Pleadings & Motions

Question 1

What is Cross-Claim? (example?)

Answer 1

Offensive Claims asserted by a co-party (E.g.: Don (P) sues Sterling (D1) and Cooper (D2). Sterling may assert a cross-claim against Cooper in the same case when Don sued them both)

Question 2

Requirements (Cross-Claim)

Answer 2

• It has to come from the same transaction or occurrence as the original underlying action
• It cannot be compulsory, Unlike counterclaims stemming from the same transaction or occurrence

Question 3

Jurisdiction (Cross-Claim)

Answer 3

• It must have an independent basis for SMJ
• Cross-claims will almost always satisfy supplemental SMJ requirements b/c they must arise from the same transaction or occurrence

Question 4

Counterclaim: What is?

Answer 4

An offensive claim by D, either compulsory or permissive, raised by D against P, which may be pleaded in D’s answer to the complaint.

Question 5

Counterclaim: Requirement:

Answer 5

D must ensure the court has Jx to hear any counterclaim. Compulsory counterclaims will almost always have supplemental Jx (Because they require same T/O)

Question 6

Compulsory counterclaim

Answer 6

When the claim is based on the same transaction or occurrence. The answer is required otherwise it will be waived (D cannot assert it in a separate action later)

Question 7

Permissive counterclaim

Answer 7

When the claim is from a different transaction or occurrence (is NOT same T/O) The answer is not required, may be filed with D’s answer to P’s complaint, but does not have to be (i.e. can be asserted in a separate action filed by D)

Question 8

What is Rule 11? (Certification and Sanctions)

Answer 8

Rule 11 requires the attorney or pro se party to sign all pleadings, written motions and other papers

Question 9

Rule 11 Certification?

Answer 9

Signature of the attorney 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-frivolous legal contention made are warranted by law; and
3. Factual contentions and denials have or are likely to have evidentiary support

Question 10

Rule 11 Sanctions?

Answer 10

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

• Safe Harbor: Sanctions only happen after 21 days from the filing of the offending document
• Hearing required: Court must give attorney or party a chance to be heard before imposing sanctions

Question 11

Rule 11 Safe Harbor?

Answer 11

Rule 11 motion for sanctions may not be filed until 21 days following service of the offending document. in the meantime, the party may withdraw the offending document or remedy the problem If not remedied or withdrawn motion can be filed

Question 12

Amending Pleadings?

Answer 12

Parties may amend their pleading once as a matter of course.

Additional amendments may be granted with consent or other parties or court permission (amendment without right)

Amendment can also fix the complaint to conform with evidence

Question 13

Amendment as a matter of course

Answer 13

may occur either:

• a) within 21 days after service, or
• b) If the pleading is one which requires a response, within 21 days of service of the responsive pleading or pre-answer motion (e.g. a Rule 12 Motion)

e. g. if D answers P’s complaint, P has 21 days from service of the answer to amend complaint)
* Party has 14 days or time remaining on initial 21-day deadline (whichever is longer) to respond to an amended pleading

Question 14

Amendment without right

Answer 14

Party may only amend with either:

• a) Written consent of the adverse party, or
• b) Leave of court (i.e. court’s permission) sought by motion
  
  • Leave will be granted freely when justice requires [Leninent standerd]; court looks to:
    
    • (i) Delay that will be caused;
    • (ii) Potential prejudice to parties; and
    • (iii) Futility of amendment

Question 15

Amending pleading: Relation Back

Answer 15

The relation-back doctrine when a party amends a pleading to add a new claim or D after the statute of limitation has run

Effect: If allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed

Question 16

Requirements: Amending pleading: Relation Back

Answer 16

1. - New Claim: Amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as the original pleading (i.e. if the new claim is based on the same general set of facts as the original pleading)
2. - New or substitute D: Amendment will relate back if
   
   1. Amendment concerns the same conduct, transaction, or occurrence as original pleading, and
   2. Within 90 days of filing of 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 (Applies when P sues the wrong D first, but the right D was aware of the mistake)

Question 17

Rule 12 Motion

Answer 17

D’s may attack the validity of P’s complaint through a Rule 12 motion

Question 18

Rule 12(b) defenses:

