Pleadings, Request for Orders, and Lis Pendens Flashcards
Aggressive Pleadings
asserts claims to relief (e.g., complaint or counterclaim)
Initial pleading
CC–complaint containing the specific relief sought; if seeking damages, must include ad damnum clause
GDC–Complaint, warrant in debt, warrant in detinue, distress petition, or summons for unlawful detainer.
Counterclaim
Claim made by D against one or more P(a)
Cross-claim
claim made by D against another D
Third-Party Claim
Typically a claim by D against a third-party whom D asserts is or may be liable for all or part of P’s claim
Responsive pleadings
responds to another party’s aggressive pleading
Answer
CC–generally must be filed within 21 days after service of process or entry of order overruling D’s responsive pleading, unless the court sets a different deadline
GDC–D not required to file an answer unless instructed to do so by the court.
Affirmative defenses and pleas in bar–if valid, will bar P’s claim; D must plead and prove
Demurrer
challenges sufficiency of the form, style, allegations, or appropriateness of an aggressive pleading; generally must be filed before or at the same time as other responsive pleadings
Motion to strike a pleading
challenges sufficiency of a responsive pleading
motion for a bill of particulars
seeks court order compelling a party to elaborate any pleading that does not provide adequate notice of a claim or defense
Attacks on service of process and jurisdiction
includes motion to quash service of process and motion to dismiss for failure to serve process.
Waiver–D waives any object to personal jurisdiction or defect process if the D engages in conduct related to adjudicating the merits of the case.
Lack of subject matter jurisdiction–may be challenged by motion to dismiss or, if the lack is evident from the pleading, demurrer; can be raised at any time.
Motion to object to venue
CC–must file within 21 days after service of process (unless extended by court)
GDC–must be filed with or received by the court on or before the day of trial
Motion craving over
seeks a court order compelling P to produce essential document mentioned in, but not to, the complaint
Reply
if a pleading, motion, or affirmative defense sets up new matter and requests a reply, adverse party must reply admitting or denying the new matter within 21 days
Content
must contain simple statement of facts; may plead alternative facts and theories of recovery against alternative parties arising from same transaction or occurrence; may assert inconsistent claims or defenses.
Signature, address, and other information
licensed lawyer or unrepresented party who files a pleading must sign the pleading and state her address
signature defects
may be cured within reasonable time; pleading must be stricken unless the default is promptly cured
certification
signature certifies that (i) signatory has read the document; (ii) to the best of his knowledge, formed after reasonable inquiry, the pleading is grounded in fact and is justified by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (iii) there is no improper purpose
sanctions
court must impose an appropriate sanction for any violation of the certification provision
sworn pleading
if statute requires sworn pleading or accompanying affidavit, objection on either ground must be made by motion to strike within seven days.
allegations permitted without additional proof (unless denied by a second pleading accompanied by an affidavit).
a person made, endorsed, assigned, or accepted any writing.
ownership of property or an instrumentality by any person
incorporation of coproatyion or the existence of partnership that is suing or sued
service of subsequent pleadings, motions, and other papers
must be delivered to counsel of record; must certify the date and mode of service on all counsel or record when a copy is filed with the court
untimely filed pleadings
the court, in its discretion, may allow additional time to file a pleading (but may only extend time to file a motion objecting to venue if timely request for extension is filed)
amendment of pleadings
a party may no0t amend a filed pleading without leaving of court; the court should liberally grant leave to amend
request for a court order
by (i) filing proposed order with endorsements of all counsels of record; or (ii) serving proposed order on counsel of record who have not endorsed it, together with a written notice of the date, time, and court the will consider the proposed order
Lis pendent
general notice that a suit affecting title to land is presently pending
