Pleadings/Motions (Module 8) Flashcards
Content of the Complaint
1) grounds for SMJ
2) short/plain statement of the claim
3) demand for relief sought
must contain sufficient facts to support a plausible claim; judge determine plausibility based on common sense/experience
Complaint for Fraud, Mistake, or Special Damages
Must be pleaded with more detail than normal complaint, i.e., with particularity
Defendant Responses to Complaint and Timing
1) Rule 12 motion; or
2) Answer (pleading)
D must do one of those two within 21 days after being served with process
If Rule 12 motion is denied, D has 14 days to send answer
Waiver of Service
If D waived service, then they have 60 days from when P mailed the waiver form to respond
Waiveable 12(b) Motions
If not put in first response to complaint (pleading or motion) then the following are waived:
1) lack of PJ
2) improper venue
3) improper process
4) improper service
Unwaived 12(b) Motions
If D doesn’t put these in the first response they can still be raised later:
1) failure to state a claim
2) failure to join indispensable party
3) lack of SMJ (can be raised at any time)
Answer (i.e, Pleading)
Requirements:
1) D can admit/deny some or all of the allegations, or say they have insufficient knowledge to answer
- Failure to deny an allegation is an admission
2) Raise affirmative defenses
Waiveable Affirmative Defenses if Not Stated in Answer
1) SOL expired
2) SOF issue
3) Res judicata (claim preclusion)
4) Self-defense
Plaintiff does not have to respond to an affirmative defense
Right to Amend Pleadings (Plaintiff)
Right to amend one time no later than 21 days after D serves first rule 12 response
Right to Amend Pleadings (Defendant)
Right to amend answer once no later than 21 days after serving
Note: if D forgot to include an affirmative defense in their answer can add that in
Amendment after “Right to Amend” Period has Expired
Amending party must either:
1) seek leave of the court or
2) get opposing party’s permission
Court will grant leave to amend if “justice so requires” which considers:
1) length of delay
2) prejudice to other party
3) futility of amendment
“Relation Back” Pleading Amendment after SOL has Run
1) Add a claim not originally asserted
- allowed if it’s from the same t/o (i.e., relates back)
2) To change a D
a) same t/o as original
b) Correct D knew about the case
c) Correct D knew/should have known that but for a mistake they would have been named a party originally
note: for b and c the knowledge must have come within 90 days after complaint was originally filed
Supplemental Pleadings
Set forth things that happened after the pleadings were filed
No right for this, must motion the court who will grant at their discretion
Rule 11 Signature Requirement
Applies to all papers except discovery
When lawyer/pro se party signs a document they are certifying to the best of their knowledge, after rxble inquiry that the document:
1) is not for an improper purpose
2) non-frivolous claim
3) factual contentions have evidentiary support or are likely to after further investigation
Sanctions for Violation of Rule 11 Signature Requirement and “Safe Harbor”
May be imposed against the party, the lawyer and/or their firm
Court can raise these violations “sua sponte” or a party can but before filing must give sanctioned party an opportunity to be heard
“Safe Harbor Provision” says opposing party must give party in violation 21 days to correct the problem/avoid sanctions before motioning the court