Answer 18

• 1. Lack of SMJ (anytime)
• 2. Lack of PJ (1st answer or waived)
• 3. Improper Venue (1st answer or waived)
• 4. Insufficiency of process (1st answer or waived)
• 5. Insufficiency of service of process (1st answer or waived)
• 6. Failure to state a cause of action (only in trial)
• 7. Failure to join a party (only in trial)

These defenses can also be included in the answer. However, if a separate motion is filed it need to be made before an answer

Question 19

Effect of omitting defenses on the first motion

Answer 19

The defenses are waived if not included in D’s rule 12 motion, provided they were available

Question 20

Rule 12(e): Motion for more definitive statement

Answer 20

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

Question 21

Rule 12(f): Motion to strike

Answer 21

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

Question 22

Rule 12(c): Motion for judgment on the pleadings

Answer 22

Similar to Rule 12(b)(6) motion for failure to state a claim; difference depends on timing

Question 23

Complaint?

Answer 23

The initial pleading in a lawsuit, filed by P, which begins an action

Question 24

Content requirements of the complaint?

Answer 24

1. Statement of Jx: Short and plain statement of grounds upon which the court’s Jx depends (i.e. why court has SMJ);
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, injunction, etc.)

Question 25

What is the standard of a notice on a complaint?

Answer 25

Complaint must give enough information to allow adverse party to be on notice and make a reasonable response

Detailed facts not required; allegation must only be sufficient for the court to plausibly infer that D could be liable if the allegation are true

Question 26

Complaints are normally general, but when you need to be specific?

Answer 26

Certain claims/issues must be pleaded with particularity, including:

1. 1) Fraud or mistake;
2. 2) Special damages;
3. 3) Judgement or official documents upon which the pleading party will rely

Question 27

Answer

Answer 27

Response to complaint, in which D states defenses to each claim asserted and admits or denies each count of P’s complaint.

Defenses can be pleaded in the alternative (e.g. In breach of K claim, D can deny K existed but also answer that if a K did exist, D performed under the K)

21 days after service of process or 14 days (unless waiver) after a Rule 12 Motion

Question 28

Timing of Answer

Answer 28

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

However, if service was waived, the D has 60 days after the P mailed the summons to answer

Question 29

Answer content requirements

Answer 29

An answer must:

1. respond to allegations of the complaint
2. raise affirmative defenses

Question 30

What are the defenses that are waived if not included in the answer?

Answer 30

• (i) Contributory Negligence;
• (ii) Fraud;
• (iii) Claim preclusion;
• (iv) Statute of limitation;
• (v) Statute of frauds;
• (vi) Self-defense

Question 31

What are the available responses to a complaint?

Answer 31

• a) Admit allegation
• b) Deny allegation - failure to deny can constitute admission on any issue except damages
• c) Lack sufficient information to admit or deny allegations, except when D has the info to confirm

Question 32

Interlocutory injunctions? Purpose? Requirement?

Answer 32

Courts orders requiring a person to do or cease doing a specific action before trial.

• General Purpose: Maintain status quo until final judgment
• General requirement: Provide security for costs and damages

Question 33

Preliminary injunctions?

Answer 33

Sought by a party prior to a trial on the merits of the complaint.

1. Security is required
2. Court may issue only on notice to adverse party, who must recieve an opportunity to be heard

Question 34

Temporary restraining orders? Requirements?

Answer 34

Issued by the courts, in its discretion, when necessary to prevent irreparable injury (element necessary) to a party that will result before preliminary injunction hearing can be heard. Requirements:

1. Irreparable injury
2. Affidavit by moving party shows immediate and irreparable injury will result before the other party can be heard;
3. Describes efforts made to give adverse party notice and why notice should not be required
4. Security?

Question 35

Notice in TRO?

