Pretrial Procedures Flashcards
What requirements are contained in FRCP Rule 11?
Rule 11 requires all attorneys or parties representing themselves to sign all pleadings, written motions, and papers, certifying that the paper is proper, the legal contentions are warranted by law, and the factual contentions have evidentiary support.
What type of pleading do federal courts use?
Notice pleadings. Typically only requires a stating of enough facts to support a plausible claim. The goal is to provide a reasonable notice of the nature and scope of the claims being asserted.
What type of pleadings do CA courts use?
Fact pleadings or Code pleadings. These are more specific than notice pleadings. Parties must plead ultimate facts to support each element of the CoA.
What must a complaint include in Federal court?
(1) Identification of parties
(2) Statement of proper smj jdx
(3) Notice pleading (but, fraud, mistake, and special damages must be pled with specificity).
(4) Demand for judgment
(5) Signature
What must a complaint include in CA court?
(1) Identification of parties
(2) Fact pleading, specific
(3) Demand for judgment
(4) signature
What does Rule 12 say?
Rule 12 requires a defendant to respond to either filing (1) a pre-answer motion, or (2) an answer within 21 days (in fed, within 60-90 days if service waived) or 30 days (in CA)
What types of pre-answer motions are available?
Motion for a more definite Answer
Motion to Strike
Motion to Dismiss
What happens if a pre-answer motion is denied?
The party has 14 days to file an answer.
What defenses are available in Rule 12(b)?
Defenses that must be raised in first response:
(1) Lack of PJ
(2) Improper venue
(3) insufficient process (something is wrong with the papers)
(4) insufficient service of process (papers not served properly)
Can be raised after the first response:
(1) Lack of SMJ (anytime)
(2) Failure to state a claim (anytime til trial is concluded)
(3) Failure to join an indispensable party (anytime til trial is concluded)
In California, what’s a response to a complaint?
Typically, a general or special demurrer
What’s the difference between a special and general demurrer?
A special demurrer is only for cases classified as unlimited. Special demurrers can be based on: uncertain pleadings, an unascertained legal theory, lack of capacity to sue, existence of another case between parties on the same CoA, Defect or misjoinder
A general demurrer may be based on: pleading failing to state facts sufficient to constitute a CoA, or a lack of proper SMJ
What is a motion to quash and where can it be used?
A motion to quash service of summons is done by a special appearance and must be made separation from the answer. A motion to quash must be made before or during the filing of a demurrer or motion to strike or an answer, or the following defenses are deemed waived:
(1) Lack of PJ
(2) Insufficient process
(3) Insufficient service of process
Motion to quash is only available in CA courts
What is an answer?
An answer is the defendant’s response to the complaint. A defendant must respond within 21 days (or 60 or 90 days) in federal courts, 30 days in CA courts.
The defendant must respond to the allegations, assert affirmative defenses (or they will be deemed waived), raise compulsory counterclaims.
If a defendant fails to answer, the plaintiff may request a default judgement.
How are amended pleadings treated in Federal courts?
A plaintiff has a right to amend once within 21 days of service, or 21 days after service of a responsive pleading or pre-answer motions. A defendant has a right to amend once within 21 days of serving their answer. Otherwise, parties can seek a leave of court to amend, which the courts will freely grant.
How are amended pleadings treated in CA courts?
A plaintiff has a right to amend pleadings once before the answer or demurrer to the complaint is filed, or before the hearing after a demurrer is filed. Otherwise, a party must seek leave of court to amend, which the court will liberally grant.
