Pretrial Procedure - Responding to Complaints

Question 1

What can D do in response to a complaint?

Answer 1

1. An answer
   
   • D admit or deny any allegations
     
     • failure to do so, it is deemed admitted
   • list any defenses they have
     
     • most cases, failure to bring up a defense will constitute a waiver
     • Not forfeited are:
       
       • failure to state a claim upon which relief can be grante
       • failure to join a necessary pty
       • lack of SMJ
2. More Definite Statement
   
   • complaint or answer is so vague
3. Motion to Strike
   
   • where there is redundant, immaterial or scandalous matter
4. Motion to Dismiss
   
   • seeks the dismissal of a claim
   • filed by any pty defending a claim

Question 2

When do you have to respond to a complaint “timing”?

Answer 2

• Initial Response
  
  • Process Actually Served
    
    • 21 days
  • Service of Proccess Waived
    
    • 60 days
• Secondary Response
  
  • this is when your initial response is denied
  • you have 14 days from the date of denial

Question 3

What are Rule 11 Obligations?

Answer 3

• Imposes certain standards of conduct
  
  • Good Faith - submission not for any improper purpose to harrass, delay or increase cost of litigation
  • Good Facts - certify the submission is based on or likely to have evidenary support throughout the lawsuit
  • Good Law - submission based on existing law or a non-frivolous argument for a change in the law
• Rule 11 does not apply to Discovery (own rules)

Question 4

How are Rule 11 sanctions sought?

Answer 4

• A pty
  
  • Draft a motion
  • serve it on the other side
  • do not file it
  • “safe harbor period” - other side has 21 days to stick with their current or change
  • then file after the 21 days

Question 5

What is the purpose of the Rule 11 sanctions?

Answer 5

To deter repetition of such misconduct by anyone similarly situated

• ct may order monetary/non-monetary action

Question 6

Who is subject to sanactions?

Answer 6

• any person or entity that has committed a Rule 11 violation
• any person or entity who is responsible for committing a Rule 11 violation
• atty law firms are almost always joint & severally liable

Question 7

What is provisionary relief?

Answer 7

Relief that is sought at the outset of a lawsuit:

• Preliminary Injunction - PI
• Temporary Restraining Order - TRO

You want this b/c it might be too late at the end of the lawsuit.

Question 8

What are preliminary injuctions?

Answer 8

• Available only upon notice to the adverse pty
• Must satisfy these elements:
  
  • Likelihood of success on ther merits
    
    • show that @ the outset you will win
  • Irreparable harm
    
    • harm you will suffer if no PI granted cannot be undone
  • Balance of Hardships
    
    • Whether the harm to P if PI denied is greater than harm to D if PI granted
  • Public Interest
    
    • not issued if injurous to the public
  • Payment of Security
    
    • P has to put a security deposit with the ct into escrow for the amount of harm likely suffered by D if the PI is wrongfully entered
• Last throught the duration of the lawsuit

Question 9

What are temporary restraining orders “TRO”?

Answer 9

• Similar to a PI b/c uses same 5 elements
  
  • Likelihood of success on the merits
  • Irreparable Harm
  • Balance of Hardships
  • Public Interest
  • Security Deposit
• Different from a PI in:
  
  • Timing
    
    • only last for 14 days
    • can get extension for another 14 days but only if you show good cause
  • Notice
    
    • can be granted ex-parte
      
      • must show:
        
        • tried to notify the opposing pty
        • was unable to do so AND
        • need a TRO to avoid immediate irreparable harm