Answer 35

Not required if movant shows: 1) affidavit describing irreparable damage; 2) effort to give notice; 3) Security to pay in case of a wrongful restriction Required to: hold other party in contempt)

Question 36

Permissive Joinder

Answer 36

P seeks to join non-parties either as a P or as a D

To join additional P, you need their consent

To join additional D, you just need to sue them, they cannot refuse

Question 37

Requirements for a joinder

Answer 37

1. Same T/O: joined parties assert a right to relief arising from the same T/O as P’s claim.
   
   • If the relief arises from the same T/O then you can join them
2. Common question of law or facts: The claims have the same question of law or facts.
   
   • if the relief is the same (damages, breach of contract) you can join them.

Eg. A bus accident, all passengers would have a claim against the driver (D), however, if a bus passenger wants to include, in addition to personal injury an action to stop the driver from driving again, then his action cannot be joined. He needs to file them individually

Question 38

Compulsory Joinder Requirements

Answer 38

Absent parties need to be forced into the case.

1. When a necessary party can be joined: the court would order the joinder
2. When a necessary party can’t be joined: the court would see if it’s indispensable
3. If the party is indispensable, then the court would either dismiss or proceed with the party.

Question 39

Requirements to be considered a necessary party

Answer 39

A party will be necessary if without him any of these options:

1. The court cannot grant complete relief to all parties (multiple suits could follow) (joint tortfeasor are not necessary)
2. A has legal interests that may be impaired or impeded (damages)
3. A has an interest that creates a risk of multiple or inconsistent rulings or double liability

If none of this element exists, then action can proceed without joining the D.

Question 40

When a necessary party MUST be enjoined?

Answer 40

When they can be enjoined by the court

He must be joined if

1. Court have PJ over Party
2. Joining the party would not destroy diversity

Question 41

When a party is indispensable?

Answer 41

First the party needs to be necessary. Then see this:

1. Is there an alternative forum that is available?
2. What is the likelihood of prejudice to the parties or others if the case goes forward?
3. Can the court give relief avoiding prejudice?
4. Would P have an adequate remedy if the case is dismissed?

Question 42

What is impleader?

Answer 42

Is an action by D, to join a non-party that may liable to D for the claim (indemnity, contribution only) brought to him by P (Contractor gets sued by a client, and then he sues his subcontractor)

The new party is a third-party defendant

and the original defendant now is a third party plaintiff

IT’s NOT COMPULSORY a TPP can sue independently to recover from the TPD

Question 43

Timing requirements for a impleader

Answer 43

Has to be done by the original D 14 days after answer (or by leave after that)

Question 44

What are the jurisdiction requirements for a Third Party Defendant that is included through an impleader?

Answer 44

1. D1 claim against D2 must be derivative (the original D cannot claim that he is no responsible)
2. Court must have jurisdiction over D2
3. D2 can sue D1 or P, as long as SMJ exist
4. P can also sue D2 if same T/O

Question 45

What is an Interpleader

Answer 45

An action by a non-party that is property holder, initiates a suit to compel multiple claimants to that property to litigate the dispute

There are two interpleaders, a Rule 22, interpleader (requires full diversity), and a statutory interpleader (one claimant must be diverse to fulfill SMJ and amount 500$)

Example: Issue with life insurance with a DE inc. that has PPB on FL. Claimants are from NY, NJ and FL. Rule 22: No diversity; Statutory: Diversity

Question 46

What is an intervention

Answer 46

A non-party that is an absentee to a case, seeks to join (intervene) as a P or as a D in a case that is pending

Can be mandatory (as a right) or permissive.

SMJ must be independent in diversity cases.

Question 47

When an intervention has to be accepted as a right and when is permissive?

Answer 47

1. As a right: Intervention when: Party intervening: (1) will be harmed by the outcome; (2) has a statutory right
2. Permissive: 1) Absentee has a common question on his claim or defense; (2) conditional statutory right; (3) gov. officer or agency and claim relates to the officer and agency. Courts would also avoid unduly delay or prejudice of original parties’ rights.​

Question 48

General explanation and differences between interpleader, intervention, joinder and impleader

Answer 48

1. Joinder: Action by a P to include D under the same T/O or common Q
2. Impleader: Action or joinder by D to include 3PD for indemnity or contribution
3. Intervention: A 3P seeks to be included in the case, he cannot destroy diversity
4. Interpleader: A property holder wishes to resolve a claim on the property by various claimants