Pleadings & Parties

Question 1

How does a party withdraw a proper jury demand?

Answer 1

FRCP 38(d) provides that “a proper demand may be withdrawn only if the parties consent.” Thus, a joint motion by the plaintiff and defendant to withdraw the jury demand indicates that both parties have given the necessary consent.

Question 2

What is a complaint and what must it contain?

Answer 2

A complaint is the pleading that starts a civil lawsuit and states the basis for the plaintiff’s claim.
- It generally must contain a short and plain statement of the claim showing that the plaintiff is entitled to relief.*

• The statement of the claim need only contain enough facts for a court to plausibly infer that a claim for relief exists.
• A court may dismiss a complaint for failure to state a claim if the complaint does not satisfy this low standard.

Question 3

What are the pleading requirements for claims of fraud, mistake, or mental conditions?

Answer 3

• Malice, intent, knowledge, or other mental condition may be alleged generally
• Circumstances giving rise to fraud/mistake must be stated with particularity

Question 4

What are the pleading requirements for general and for special damages?

Answer 4

• General damages may be alleged generally
• Special damages must be specifically stated

Question 5

What are the pleading requirements for assertion and denial of conditions precedent?

Answer 5

• Assertion that conditions precedent occurred may be alleged generally
• Denial that conditions precedent occurred must be stated with particularity

Question 6

How can sanction proceedings be initiated?

Answer 6

Sanction proceedings can be initiated by:

• an opposing party’s motion – which requires that party to serve the motion on the violator but refrain from filing it with the court for 21 days to allow the violation to be corrected (ie, safe-harbor rule) or
• on the court’s own initiative (ie, sua sponte) – which requires the judge to issue an order to show cause on the violator but does not require the judge to apply the safe-harbor rule.

Question 7

When can a court impose sanctions? (What are the Rule 11(b) violations?)

Answer 7

Every pleading, motion, or other document filed must be signed by attorney (or unrepresented party), thereby certifying that:

1. document is presented for proper purpose—not to harass, cause unnecessary delay, or needlessly increase cost of litigation
2. claims, defenses & legal contentions are warranted by existing law or by non-frivolous argument for revising or establishing law
3. factual assertions have or will have evidentiary support and
4. factual denials are warranted by evidence or reasonably based on belief/lack of information

Question 8

What are pre-answer motions?

Answer 8

• Filed before the answer

Rule 12(b) motions to dismiss

• Lack of SMJ
• Lack of PJ
• improper venue
• more definite statement
• motion to strike
• etc.

Question 9

What are required disclosures?

Answer 9

Parties are required to make:
- initial disclosures,

• disclosures of expert testimony, and
• pretrial disclosures without waiting for a discovery request

Question 10

What can the court do to parties who fail to make required disclosures?

Answer 10

To underscore the importance of such disclosures, a court has wide discretion to impose sanctions on a party who fails to make required disclosures.

The most common sanction is to prohibit the use of the undisclosed information unless the nondisclosure was substantially justified or harmless.

In addition to or in lieu of this sanction, the court may:
(1) order the payment of the opposing party’s reasonable expenses, including attorney’s fees, caused by the nondisclosure

(2) inform the jury of the party’s failure to disclose and
(3) impose any other appropriate sanction (except for contempt of court).

Question 11

What are the certification requirements for class actions?

Answer 11

(1) Numerosity: class is so numerous that joinder of all members is impracticable
(2) Commonality: class shares common questions of law or fact
(3) Typicality: claims or defenses of named parties are typical of class AND
(4) Adequacy: named parties will fairly & adequately protect class’s interests

Question 12

What cases are suitable for class actions?

Answer 12

I. Separate actions would create risk of (1) inconsistent decisions regarding parties or (2) impairment of absent class members’ interests

II. Injunctive or declaratory relief is appropriate because opposing party’s actions generally applied to whole class OR

III. Common questions of law or fact predominate over individual questions & class action is superior method to resolve dispute

Question 13

Does failure to prove service of process affect the validity of the service?

Answer 13

NO.

