Pretrial Proc's - Pleadings

Question 1

The complaint is the first pleading filed by the plaintiff – it commences the lawsuit. A complaint MUST state:

Answer 1

Grounds for subject matter jurisdiction;

A short statement of the claim that shows the pleader is entitled to relief (note: statement is insufficient if it alleges merely conclusory statements that do not rise above the level of speculation.;

AND

A demand for judgment for relief.

Question 2

In what cases is there a heightened pleading requirement?

Answer 2

“[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”

ie, must plead “special matters” in FRCP lingo

Generally this heightened pleading requirement is met when the complaint alleges the who, what, when, where, and how of the fraudulent representation.

Question 3

After the complaint is filed, the defendant may

Answer 3

file a pre-answer motion or respond with the answer.

Question 4

The pre-answer motion may raise any or all of the following defenses:

Answer 4

Lack of subject matter jurisdiction;

Lack of personal jurisdiction;

Improper venue;

Insufficiency of process;

Insufficiency of service of process;

Failure to state a claim upon which relief can be granted;

AND/OR

Failure to join an indispensable party under compulsory joinder.

Question 5

The answer MUST state:

Answer 5

A specific denial or admission of each allegation in the complaint OR a general denial of all allegations with specific admissions if necessary;

AND

Any affirmative defenses that the respondent has, or that defense is deemed waived.

Note: party may amend pleading as of right within 21 days and save the affirmative defenses, or if court grants leave to amend, or if other party consents

Question 6

A failure to deny an allegation constitutes

Answer 6

an admission

Question 7

The timing of the answer depends on

Answer 7

whether a pre-answer motion is made:

If no pre-answer motion is made, a defendant who is formally served must present an answer within 21 days after service.

If a pre-answer motion is made, the responsive pleading must be served within
14 days after the court’s denial or postponement of the motion.

Question 8

A party may amend a pleading

Answer 8

by right or by leave of the court.

Question 9

Amending by right

Answer 9

A party may amend a pleading once as of right within 21 days if no responsive pleading is required.

If a responsive pleading is required, the party may amend within 21 days of whichever event is earlier:

The service of the responsive pleading;

OR

Being served with a Rule 12(b) motion.

Question 10

A party waives these defenses by failing to include in a responsive pleading (eg, an answer) or in an amendment as a matter of course (which is allowed within 21 days after answer)

Answer 10

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

NOTE; unlike a statute of limitations affirmative defense, which can be sought with party’s written sonsent or the court’s leave (under rule 15), the above defenses must be brought up in a motion right after the complaint, or in the answer to the complaint, or by amendment within 21 days as a matter of right. Otherwise, they are WAIVED.

Question 11

Amending By Leave of the Court.

Answer 11

The court can permit an amendment to a pleading when justice so requires. Generally, a court will permit a proposed amendment if the proposed amendment:

Is not subject to dismissal under Rule 12(b);

AND

Would NOT result in undue prejudice to the opposing party.

Note: The motion is directed to the court’s discretion, and the rule recites that “[t]he court should freely give leave when justice so requires.”

Question 12

Relation Back Doctrine.

Answer 12

The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading.

This can be important for statute of limitation purposes.

Question 13

If the pleading is amended to include a new claim or defense, the amendment will relate

Answer 13

back to the date of the original pleading if the new claim or defense arose out of the same transaction or occurrence set out in the original pleading.

Question 14

If the pleading is amended to include a new party or changes the name of a party, the amendment will relate back to the date of the original pleading if:

Answer 14

It asserts a claim that arose out of the same transaction or occurrence set out in the original pleading;

The party to be brought in by amendment receives notice of the action within 90 days after the filing of the original complaint such that he will not be prejudiced in defending his case on the merits;

AND

The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.

Question 15

The federal rule explicitly states that relation back will be permitted when “the law that provides the applicable statute of limitations

Answer 15

allows relation back.” FRCP 15(c)(1)(A). However, the federal rule does not state the converse, and courts consistently hold that “less restrictive state relation-back rules will displace federal relation-back rules, but more restrictive state relation-back rules will not.”

So federal R trumps when fed says WILL relate back but state says WILL NOT relate back
State trumps fed when state says WILL and fed says WILL NOT
They err on the side of relating back in both cases.

Question 16

Pleadings are closed

Answer 16

after the answer is filed

Question 17

A motion for judgment on the pleadings seeks

Answer 17

a disposition on the merits when the material facts are not in dispute and the movant is entitled to judgment as a matter of law.

Question 18

When must you demand jury trial?

