Pleadings - Part B Flashcards
What is a third party claim?
Claims by a defendant against a new third-party
How can subsequent pleadings be served?
After initial service of process the defendants may file a responsive pleading with the court and serve it by mailing, delivering, faxing, or emailing (with consent)
What is an aggressive pleading?
Asserts a claim for relief (ie complaint, counterclaim, cross-claim, third-party claim)
What is a defensive or responsive pleading?
Responds to an aggressive pleading (ie answer, plea of the statute of limitations, plea of res judicata, plea of payment)
What happens if a responsive pleading asserts a new matter and expressly request a reply?
Other side must reply within 21 days denying or admitting the new matter, otherwise the new matters are taken as admitted
How long should responsive pleadings be filed within?
21 days of service, unless the deadline is extended by voluntary acceptance of service
What is a motion for a bill of particulars?
It is a responsive pleading that asks the court to compel the other side to provide more information about the basis of the pleading
What is filing a motion for particulars within 21 days considered?
A timely response, and will prevent a default judgment
What is a demurrer? [know this exact definition]
It is a responsive pleading that contends that even if all of the facts set forth in the aggressive pleading are excepted as true it still fails to state a claim as a matter of law
Better Definition [?]: A responsive pleading that contends that the original pleading does not state a cause of action or fails to state facts upon which relief may be granted
What does a demurring party admit?
Nothing at all. It admits to nothing. A demurring party is kind of stating a hypothetical. They are basically saying “EVEN IF all these facts were true, the plaintiff has not stated a legally sufficient claim”
What is a demurrer similar to?
A motion to dismiss for failure to state a claim (12b6 motion)
What do demurs apply to?
They only apply to aggressive pleadings
When a demurrer is granted, what must an amended complaint include?
The amended complaint must include or at least incorporate all of the allegations contained in the initial complaint that is to be amended
What is a motion craving oyer?
Made to required the document (ie contract or promissory note) being sued on to be produced at the pleading stage
What happens to the document that is requested during the motion craving oyer?
Document becomes a matter of record and a part of the plaintiffs complaint to be considered in ruling on a demurrer
What is a motion to strike a Pleading?
Challenges the sufficiency of a defensive pleading (such as an answer, plea of the SOL, or plea of payment)
What is a motion to strike compared to a demurrer?
Raises the same issue as a demurrer but called something different. Is used for defensive pleadings
What is a motion to set matter for hearing on Bill and answer?
Plaintiff asks the court to consider whether as a matter of law the answer is sufficient to make a defense
What does a motion to set matter for hearing on bill and answer apply to?
Applies only to equity claims
What is an affirmative defense and plea in bar?
Defenses that if valid will bar the plaintiffs claim