The plaintiff must provide proof of service of process to the court when service was properly made in the U.S. and not waived by the defendant.

But a failure to prove service of process does not affect the validity of the service.

Question 14

What must an answer contain?

Answer 14

An answer must include:

(1) admissions and denials for each allegation,
(2) motions that have not already been waived,
(3) affirmative defenses (i.e., assertions that can negate or reduce liability even if every element of the opposing party’s claim is proven (e.g., the statute of frauds), and
(4) compulsory counterclaims. Otherwise, these items will be waived.

Permitted:

(1) Permissive counterclaims
(2) Cross-claims

Question 15

Rule 12 Motions

Answer 15

Motion asserting any of the following defenses:

12(b):

1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state claim upon which relief can be granted
7. Failure to join required party

12(c)

• Motion for judgment on the pleadings

12(e)

• Motion for more definite statement in pleading

12(f)

• Motion to strike insufficient defense or immaterial matter from pleading

Question 16

What is a Rule 12(b) motion to dismiss for failure to state a claim?

Answer 16

A motion to dismiss for failure to state a claim is a request that the court dismiss the suit because the nonmovant’s complaint fails to assert a legally cognizable claim OR fails to allege facts that sufficiently support the claim.

The court’s consideration of this motion is limited to the contents of the pleadings (including attached exhibits) and matters of public record.*

The court also must:

i) treat all well-pleaded facts in the complaint as true, and
ii) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.
* Court can refuse to consider affidavits submitted in support of a motion to dismiss because they are not part of the pleadings or matters of public record.*

Question 17

When considering a motion to dismiss for failure to state a claim, the court must:

Answer 17

(1) treat all well-pleaded facts in the complaint as true and
(2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.

Question 18

Compulsory Joinder of Parties (Rule 19)

Answer 18

Requirements:

1) the party must be necessary
i) court cannot afford complete relief without the party
ii) there is a danger that the party would be harmed w/out joining; OR
iii) there is a risk of an inconsistent judgment or double liability
2) there must be PJ over the new party
3) there must be SMJ over the new party (***adding the new party cannot destroy diversity)
* if adding the new party would ruin diversity, the court must decide whether the party is indispensable (dismiss the case…P can file in new forum that has PJ and SMJ over new party) or not (proceed without the party)

Factors to determine whether the new party is indispensable:

1) Extent to which judgment would prejudice the parties in the person’s absence;
2) Extent to which prejudice could be reduced or avoided by protective provisions;
3) Whether a judgment rendered would be adequate; and
4) Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder

Question 19

Joinder of Claims

Cross-claims (Rule 13)

Answer 19

P sues D1 and D2. Question re cross claim is whether D1 can sue D2?

• Yes. D1 can bring a cross-claim so long as it arises out of the same transaction or occurrence as the plaintiff’s original claim.
• must have SMJ over the cross-claim (FQ, DQ, or Supp JX)

Question 20

Impleader (Rule 14)

Answer 20

Where the defendant tries to pull a third party into the lawsuit.

i) Impleaded claim must relate to the original claim between the plaintiff and the defendant
ii) Must have SMJ over the impleaded claim (federal question, diversity, or supplemental)

Question 21

Intervention (Rule 24)

Answer 21

A nonparty is seeking to join the lawsuit.

1) Intervention as of right if:
a) Nonparty has an interest in the subject matter of the action;
b) The action may affect their interest; and
c) The nonparty’s interest is not adequately represented by the existing parties
2) Permissive intervention allowed if:
a) Nonparty is granted a conditional right under federal statute; or
b) Nonparty has a claim or defense related to the original cause of action

Question 22

Service of Process Requirements

Answer 22

A plaintiff must provide the defendant with adequate notice of a lawsuit through service of process that complies with procedural rules and due process.

In a federal-court action, a defendant-individual in the U.S. may be served by any of the following methods:

1) Personal service – process is delivered in person to the defendant
2) Substituted service – process is delivered to the defendant’s agent or left at the defendant’s dwelling with a resident of suitable age and discretion
3) State procedural rules – process is served pursuant to the rules of the state where the court sits or service is attempted (as seen here)

However, due process requires that service reasonably apprise the defendant of the pending suit so that the defendant may appear and present objections.