Answer 18

in your complaint or amended complaint, or within 14 days after the last pleading (so if answer is filed with no counterclaim, then you have 14 days after answer)

Question 19

A sues B; B thinks A partially responsible in contributory negligence state; what is best procedure for how to respond?

Answer 19

File an ansawer raising the affirmative defense of contributory negligence AND assert a counterclaim for negligence, seeking damages for the driver’s injuries

Question 20

Provisional remedies include a

Answer 20

ttachment, garnishment, replevin, receivership, notice of pendency, and temporary injunctions such as temporary restraining orders or preliminary injunctions.

Question 21

in assessing the constitutionality of provisional remedies, consideration ought to be given to the balance of three factors:

Answer 21

(1) “the private interest that will be affected”; (2) “the risk of erroneous deprivation” of property presented by the attachment, as well as “the probable value of additional or alternative safeguards”; and (3) the “interest of the party seeking” the attachment of property as well as “any ancillary interest the government may have.”

Note: the Due Process clauses of the Constitution apply to provisional remedies, because they cause deprivation of liberty or property. However, provisional remedies must have fewer procedural safeguards that final judgments do. Otherwise, they would be pointless.

Question 22

the Due Process Clause applies only to state and not to private action. However, the seizure of property t hrough the use of a provisional remedy is

Answer 22

an act of the government, not of an individual party, and so is subject to constitutional regulation.

Question 23

Three additional defenses are preserved even if not raised until trial:

Answer 23

Failure to State a Claim for Relief (Rule 12(b)(6));

Failure to State a Legal Defense to a Claim (Rule 12(f));

and

Failure to Join and Indispensable Party (Rule 19).

These defects can be raised by answer or pre-answer motion to dismiss, or later, by motion for judgment on the pleadings, and can also be asserted for the first time at trial. (See FRCP Rule 12(h)(2).)

However, these defenses are preserved only through trial on the merits and cannot be raised for the first time by post-trial motion or on appeal.

Question 24

When must you answer complaint?

Answer 24

within 21 days normally

60 days if served by mail with waiver

90 if served out of the country

Question 25

While generally every defense should be in the answer, these 7 can be raised by motion

Answer 25

(1) lack of subject matter jurisdiction;

(2) lack of personal jurisdiction;
(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19 (Required Joinder of Parties).

Question 26

After the pleadings are closed – but early enough not to delay trial – a party may move for

Answer 26

judgment on the pleadings.

Standard of review on this motion = To avoid dismissal, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”

the court must assume the truthfulness of the material facts alleged in the complaint and all inferences reasonably drawn from these facts must be construed in favor of the responding party.

Question 27

Motion for a more definite statement

Answer 27

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.

The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired.

If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

Question 28

the court may strike from a pleading

Answer 28

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

this is rarely exercises, and if any doubt, resolved in favor of allowing the pleading in.

Question 29

P must be the real party in interest, except when

Answer 29

the interest party is a minor or incompetent (then requires guardian, conservator, etc

Question 30

As to amendments, what is the rule?

Answer 30

Of right: Under Rule 15, a party (call that party “A,” and the opposing party “B”) may amend his pleading once as a matter of right in either of these two situations:
○ (1) within 21 days of when A served his original pleading
(see Rule 15(a)(1)(A)) or,
○ (2) if A’s pleading was one that required a responsive
pleading by B, within 21 days of when B either (i) served that responsive pleading or (ii) made a motion under Rule 12(b), (e), or (f) (with the 21 days starting on whichever of two events mentioned in (i) and (ii) happened earlier) (see Rule 15(a)(1)(B)).

Question 31

Example of Plaintiff’s ability to amend pleadings

Answer 31

P serves her complaint on D on April 1. Whether or not D has answered, P has until 21 days later (April 22) to amend of right. Now, suppose D makes no motion against the complaint and answers on May 1. P now has until 21 days later (May 22) to amend of right. Now, suppose that instead of answering on May 1, D does nothing until he makes a Rule 12(b), (e), or (f) motion against the complaint on May 5; then, P’s time to amend of right will end 21 days after May 5 (i.e., May 26). And May 26 is the deadline regardless of whether (i) D hasn’t yet answered by May 26 or (ii) D answers sometime between May 5 and 26 (since the earlier of D’s answer and D’s motion against the complaint triggers P’s 21-period in which to amend).

Question 32

Who has right to jury trial

Answer 32

BOTH PARTIES

7t amendment guarantees this.

If either party demands it, there will be a jury, EVEN IF the other side doesn’t want one

Question 33

What does “last pleading directed at the issue” mean?

