends the process to corporate counsel.
March 10, 2012: Paula realizes she named the wrong D and files motion to amend it to “Hilton Hotels, Inc” Should court grant motion?

Answer 16

Yes. First complaint was timely. Amendment to party who related to the same occurrence, and timely served, they had knowledge of service, would be proper if not for mistake.