Pleadings - FRCP

Question 1

What are pleadings?

Answer 1

Formal documents filed with court stating parties’ basic positions

Common pre-trial pleadings
* Complaint
* Answer
* Reply (answer to new allegations in pleadings)
* Counterclaim

Motions are NOT pleadings; motions are requests for court order

Suplemental pleadings: used for events that happen after pleadings were filed
* Party must make motion for leave to file supplemental pleading and court may grant/deny at its discretion
* Ex. P sues D for breach of K. After case filed, D punches P. P can’t amend complaint to include tort claim; P must make motion for leave to file supplemental pleading.

Question 2

What must be included in a complaint?

Answer 2

• (1) Grounds for subject matter jurisdiction
• (2) Short and plain statement of why plaintiff is entitled to relief
• (3) Demand for relief sought (damages, injunction, declaratory judgment)

Overall, complaint must plead sufficient facts to support a PLAUSIBLE claim

“Plausibility” is based on judge’s own experience and common sense

For fraud, mistake, and special damages, complaint must plead with particularity or specificity (include more detail)

Question 3

How can D respond to a complaint?

Answer 3

MOTION or ANSWER

Deadline: respond within 21 days of being served with process
* If D waived service, D has 60 days from when P mailed waiver form

Question 4

List Rule 12 motions

Answer 4

• Rule 12(e) motion for more definite statement
• Rule 12(f) motion to strike
• Rule 12(b)(6) motion to dismiss for failure to state a claim

Motion for more definite statement: complaint is so vague and ambiguous that D can’t respond
* If true, D MUST make motion before answering

Motion to strike: asks court to “strike” redundant or immaterail things from a pleading (complaint/answer)
* P or D can move to strike

Question 5

What defenses will be waived if not included in the first Rule 12 response? What defenses are not waived?

Answer 5

Waivable Defenses under Rule 12(b)
* Lack of personal jurisdiction
* Improper service of process
* Improper process (problem with summons/complaint document)
* Improper venue

If the above defenses are not asserted in first response, they’re considered waived.

Defenses that are NOT Waived
* Lack of subject matter jurisdiction
* Failure to state a claim (can even be made during trial)
* Failure to join an indispensable party (can even be made during trial)

Lack of SMJ
* Can raise anytime; any act without SMJ is void so court MUST dismiss or remand
* Only lack of SMJ can be raised on appeal

Question 6

What are the two ways in which D can object to personal jurisdiction?

Answer 6

(1) Raise it in pre-answer 12(b) motion to dismiss
(2) If D has not raised a 12(b) MTD, raise defense in D’s answer or in any amendment as of right

Ex. If D makes 12b6 MTD without including lack of PJ, D has effectively waived defense of lack of PJ

Question 7

If D makes motion to dismiss under Rule 12 and it’s denied, when does D need to serve answer?

Answer 7

Within 14 days after notice of the denial

Question 8

Timing of Pre-Answer Motions - Review

Question 9

What does D need to include in an answer?

Answer 9

(a) ADMIT, DENY, or state INSUFFICIENT KNOWLEDGE
(b) Affirmative Defenses

Failure to deny an allegation is an admission (except for amount of damages)

• Admit some/all allegations;
• Deny some/all allegations
• Say D has insufficient knowledge to admit or deny some/all allegations (only if answer is NOT within D’s control)

Affirmative Defenses
* SOF
* SOL
* Res judicata
* Self-defense
* All Rule 12(b) defenses can be pleaded as affirmative defenses (If D doesn’t assert them, might be waived)

Question 10

Does P need to respond to affirmative defenses in D’s answer?

Answer 10

NO, allegations in D’s answers are deemed denied by P

Question 11

Amendment

When can a complaint be amended?

Answer 11

An issue not raised by the pleadings is treated as if raised in the pleadings IF it’s tried by the parties’ express or implied consent. In such a case, a party may move at any time, even after judgment, to amend the pleadings to conform them to the evidence and to raise the unpleaded issue

Question 12

How many times/when can P amend her complaint as of right?

Answer 12

P can amend complaint ONCE within 21 days after D serves first Rule 12 response.

Question 13

How many times/when can D amend her answer as of right?

Answer 13

D can amend answer ONCE within 21 days of serving it.

If D’s first response was an answer and he forgot to raise waivable defenses and affirmative defenses, D can amend answer to include waivable defenses and affirmative defenses

Question 14

How can parties amend after “right to amend” has expired?

Answer 14

Amending party can seek leave of court OR written consent of opposing party
* Court will allow amendment if justice so requires (looks at length of delay, prejudice to other party, futility of amendment)

Court generally allows amendment

Question 15

What is variance?

Answer 15

When evidence at trial doesn’t match what was pleaded, if the other party fails to object, party introducing evidence can move to amend complaint to conform to evidence.

If other party DOES object, no amendment allowed since evidence is “at variance” with the pleadings.

Ex. P sues for breach of K; at trial, P shows evidence D assaulted her and D doesn’t object. P can move to amend complaint to show assault claim.

Question 16

When does an amended pleading “relate back”?

Answer 16

If amended pleading concerns same conduct, transaction, or occurrence as original pleading

“Relation back” = treat amended pleading as if it was filed when original was filed
* Avoids problem of SOL running on amended pleading

Question 17

When amendment is to change a defendant, when does it relate back?

Answer 17

• Amendment concerns same conduct, transaction, or occurrence as original
• D knew about case in a way where D won’t be prejudiced; and
• D knew or should’ve known that if it weren’t for a mistake, D would’ve been named

Example: P sued wrong defendant first, but right defendant KNEW P sued wrong defendant

D gets knowledge from the 90 days after filing complaint that P can serve process

Ex. P injured by D and sues wrong party but has process served on D. Here, D knew P sued the wrong party. If statute of limitations runs before P finds out problem, P can still amend complaint to sue D.

Question 18

What is the Rule 11 signature requirement?

Answer 18

When lawyer/pro se party signs documents, she’s certifying that to best of her knowledge and belief and after reasonable inquiry:
* Paper is NOT for improper purpose
* Legal contentions are warranted by law or a nonfrivolous argument to change the law
* Factual contentions/denials of factual contentions are supported by evidence or are likely to after further investigation

This certification is a “continuing certification” - applies whenever party “presents” a position to the court

Applies to all papers except discovery

Question 19

What are sanctions and what is their purpose?

Answer 19

Types of Sanctions
* Non-monetary sanctions (common)
* Monetary sanctions (paid to court)

Purpose: To deter conduct that violates Rule 11
* Imposed against party, lawyer, or lawyer’s firm

Non-monetary sanctions
* Requiring lawyer to attend professionalism classes

Question 20

What is sua sponte?

Answer 20

“On its own motion” - meaning the COURT raises the motion itself

Question 21

How are sanctions imposed?

Answer 21

(a) Party can file motion for sanctions
* Party must first serve motion on other parties; party in violation has 21 days to fix problem and avoid sanctions
* If problem not fixed, motion can be filed with court

Question 22

FRCP Deadlines

Answer 22

Service of Process: 90 days after complaint filed

D’s motion/answer: 21 days from service of process
* D’s answer IF motion denied: 14 days after notice of denial

Amendments
* Amending Complaint (by P): 21 days after D’s Rule 12 response
* Amending Answer (by D): 21 days of serving answer

Sanctions: Party in violation has 21 days safe harbor to fix problem