Answer 33

P files complaint; D answers with no counterclaim; D’s answer is the last pleading directed at the issue

Question 34

Requirements for requesting a jury trial

Answer 34

Must be requested in your complaint

OR

within 14 days of the last pleading directed at the issue

THEN MUST FILE DEMAND WITH COURT WITHIN REASONABLE TIME

Example: P sues D in a diversity action seeking contract damages. Assume that although P has the right to include a demand for jury trial in the complaint, P does not do so. D then serves an answer (with no counterclaim) on P on May 1. Since the answer is the “last pleading directed to the issue,” neither P nor D may serve a demand for jury trial later than May 14 (and the right is deemed waived once that deadline passes). If either P or D serves a demand for jury trial on the other on or before May 14, that party must then file the demand with the court “within a reasonable time” after the demand was served on the adversary.

Question 35

SIZE OF JURY requirements

Answer 35

between 6 and 12

everyone must participate (no “alternate” jurors who hear case)

A federal civil jury must begin with between 6 and 12 members. Rule 48(a). (It is up to the judge, or to the rules of the district, to decide what number between 6 and 12 is to be used in a particular case.) Each of the seated jurors must participate in the verdict unless excused by the judge for “good cause.” Rule 48(a) and Rule 47(c). In other words, in the federal system there are no “alternate” jurors (jurors who hear the case but don’t deliberate unless a non-alternate juror is excused).

Question 36

Unanimity and minimum size at time of verdict:

Answer 36

Unless parties stipulate otherwise, must be UNANIMOUS

must be at least 6 jurors at time of verdict, unless parties agree otherwise

Unless the parties otherwise stipulate, the verdict must be unanimous. Rule 48(b). Furthermore, unless the parties stipulate, the verdict must be returned by a jury of at least six members. Id. (Otherwise, the jury is deemed “hung,” and there must be a retrial.)
Example: Assume that P and D make no stipulations about unanimity or about the minimum number of jurors that must join in the verdict. Assume that in the particular case, the judge empanels a seven-member jury, and the case is tried. If the jurors split 6-1 in favor of P (and cannot resolve the dispute), the judge must declare a mistrial. Alternatively, suppose that in the middle of trial, two jurors are dismissed for illness. Even if the remaining jurors agree unanimously (5-0) for P, the judge must, similarly, declare a mistrial unless both P and D agree to accept this five-juror verdict.

Question 37

Challenging prospective jurors, what are two types?

Answer 37

Peremptory and for cause

For cause reasons = impartial OR financial interest in one of the parties to litigation (such as owning stock in parties’ company)

Question 38

Peremptory challenges: what are they? how many do you get?

Answer 38

Three challenges to jurors and you don’t have to give a reason

In a case involving multiple plaintiffs or multiple defendants, the judge has discretion to treat all those on a given side as a single party (but may instead grant each of the multiple parties on a side her own set of three challenges).

Question 39

Peremptory challenges: what if used based on race or gender

Answer 39

NOT ALLOWED

the most-often tested issue regarding peremptory challenges is that as a constitutional matter, a civil litigant may not exercise her peremptory challenges for the purpose of excluding jurors on account of their race or gender.
○ Mechanics: You might see a question involving the mechanics by which one party contends that the other is violating the “no race- or gender-based peremptory challenges” principle. The following Example shows how these mechanics work. The Example assumes that it’s P, a
woman, who is claiming that D, a man charged with gender discrimination in employment, is using his peremptory challenges to eliminate women from the jury.
Example: (1) After D has used peremptory challenges on at least two women (enough to arguably constitute a “pattern” of gender-based strikes), P can object to this pattern. (2) It’s then up to D to state a “facially neutral” reason for the strikes (i.e., a reason based on something other than the fact that the jurors are women; a facially-neutral, though weak, explanation might be, “It wasn’t because Juror X was a woman that I challenged her; it’s that I didn’t like the way she refused to look me in the eye”). (3) The burden then shifts to P to demonstrate that D’s asserted reason is “pretextual,” i.e., not the real reason (and that the real reason is indeed D’s intent to make gender-based strikes). P’s objection will be sustained if and only if P can make this showing of pretext by a preponderance of the evidence.

Question 40

NOTE: If P asks for jury trial and there is also an issue that will be decided by the judge, can judge decide his issue first?

Answer 40

NO. JURY TRIAL FIRST. 7TH AMENDMENT IN THIS BISH

Because of the rules of “former adjudication” (claim preclusion and collateral estoppel), safeguarding the plaintiff’s practical ability to have the legal claim heard by a jury generally requires that any issue of law or fact that is common to the legal and equitable claims be tried first to (and decided by) the jury—only then may the judge decide the equitable claims.