This means that the plaintiff must notify the defendant of the lawsuit by the most reasonable means under the circumstances.

• Example: Man hadn’t been to property within the city in many years and lived in the neighboring state. City knew the man’s identity and was able to locate his address from the neighboring state’s tax rolls, so personal service was the most reasonable means to notify him of the lawsuit under the circumstances.

Question 23

Is a compulsory counterclaim waived if the action is dismissed before the D files an anwers?

Answer 23

NO.

A compulsory counterclaim must be asserted in the defendant’s answer or the counterclaim is waived.

This is true unless the action is dismissed (i.e., D files motion to dismiss for lack of PJ and courts grants motion) before the defendant files an answer, in which case the compulsory counterclaim is not waived and can be raised in a future lawsuit.

Question 24

Does a parties failure to deny allegations regarding damages in an answer deem them admitted?

Answer 24

NO.

An admission or a failure to deny an allegation generally results in the allegation being admitted and conclusively established.

However, one exception to this rule is for allegations related to the amount of damages sought by the plaintiff.

• The failure to deny these allegations in an answer does not deem them admitted and conclusively established.

Question 25

A defendant may deny allegations by:

Answer 25

An answer must include admissions or denials of each allegation in the complaint._***_

A defendant may deny the allegations by:

1) General denial – a denial of all of the allegations in the complaint, including the grounds for the court’s jurisdiction
2) Specific denial – a denial of a particular allegation that is made by denying the allegation, pleading insufficient knowledge to admit or deny it, or admitting part of the allegation and denying or pleading insufficient knowledge to the rest of it

_***_In addition to admissions or denials, the defendant’s answer must include motions that have not already been waived, affirmative defenses (e.g., contributory negligence), and compulsory counterclaims.

Question 26

Lack of personal jurisdiction is a defense that must be raised (1) in a pre-answer motion or (2) if no pre-answer motion is made, in the original answer or an answer amended as a matter of course (i.e., without the court’s permission). Otherwise, this defense is waived.

Under FRCP 15, an answer can be amended once as a matter of course within 21 days:

i) after serving the answer, if no responsive pleading (e.g., reply) is required or
ii) if a responsive pleading is required, after being served with a responsive pleading or motion under FRCP 12(b), (e), or (f)—whichever occurs first.

Question 27

Sanctions for noncompliance with pretrial conference or order

Rule 16 (visual)

Answer 27

Question 28

A federal court may impose reasonable sanctions on any attorney or party who:

Answer 28

A federal court may impose reasonable sanctions on any attorney or party who:

(1) failed to attend a pretrial conference,
(2) did not participate in good faith, or was substantially unprepared to participate, in the conference, or
(3) failed to obey a pretrial order.

*In addition, the court must order a noncompliant party and/or attorney to pay the other party’s reasonable expenses, including attorney’s fees, unless (1) the noncompliance was substantially justified or (2) the payment would be unjust.

Question 29

Types of Pleadings

Answer 29

1. Complaint
   * Plaintiff’s assertion of cause of action, court’s jurisdiction & demand for relief
2. Answer
   * Response to complaint, counterclaim, crossclaim, or third-party complaint that asserts admissions, denials, affirmative defenses & other claims
3. Third-party complaint
   * Party’s assertion that nonparty is liable for damages party may owe in original suit based on legal theory (eg, indemnity, contribution)
4. Reply
   * Response to answer (only required if court ordered)

Question 30

When must a plaintiff reply to a defendant’s answer?

Answer 30

Only required if court orders.

If the court orders a reply, then the plaintiff must respond to allegations in the defendant’s answer as directed.

Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff.

If no reply is ordered, then allegations in the answer are deemed denied by the plaintiff.

Question 31

Impleader

When can the plaintiff assert her own third-party claim against the third-party defendant?

Answer 31

Impleader (i.e., third-party practice) allows a defendant to add a nonparty (i.e., third-party defendant) to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff’s claim.

