pleadings, joinder of parties & claims, discovery Flashcards
complaint
- filing of complaint commences action
- must contain: statement of claim; and demand for relief sought; grounds for SMJ
details in complaint
pff must plead sufficient facts to support plausible claim
D’s response and timing
rule 12 requires D to respond in one of 2 ways
1) by motion or 2) by answer
to avoid default, D must do one of these 2 things no later than 21 days after being served with PROCESS
D who waives service of process is allowed 60 days from when pff mailed service of process waiver form to respond by answer or 12(b) motion
motions
- some rule 12(b) defenses are waived if not put in the first rule 12 response (motion or answer); they are:
a) lack of PJ
b) improper venue
c) improper process
d) improper service of process - some rule 12(b) defenses can be raised later (e.g., failure to state a claim; failure to join a party; lack of SMJ can be raised at any time)
- if rule 12 motion to dismiss is denied, defendant must serve her answer
objections to PJ
may be asserted by pre-answer motion or in answer (objection just must be asserted in D’s first response)
the defendant’s answer
D does 2 things in answer
1) respond to allegations in complaint (admit some or all allegations; deny some or all allegations; say she has insufficient knowledge to admit or deny)
2) raise affirmative defenses (e.g., statute of frauds, res judicata, self defense) or else waived
amended pleadings
(4 things)
1) right to amend (pff has right to amend her complaint once within 21 days after D serves her first rule 12 response; D has right to amend his answer once within 21 days of serving it)
2) amendment after “right to amend” has expired – need to seek leave of court
3) amendment after statute of limitations has run
- to join a claim not originally asserted – amended pleading “relates back” if pleading concerns the SAME CONDUCT or OCCURRENCE as ORIGINAL pleading (pleading being amended)
- relates back means you treat amended pleading as though it was filed when original was filed to avoid statute of limitations problem
- to change a defendant – amendment will relate back if it concerns SAME CONDUCT as in ORIGINAL pleading and D KNEW that, if no mistake, she would’ve been named originally and received notice of the action (knowledge must have come within period for service of process - 90 days after filing of complaint)
4) variance: evidence at trial doesn’t match what was pleaded (if other party does not object, party introducing evidence can move to amend complaint to conform to the evidence)
rule 11
rule 11 applies to all papers (except discovery which is treated by similar rule) - requires attorney to sign all pleadings, motions, etc.
when lawyer signs docs, she certifies that to the best of her knowledge, after reasonable inquiry:
- the paper is not for improper purpose
- she has evidence and legal arguments aren’t frivolous
types of rule 11 sanctions
- before imposing sanction, court must give sanctioned party a chance to be heard
- courts often impose non-monetary sanctions; monetary sanctions, if imposed, are paid to the court
- purpose of sanctions is to deter repetition of conduct
who does court impose the rule 11 sanctions on?
attorney or law firm responsible
rule 11 safe harbor provision
party can fix problem and avoid sanctions; if problem not remedied or withdrawn within 21 days, rule 11 motion can then be filed
basic idea re JOINDER
- how many parties and how many claims can be joined in one case
- REMEMBER THAT EVERY SINGLE CLAIM in fed court must have SMJ
claim joinder by PLAINTIFF
- easy b/c pff can join any additional claim she has against that adverse party
- but remember: there MUST SMJ OVER CLAIM TOO — need to check for SMJ
**FRCP – pff can join any additional claim, even if unrelated to original claim
**SMJ analysis – remember that a single pff can aggregate her claims against a single D to get over 75k (and if there’s diversity of citizenship – you have SMJ!)
multiple plaintiffs or multiple defendants
claims by multiple pffs (e.g., sue together as co-pffs) or against multiple Ds must:
(1) arise from the same T/O; AND
(2) raise at least one common question of fact/law
You can have multiple pffs or multiple Ds in a case as long as the claims arise from same T/O and raise at least one common question of law/fact
REMEMBER that there MUST BE SMJ over the claim too
necessary and indespensible parties to the case
court might FORCE some absent party to join in the case - usually on motion by D
3 questions
1) is absentee necessary?
2) if necessary, can they be joined?; and
3) if absentee can’t be joined…can case continue anyway?
is absentee necessary
necessary means:
- complete relief can’t be accorded with existing parties
- absentee’s interest would be harmed if she’s not joined (MOST IMPT)
joint tortfeasors are NEVER NECESSARY
can absentee be joined
if absentee necessary, court will see if joinder of absentee is feasible
feasible if:
1. there’s PJ over absentee; and
2. there will be federal SMJ over claim by absentee (or against absentee); court aligns absentee as a pff or D based on absentee’s interest
*if joinder of absentee is feasible, absentee is joined to case
what if absentee can’t be joined
court has to determine whether to proceed without them or dismiss entire case
court looks at:
- alternative forum/maybe some state court
- likelihood of harm to absentee
NOTE: you don’t necessarily need necessary party’s presence to continue with case
counterclaim
- claim against OPPOSING party (usually this is a claim by D against P; but it can also be a response to a cross claim)
- counterclaim is part of D’s answer
compulsory counterclaim
one that arises from same T/O as pff’s claim
must file in pending case or claim is waived
permissive counterclaims
one that doesn’t arise from same T/O as pff’s claim
*there needs to be SMJ over the counterclaim!
SMJ re counterclaims
as always, there MUST BE SMJ over the counterclaim
if the counterclaim cannot invoke diversity or FQ, then check to see if there’s supplemental jdx
crossclaim
- claim against a CO-PARTY—must arise from same T/O as underlying action
- PERMISSIVE - can be asserted in another case
- the cross claim ALSO must have SMJ (if can’t invoke diversity or FQ, then check to see if there’s supplemental jdx over the cross claim)
look at HYPO 9C
impleader
- one where a defending party (usually D) brings in a new party
- the party bringing the impleader claim is called a defendant/third party pff and the new party is called a third party D; there must be SMJ over impleader claim
- PERMISSIVE (only compulsory claim is the compulsory counterclaim)
