Review of Pleadings

Question 1

What must you know in order to draft a complaint or “claim for relief”?

Answer 1

Rule 8 requires:
(1) short and plain statement of the grounds for the court’s jurisdiction;
(2) short and plain statement of the claim showing the pleader is entitled to relief; and
(3) demand for relief sought, which may include relief in the alternative or different types of relief.
Example, p. 21

Question 2

Rule 12(b)(6):

Answer 2

failure to state a claim upon which relief may be granted
This motion may be made before any answer
It says that even if the facts alleged in the complaint are true, the plaintiff has failed to “state a claim”
Legally, the allegations don’t amount to a cause of action (“legal sufficiency”)
Alternatively, if the plaintiff fails to plead facts to support her claim, it is factually insufficient
Twombly and Iqbal: “plausibility”

Question 3

Rule 8 Pleading after Twiqbal

Answer 3

Rule 8 does not require detailed factual allegations, but it does require more than conclusions or formulaic recitation of the elements of the cause of action.
A claim has facial plausibility when the P pleads factual content that allows the court to draw the reasonable inference that the D is liable for the misconduct alleged.
The plausibility standard is not akin to a “probability requirement,” but requires more than a “sheer possibility that a D has acted unlawfully.
When a complaint pleads facts that are merely consistent with a D’s liability, it stops short of the line between possibility and plausibility to “entitlement to relief.”

Question 4

possible responses no response:

Answer 4

Do Nothing!
Note Default Rules (55) – we will cover Default in Chapter 8
Review of collateral attack on grounds of lack of jurisdiction – Baldwin v. Iowa State Traveling Men’s Assoc. (1931)“Direct” attack: challenge jurisdiction in that court
“Collateral” attack: challenge jurisdiction of that court in a subsequent suit brought to enforce or to challenge the previous judgment

Question 5

possible responses pre answer motion

Answer 5

2. Pre-Answer Motion
Rule 12 (b) allows you to raise 7 defenses by motion: (1) lack of SMJ; (2) lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief may be granted; (7) failure to join party under Rule 19.

Question 6

The Assertion of the PJ DefenseRules 12 (b), (h) and (g)

Answer 6

12(b): These defenses, including lack of PJ, can be included in the answer OR asserted by motion. If the D does make a motion under this rule, he must make it before filing the answer.
12(h): If the D does make a pre-answer motion, he must include 2-5 or he waives it.
12(g): Except for some limited exceptions, the D can only make one Rule 12 motion.

Question 7

Mechanics of Making a Motion

Answer 7

Local rules. See Local Civil Rule 7 DSC.
Parts of the motion
Motion itself
Notice of motion – notifies opposing party of hearing
Memorandum in support
Affidavits in support
If your motion relies upon facts, you must make those facts part of the record by submitting them in an affidavit or attaching exhibits such as a contract
Proposed order

Question 8

Time Limits for Pre-Answer Motion

Answer 8

12(b): A party may assert these defenses by motion; if so, the motion must be made before pleading if a responsive pleading is allowed. Remember waiver rules.
12(a)(4): Effect of a motion: if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action

Question 9

possible responses: answer

Answer 9

Rule 8(b):  
(1)  In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it.

(3) General denial not favored
(5) lack knowledge or information sufficient to form a belief about the truth of an allegation – effect of a denial
Effect of failure to deny –admitted.
Not applicable to allegation as to amount of damage
Not applicable to other allegations to which no responsive pleading is required

Question 10

pleadings allowed

Answer 10

Complaint
Answer to a complaint
Answer to a counterclaim designated as such
Answer to a crossclaim
Third-party complaint
Answer to a third-party complaint
If the court orders one, a reply to an answer

Question 11

motions and other papers

Answer 11

A request for a court order must be made by motion. The motion must:
Be in writing unless made during a hearing or trial;
State with particularity the grounds for seeking the order; and
State the relief sought.

Question 12

time limits for responsive pleading

Answer 12

Rule 12(a): Unless another time is specified:
A Defendant must serve an answer
Within 21 days after being served with the summons and complaint; or
If the def has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, (or within 90 days if the Def is foreign)
(B) and (C) 21 days to serve answer to counterclaim, crossclaim, or reply
US and its agencies and employees have 60 days
Extensions may be granted under Rule 6

Question 13

services of response and other filings

Answer 13

Governed by Rule 5 (“Serving and Filing Pleadings and Other Papers”) rather than Rule 4 (which governs service of summons and complaint)
More relaxed standard
Note Rule 5(b)(2)(E) allowing service by electronic means if parties agree