V. Pleadings

Question 1

Complaint

Answer 1

Must show SMJ, short and plain statement of claim showing entitled to relief and demand a judgment.

Must also show face alleging the basis of venue

Question 2

Professional Malpractice Claims

Answer 2

• Professional malpractice–not med mal
• You must mproivde an affidavit with specificty alleging at least one act/omission and the facts on which the claim is based
• Failure to file, D may motion to dismiss. Generally cannot amend or refile unless court finds P had the affidavit in time but failed to file due ot mistake
• Deffective affidavit: cases will be dismissed if defendant reaises it. Get 30 days to cure
• Delay in filing affidavit when sofl about to run: may be excused if sofl will run within 10 days of filing; p alleges that because of the time constraints an expert could not be prepared AND c) p attorny files with the complaint that law firm not retained more than 90 days before expiration
  
  • if met, get 45 days

Question 3

General denial

Answer 3

denies each and every allegation. May run into ethical issues

if improperly used, may be used as an admissions since it does not meet allegations of complaint

Question 4

Verified Pleadings

Answer 4

pleadings made under oath. Rare

used in divorce garnishment and other areas

usually important on sum judgment

Question 5

State Section 11

Answer 5

Applies only to pleadings

attorney must certify that they read docs and not used for delay

nothing about sanctions

if not signed could strike or ask to amend

Question 6

Abusive litigation

Answer 6

may cover reasonable costs of ligitaiton including atty fees if other side positon was completely absent justificable issue of law or fact such that a reasonable person could believe the court could not accept it.

Sanctions against party or lawyer or both.

Can be brought during or w/in 45 days of lit.

Can recover fees incurred in seeking sanctions

Question 7

Timing of Defensive Pleading

Answer 7

FR 20 days

CPA 30 days

AofRisk and Contrib Neg need not be pleaded as affirm defenses

Question 8

Timing Rule 12 motions

Answer 8

does not suspend the time in which to file an answer

Question 9

Timing responses to counter or cross claims

Answer 9

unlike fed court, need not occur unless court orders

Question 10

Effect of pre-asnwer motion on discovery

Answer 10

if files a preanswer motion to dismiss, discoery stayed 90 days after filling of motion or until court rules on motion, whichever is sooner

discovery extended equal to duration of stay

Question 11

Amdendment of Right

Answer 11

any party has right to amend before pretrial conference order is entered. No order, right ot start of trial. Much more liberal than fed.

Question 12

Amendment changing a a party

Answer 12

• changing a defendant after sofl runs will relate back if:
  
  • concerns same conduct, transaction or occurrence as original
  • new party received notice within proper time period so will not be prejudiced in mainting a defense
  • new party knew or should have knonw but for a mistake that they would be named originally
• Proper Time: period provided by law for commencing the action against him. Must have learned within statute of limitations. Narrower than FRCP

Question 13

Responses to amendment pleading

Answer 13

not required to respond unless required to do so.

In fed court, must do so within 10 days or time remaining for original response

Question 14

Capacity to sue and be sued

Answer 14

• Minors or incompetents often have a rep. May bring or defend action with rep
• With no rep
  
  • bring suit and style by his next of friend or guardian ad litem
  • state on notice that must protect w. guardian ad litem
• to recover funds on minors behalf, next friends must post a bond