pleadings & motions

Question 1

complaint requirements

Answer 1

1) statement of jdx
2) statement of the claim showing entitlement to relief
3) description of relief sought

Question 2

answer timing

Answer 2

must be filed within 21 days of service or 14 days after a Rule 12 motion is denied or postponed until trial

Question 3

answer requirements

Answer 3

1) respond to allegations of complaint
2) raise affirmative defenses

Question 4

affirmative defenses waived if not explicitly pleaded in the answer

Answer 4

1) contributory negligence
2) claim preclusion
3) statute of frauds
4) fraud
5) statute of limitations
6) self-defense
7) res judicata

Question 5

rule 12(b) defenses

Answer 5

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 6

12(b) defenses waived if not included in first response:

Answer 6

1) lack of PJ
2) improper venue
3) insufficiency of process
4) insufficiency of service of process

Question 7

motion for more definitive statement

Answer 7

Rule 12(e)

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

Question 8

motion to strike

Answer 8

Rule 12(f)

D may move to strike from the complaint any redundant, immaterial, impertinent, or scandalous material

Question 9

motion for judgment on the pleadings

Answer 9

Rule 12(c)

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)

Question 10

compulsory counterclaim

Answer 10

claim by D against P that arises from the same transaction or occurrence as one of P’s claims; must be filed in D’s answer or will be waived

Question 11

permissive counterclaim

Answer 11

claim by D against P that arises from a different transaction or occurrence than any of P’s claims; not required to be filed with answer

Question 12

cross-claim

Answer 12

offensive claims asserted by a co-party against another co-party

Question 13

cross-claim requirements

Answer 13

must arise from the same transaction or occurrence as the underlying action; court must have independent basis for SMJ

Question 14

amendment as a matter of course

Answer 14

parties can amend once as a matter of course

may occur either:
1) within 21 days of service
2) within 21 days of service of responsive pleadings or pre answer motion if pleading is one which requires a response

Question 15

relation back doctrine

Answer 15

applies when a party amends a pleading to add a new claim or D after the statute of limitations has run; if allowed, amended pleading will be treated as if filed when original pleading was filed

Question 16

relation back requirements - new claim

Answer 16

amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as the original pleading (i.e., new claim is based on same general set of facts as og pleading)

Question 17

relation back requirements - new/substituted D

Answer 17

amendment will relate back if:
1) amendment concerns same conduct/transaction/occurrence as original pleading, and
2) within 90 days of filing of original pleading, new D knew of/received notice of action and new D knew/should have known that but for a mistake she would have been named originally

Question 18

rule 11 certification

Answer 18

signature acts as certification that, to the best of signor’s knowledge, after all reasonable inquiry:
1) filing not for improper purpose
2) non-frivolous legal contentions made are warranted by law or non-frivolous argument to change law and
3) factual contentions have evidentiary support