Pretrial procedures Flashcards
Contents of the complaint (rule 8) - 3 items
- grounds for subject-matter jurisdiction
- statement of facts sufficient to show P is entitled to relief
- plausible, not just possible
- fraud must be pled w particularity - demand for judgment and the relief sought
Amending the pleadings (rule 15)
Complaint can be amended once, w/in 21 days of service or motion to dismiss. Same with the answer. This is a matter of right - no permission needed
Can also amend with permission - either permission of opposing party, or permission of court (after considering prejudice and reason - usually granted)
Amendments and statutes of limitations - the “relate back” rule
Adding a new claim - for SoL purposes, the claim is considered filed on the same date as the original complaint (“relates back”) IF it arises from same transaction or occurrence
Adding new parties - relate back if all three:
- same transaction or occurrence
- new party knew of suit soon enough to not be prejudiced
- new party should have expected to be named but for mistake in identity
Service of process (rule 4)
Must serve BOTH COMPLAINT AND SUMMONS
Must serve w/in 90 days of filing - otherwise dismiss, unless good cause
Anyone at least 18 and not a party can serve
Two options for service:
- serve in manner prescribed by state court, either in filing or service state
- adherent to rule 4. for natural persons, that’s personal/abode/agent/waiver service
Service and Personal Jurisdiction
Service of process “activates” PJ. If court has power to assert PJ over a party, that power becomes active at the moment of service.
If new parties are added, must serve again, or PJ doesn’t activate for them. Don’t need to re-serve for new claims against same parties
Service and due process
DFT is entitled to notice of the claims against them and an opportunity to respond. Service basically does this.
Test: “reasonably calculated to inform the DFT of the action”.
- service can still raise constitutional issues if it isn’t reasonably calc’d
- lack of service can dodge constitutional issues if PLN takes steps that ARE
Responding to complaints - the Answer
Answer must admit or deny each allegation specifically. Anything not denied is deemed admitted.
Defenses: no limit on how many. Generally, defenses not included in the answer are waived. Exceptions - failure to state a claim - failure to join necessary party - lack of SMJ
Motion for a more definite statement
Court can order a pleading to be clarified if it is so vague that responding party can’t reasonably prep
Motion to strike
Court can on its own or by motion, order material stricken if the complaint/answer contains redundant, immaterial, scandalous info
Motion to dismiss
yep
Timing of responses
DFT has 21 days to respond with an above pretrial motion or answer. 60 days if formal service waived
If pretrial motion is denied, 14 days to file an Answer
Ethical standard of conduct for submissions
Att’ys and unrep’d parties certify that, after reasonable inquiry, all documents are based on
- good faith
- good facts
- good law
Rule 11 Sanctions
Complaining party must draft motion for sanctions and serve on offending party. 21 days to CURE VIOLATION - safe harbor provision
Sanctions can be monetary or nonmonetary. Any party can be sanctioned - however, represented parties can’t be sanctioned for bad law
Rule 11 doesn’t apply in discovery, that has its own rules
Provisional relief
In general, PLN files suit for injunctive relief, but can’t litigate fast enough to get relief before irreversible harm. Two types here:
- preliminary injunction PI
- temporary restraining order TRO
Preliminary Injunction - 5 elements
First need notice to adverse party. Then 5 element test:
- likelihood of success on the merits
- irreparable harm absent PI
- balance of hardships favors moving party
- public interest (not injurious)
- payment of security into the court (enough to compensate D for losses if D wins)
