Pleadings & Motions

Question 1

Complaint - Requirements (3)

Answer 1

Must contain:

1) Statement of jx: short and plain statement of grounds upon which the court’s jx depends

2) Statement of the Claim: Short and plain statement of P’s claim, showing entitlement to relief

3) Demand for Judgment: Description of relief sought (e.g. money damages, injections, etc.)

Question 2

Complaint - Plausibility Pleading Standard

Answer 2

Complaint must contain sufficient factual matter to state a claim that is plausible on its face

Allegations are accepted as true, but conclusory allegations are ignored

Plausibility means factual content that allows the court to draw the reasonable inference that D is liable

Plausibility is more than possibility but less than probability

Judges are encouraged to use their judicial experience and common sense

Question 3

Answer - Timing

Answer 3

Must be filed within 21 days of service of process, or 14 days after a ruling on a Rule 12 motion

Question 4

Answer - Requirements (2)

Answer 4

1) Respond to Allegations of complaint

2) Raise affirmative defenses

Question 5

Answer - Available Responses (3)

Answer 5

1) Admit allegations

2) Deny allegations – failure to deny can constitute admission on any issue except damages

3) Lack sufficient information to admit or deny allegations

Question 6

Answer - Affirmative Defenses that May be Waived if not Pleaded in Answer (7)

Answer 6

1) Contributory negligence
2) claim preclusion
3) Statute of Frauds
4) Fraud
v) Statute of Limitations
6) Self-Defense
7) Res Jusicata

Question 7

Rule 12 Motion - Rule 12 (b) Defenses (7)

Answer 7

1) Lack of SMJ
2) Lack of PJ
3) Improper Venue
4) Insufficiency of Process
5) Insufficiency of service of process
6) Failure to state a claim
7) Failure to join a necessary party

Question 8

Rule 12 Motion - the 4 Defenses that are waived

Answer 8

1) Lack of PJ
2) Improper Venue
3) Insufficiency of Process
4) Insufficiency of Service of Process

Question 9

Motion for More Definitive Statement

Answer 9

If complaint is so vague or ambiguous that D cannot reasonably prepare a response, D may move for more definitive statement from P

Question 10

Motion to Strike

Answer 10

D may move to strike from the complaint (or court may strike on its own)any redundant, immaterial, impertinent, or scandalous material

Question 11

Motion for Judgment on the Pleadings

Answer 11

P or D may move for judgment on the pleadings when the complaint plus the answer reveal that one party must win

E.g. D’s answer admits all allegations in P’s complaint; P must win

Question 12

Compulsory Counterclaim

Answer 12

Same transaction or occurrence

Required in answer – must be filed or it is waived

Question 13

Permissive Counterclaim

Answer 13

Different transaction or occurance

Not required in answer; can be buy can wait

Question 14

Cross-Claim - Requirements

Answer 14

Same transaction or occurrence

Must have independent SMJ (will almost always satisfy supplemental)

never compulsory

Question 15

Amending Pleadings - Amendment as a Matter of Course (2)

Answer 15

May occur either:

1) within 21 days after service, or

2) if the pleading is one which requires, within 21 days of service of the responsive pleadings or pre-answer motion

• Party has 14 days or time remaining on initial 21 day deadline (whichever is longer) to respond to an amended pleading Amending Pleadings -

Question 16

Amending Pleadings - Amendment Without Right (2)

Answer 16

Party may only amend with either:

1) written consent of the adverse party, or

2) Leace of court – sought by motion

Leave will be granted freely when justice requires (lenient standard); court looks to:

a) Length of an reasons for movant’s delay
b) Potential prejudice to parties; and
c) Futility of amendment

Question 17

Relation Back - Requirements (Mew Claim)

Answer 17

Amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as original pleading

Question 18

Relation Back - Requirements (New or Substituted D) (2)

Answer 18

1) Amendment concerns the same conduct, transaction, or occurrence as original pleading, and

2) Within 90 days of filing the original pleading

i)New D knew of or received notice of action; and

ii) New D knew or should have known that, but for a mistake, she would have been named originally

Question 19

Rule 11 Certification

Answer 19

Signature acts as certification that, to the best of the signor’s knowledge, after all reasonable inquiry taken:

1) Filing is not for an improper purpose (e.g. harassment, delay)

2) Non-frivoulous legal contentions made are warranted by law and

3) Factual contentions have evidentiary support

Question 20

Rule 11 Sanctions - General

Answer 20

Court may issue sanctions for violations, eeither on the court’s own initiative or an opponent party’s motion

Court may not impose monetary sanctions on represented parties for frivolous legal contentions (Sanctions on attorney are OK)

Rule discourages monetary sanctions by urging non-monetary sanctions and by creating a default rule that sanctions are payable to court (rather than to movant)

Question 21

Rule 11 Sanctions - Safe Harbor

Answer 21

Rule 11 motion is served but may not be filed with the court for 21 days, creating a safe harbor

Party may withdraw the offending document or otherwise remedy the problem

If not remedied or withdrawn, motion can be filed

The jusde need not provide safe harbor

Question 22

Rule 11 Sanctions - Hearing Requirement

Answer 22

Court must give attorney or party a chance to be heard before imposing sanctions

Question 23

Rule 11 Sanctions - Hearing Requirement

Answer 23

Court must give attorney or party a chance to be heard before imposing sanctions