When this occurs, the plaintiff may assert his/her own third-party claim against the third-party defendant if that claim:

i) arises out of the same transaction or occurrence that is the subject matter of the plaintiff’s claim against the defendant in the original complaint AND
ii) satisfies original subject-matter jurisdiction on its own.

Question 32

What are the three ways a plaintiff can properly servce a defendant who is an individual located in the U.S.?

Answer 32

A defendant must receive notice of a lawsuit through service of process—i.e., delivery of the summons and complaint.

Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United States by:

i) following the rules of the state where the court sits or where service is made
ii) having process delivered to the defendant personally (or to an agent authorized to receive process) or
iii) having process delivered to the defendant’s dwelling and left with a resident of suitable age and discretion—i.e., old enough to possess the limited capacity necessary to comprehend the situation.

Question 34

Permissive Joinder

Answer 34

Under the permissive joinder rule (FRCP 20), multiple persons may be joined as plaintiffs or defendants in the same suit if:

1) the claims asserted by or against the joined parties arise out of the same transaction, occurrence, or series of transactions or occurrences AND
2) the action will involve a common question of law or fact among all joined parties.

Question 35

Representations to the court

Answer 35

Every pleading, motion, or other document filed must be signed by attorney (or unrepresented party), thereby certifying that:

1) document is presented for proper purpose—not to harass, cause unnecessary delay, or needlessly increase cost of litigation
2) claims, defenses & legal contentions are warranted by existing law or by nonfrivolous argument for revising or establishing law
3) factual assertions have or will have evidentiary support AND
4) factual denials are warranted by evidence or reasonably based on belief/lack of information

Question 36

Can a court impose sanctions on a law firm, attorney, or party for violating one of the provisions of FRE 11(b)?

Answer 36

YES.

A court can impose sanctions, including an order to pay the opposing party’s attorney’s fees, on a law firm (default), attorney, or party for violating one of the provisions of FRCP 11(b).

Sanction proceedings can be initiated in *two ways:*

1) by a party’s motion – which requires the party to serve the motion on the alleged violator but refrain from filing it for 21 days after serving it to allow any violation to be corrected (i.e., safe-harbor rule) OR
2) on the court’s own initiative (i.e., sua sponte) – which requires the judge to issue an order to show cause to the alleged violator.

_***However, a court cannot impose a monetary sanction under Rule 11 on its own initiative without issuing a show-cause order.***_

Question 37

What does impleader allow?

Answer 37

Impleader (i.e., third-party practice) allows a defendant to add a nonparty to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff’s claim.

This means that the nonparty would reimburse the defendant for any damages paid to the plaintiff.

To initiate impleader, the defendant must file a third-party complaint:

(1) within 14 days of serving his/her original answer OR
(2) after this deadline with the court’s leave (i.e., permission).

A third-party claim also must fall within the court’s subject-matter jurisdiction—i.e., a federal court’s authority to hear a dispute.

Original subject-matter jurisdiction exists when a dispute satisfies either:

1) federal-question jurisdiction – the dispute arises under the U.S. Constitution, a federal treaty, or a federal law (not seen here) or
2) diversity jurisdiction – the opposing parties are citizens of different states and the amount in controversy exceeds $75,000.

***If the plaintiff’s original diversity claim and the defendan’s contribution claim against the 3rd party share a common nucleus of operative facts, the court can exercise supplemental jurisdiction over the defendant’s claim against the 3rd party.

Question 38

Relation-back Doctrine

Answer 38

An amendment that changes a defendant “relates back” only if the statute of limitations allows OR when the following requirements are met:

1) the amendment concerns the same transaction or occurrence as the original complaint
2) the new party received notice of the suit within 90 days after the original complaint was filed AND
3) the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party’s identity.

Question 39

Is service of process procedural or substantive?

Answer 39

Service of process is considered procedural, rather than substantive.

With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, then the federal law will be applied, even if a state rule or statute is in conflict.

Question 40

When may persons be joined in one action as defendants?

Answer 40

Persons may be joined in one action as defendants if

(i) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(ii) any question of law or fact common to all defendants will arise in the action.