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Civ Pro > Pleadings & Motions > Flashcards

Pleadings & Motions Flashcards

1
Q

A pleading that states a claim for relief must contain:

A

Rule 8(a):

  1. Statement of SMJ
  2. Short and plain statement of the claim
  3. A demand for relief
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2
Q

Rule 11(a)

A

only applies to written pleadings, motions, or other papers submitted by lawyers (not litigation or discovery conduct)

  • attorneys must sign and include contact info
  • pro se litigants must sign their own
  • if not signed, pleadings will be stricken unless promptly corrected
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3
Q

Rule 11(b) Certification - Requires attorneys to sign documents, certifying that they made a reasonable inquiry that:

A
  1. the document is not for an improper use
  2. your legal contentions are warranted
  3. your factual contentions will likely have evidentiary support
  4. your denials of factual contentions will likely have evidentiary support
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4
Q

Who can be sanctioned under Rule 11(c)?

A
  • individual attorneys
  • law firms
  • parties (but only for factual contentions)
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5
Q

Who can seek sanctions under Rule 11(c)?

A
  • party via motion - 11(c)(2)

- court on its own initiative, with order to show cause - 11(c)(3)

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6
Q

How must a motion for sanctions be brought?

A
  • must be made separately from any other motion
  • describe specific conduct that violated Rule 11(b)
  • serve pursuant to Rule 5
  • A party can’t present or file it with court until after the person being served is given 21 days to correct the written submission after being served with the motion (Safe Harbor)
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7
Q

What types of Sanctions are available under Rule 11(c)?

A
  • monetary sanctions paid to the court
  • order reasonable expenses (including attorneys fees) paid to movant
  • non-monetary directives
  • must be limited to what suffices to deter repetition of conduct
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8
Q

Under what situations are pleading standards heightened?

A

Rule 9(b) & (g)

  • fraud, mistake or special damages
  • must be stated with particular detail
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9
Q

Voluntary Dismissal - Rule 41(a)(1)(A)(i)

A
  • plaintiffs can voluntarily dismiss at any time before the defendant answers or at any time that all parties agree - usually when they settle
  • will be without prejudice unless defendants are not agreeing to dismiss without prejudice
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10
Q

Involuntary Dismissal - Rule 41(b)

A

If P fails to prosecute or to comply with pleading rules or a court order, a D may move to dismiss the action or any claim against it
- most likely going to count as an adjudication on the merits (dismissed with prejudice)

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11
Q

How can a Defendant respond when they are sued?

A

Respond by either:

  • answer
  • motion
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12
Q

How long does a Defendant have to respond when they are sued?

A

Within 21 days of service of process

- if D waived service under 4(d) - they have 60 days

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13
Q

Is a motion under Rule 12 a pleading?

A

No, its a request for a court order

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14
Q

How many defenses may be asserted in motion to dismiss under Rule 12(b)?

A

7 - may be asserted in motion to dismiss or answer:

  1. Lack of SMJ
  2. Lack of PJ
  3. Improper Venue
  4. Insufficient Process
  5. Insufficient Service of Process
  6. Failure to State a Claim
  7. Failure to join a party under Rule 12
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15
Q

What defenses must be raised in your first 12(b) response? What happens if they are not raised at first?

A
  • Lack of PJ
  • Improper Venue
  • Insufficient Service of Process
  • Insufficient Service of Process

Failure to raise them in first response constitutes a waiver

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16
Q

When can a 12(b) motion for lack of SMJ be brought?

A

At any time - it can never be waived

17
Q

When can a 12(b) motion for Failure to State a Claim or Failure to Join a Party?

A

Can be raised for the first time at any point during the trial - can’t on appeal

18
Q

When can a Motion for Judgment on the Pleadings be brought? - Rule 12(c)

A
  • after an answer has been filed and at any time through trial
  • used when facts are not disputed, but claim in legally sufficient
  • if matters outside the pleadings are submitted in support, it will be treated as a Motion for SJ
  • can be filed by D or P (in response to claims made in the Answer)
19
Q

What can a defendant do if the complaint if vague or ambiguous such that defendant cannot reasonably prepare a response?

A

File a motion for a More Definite Statement - Rule 12(e)

- it should be made before filing an answer and should point out the defects and details desired

20
Q

Motion to Strike - Rule 12(f)

A

Court may, on its own or by motion from a party before responding, strike from a pleading:

  • an insufficient defense (fails under substantive law) OR
  • any redundant, immaterial, impertinent, or scandalous matter
21
Q

How long does a Defendant have to answer a complaint after their motion is denied?

A

14 days

22
Q

What can a Defendant do in their answer? Rule 8(c)

A

either admit, deny or say you lack info to admit or deny any allegations in the complaint

23
Q

What happens if a defendant fails to deny a claim?

A

failure to deny constitutes an admission of any claim except damages

24
Q

When must an affirmative defense be pleaded?

A

In defendant’s answer, or else it is waived

25
Q

Rule 15(a) - Amendments before Trial

When can a party amend?
How many times?

A
  • P has a right to amend once, within 21 days after D serves first Rule 12 response
  • D has a right to amend once, within 21 days after serving an answer
  • If 21 days has past, you can ask court permission for leave to amend - courts will usually allow unless you have waited too long or it will prejudice someone
26
Q

Rule 15(b) - Amendments During or After Trial

A 
Rule 15(b)- Variance
Where evidence at trial doesn't match what was pleaded
- if party objects, then evidence is not admissible
- if party does not object, we act as though it was pleaded
27
Q

Can a party ask for permission to amend to add new stuff?

A

Yes - Rule 15(b)(1)

28
Q

Can a party amend after the SOL has run?

A 
Rule 15(c)
Can only do so if the amendment would "relate back" - if new claim arises from the same, conduct, transaction or occurrence as the original complaint

2 ways this can come up:

  1. trying to amend to add a claim
  2. trying to amend to change the defendant
29
Q

Supplemental Pleadings - Rule 15(d)

A
  • where you want to add something that happened after the case was filed
  • not an amended pleading because event has to occur after the case was filed
  • have to ask for permission to file
  • never a right, but court is usually liberal

Civ Pro (9 decks)

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