Pretrial Procedures

Question 1

Rules of Pleadings - Must contain

Answer 1

1. Short and plain statement of jdx and a claim, if true, entitling the P to relief.
2. A demand for relief.

Question 2

Rules of Pleadings - Inconsistent Claims

Answer 2

A pleading may make inconsistent claims or defenses.

Question 3

Responsive Pleading

Answer 3

A responding party must admit or deny all allegations in the complaint.

Question 4

Answer - Must be filed within

Answer 4

21 days - Does not include day of service. Does include weekends and holidays. If 21 falls on a non-business day, move it back one day.

Question 5

Affirmative Defenses

Answer 5

Certain affirmative defenses must be raised in a responsive pleading or will be deemed waived. These are generally the substantive defenses. (I.e., accord and satisfaction, contributory negligence, laches, etc).

Question 6

Objections - Raised in answer or motion

Answer 6

Procedural objections have to be made by answer or motion to dismiss or will be considered waived (except subject matter jdx, failure to state a claim, failure to join a party). If objecting via motion, motion must come before responsive pleading.

Question 7

Counter Claims - Generally

Answer 7

May be based on any cause of action, even if unrelated to the subject matter in the complaint.

Question 8

Compulsive Counterclaim

Answer 8

Arises out of the same transaction or occurrence as the original claim. Failure to do so waives the claim.

Question 9

Permissive Counterclaim

Answer 9

Any claim that a party has against an opposing party that does not arise out of the same transaction or occurrence at the center of the original complaint. Party is not required to assert.

Question 10

Cross Claim

Answer 10

Is a claim against a party who is not an opposing party. May be brought against any party if related to the same transaction or occurrence as the original claim.

Question 11

Amending a pleading

Answer 11

A party may amend a pleading once as a matter of course if the amendment is filed within

1. 21 Days or
2. If the pleading requires a response, within 21 days of the service of that response or 21 days after service of a motion to dismiss, strike, or for a more definitive statement.

Question 12

Amending with Consent or Leave

Answer 12

A party may amend a pleading after the deadline with consent of the party or with the court’s leave. Court will consider:

1. Length and reason for the delay
2. Prejudice to the opposing party as a result of the delay.

Question 13

Relation Back - Generally

Answer 13

Court will treat amended pleading as though it had been filed with the original pleading

Question 14

Relation Back - When it occurs

Answer 14

1. Law provides that SOL allows relation back
2. Amended claim arose out of same conduct, transaction, or occurrence as the original claim.
3. Amendment changes the name of the party if
   a. arose out of same conduct, tran, or occurrence
   b. party to be added receive notice of the filing of the original claim within 120 days service of orig. complaint.
   c. The party to be added knew that, but for a mistake, the original claim would have been asserted against him.

Question 15

Rule 11 - Signature requirement

Answer 15

Every pleading, written motion, and other paper must be signed by at least one attorney of record or a party personally if without representation

Question 16

Rule 11 - Sig Certifies

Answer 16

1. Doc is not being present of improper purpose
2. Claims, defense, and contentions are warranted by existing law or by a nonfrivilous argument.
3. Factual contentions have evidentiary support
4. Denials of factual contentions are either warranted or based on belief or a lack of information.

Question 17

Joinder of Parties and Third Party Practice

Answer 17

The goal of joining all claims in one action is to achieve a complete resolution of all disputes between parties. These do not need to be related.

Question 18

Joinder - When mandatory

Answer 18

A person who is subject to service of process and whose joinder will not deprive the court of subject matter jdx must be joined if

1. In their absence, the court cannot grant complete relief.
2. Party claims an interest relating to the subject of the action, and an adjudication without the party may impair or impede that party’s ability to protect his interests.