Pleadings & Motions Flashcards
Service
By: anyone 18+ who is not a party
When: in 90 days of filing complaint
How: personally to defendant; at defendant’s usual abode to someone of suitable age and discretion who resides there; to agent; method permitted by state where federal court sits or where service is made; to officer (corp)
Service Waiver
How: mail notice, request to waive, complaint, 2 copies of waiver form, prepaid envelope
When: to waive, defendant must mail back in 30 days
Effective: when plaintiff files the waiver
Complaint
Must contain grounds of SMJ, statement of a plausible claim, demand for relief.
Response
A defendant must respond to a complaint by motion or by answer in 21 days of being served (60 days if waived service).
Rule 12 Motions
Lack of SMJ: can be raised any time
Lack of PJ, improper venue, improper process or improper service: waived if not raised in defendant’s first response
Failure to state a claim upon which relief can be granted or failure to join an indispensable party: can be raised anytime before trial or at trial
If a Rule 12 motion is denied, defendant must file the answer in 14 days.
Answer
The answer must admit or deny allegations and can raise affirmative defenses.
Amendment
Plaintiff: can amend complaint once in 21 days after defendant’s first response
Defendant: can amend answer once in 21 days after serving it; if the answer was the first response, the amendment can include Rule 12 defenses
After statute of limitations runs:
-an amended claim can avoid a statute of limitations problem if it concerns the same transaction or occurrence as the original pleading
-an amended defendant can avoid a statute of limitations problem if it concerns the same transaction or occurrence as the original pleading, the defendant had notice of the case within 90 days of original filing, and the defendant should have known that she should have been named originally
