Pleadings

Question 1

What must be contained in the complaint?

Answer 1

1. grounds for subject-matter jurisdiction
2. statement of facts that are sufficient to show that P is entitled to relief
3. demand for judgement and the specific relief sought

Question 2

When may a party amend a complaint as a matter of right?

Answer 2

A party can amend a complaint as a matter of right:
1. within 21 days of serving it
2. within 21 days after an answer or motion to dismiss has been filed

Question 3

When may a party amend an answer as a matter of right?

Answer 3

A party can amend an answer within 21 days of serving it

Question 4

How many times may a party amend a pleading as a matter of right?

Answer 4

Once

Question 5

When can a party amend a pleading with permission?

Answer 5

1. With permission of the other parties
2. with permission of the court after the court considers the reason for the delay and whether amending will result in prejudice to the other party

Question 6

When are amendments treated as being filed for purposes of the statute of limitations?

Answer 6

Added claims in amendment are considered filed on the date of the original claim if the the new claims arise from the same transaction or occurance as existing claims

Question 7

When will added parties relate back to the original filing date?

Answer 7

Addition of new parties will relate back to the original filing date if the party to be added:
1. knew of the suit soon enough to not be prejudiced and not later than the time permitted for services
2. should have expected to be named as a D
3. was originally left out because of mistake in identity

Question 8

What must be included with service of process under Rule 4?

Answer 8

The process must include service of both the complaint and summons

Question 9

When must process be served?

Answer 9

Process must be served within 90 days of filing the complaint

Question 10

Who may issue service of process?

Answer 10

Anyone over 18 and not a party to the case may issue service of process

Question 11

What are options for service of process?

Answer 11

1. the manner prescribed by state court in the state where either the federal suit has been filed or where D will be served
2. the manner specified by Federal Rule 4

Question 12

What does Rule 4 specify regarding how process may be served?

Answer 12

If the D is a natural person, the options under Rule 4 regarding methods for service of process are:
1. deliver the service to D themselves through a third-party
2. leave process at D’s usual abode with a person of suitable age and discretion that resides there
3. serve to D’s registered agent
4. mail with letter requesting D waive in-person service

Question 13

What are D’s obligations if D refuses to waive in-person service?

Answer 13

If D declines to waive personal service, they become responsible for the cost of the personal service

Question 14

What are options for service of process under Rule 4 where D is a business?

Answer 14

If D is a corporation, partnership or association, Rule 4 allows for service of process on:
1. an officer
2. a managing agent or general agent
3. any other agent authorized by appointment or by law to receive service

Question 15

What are due process requirements for service of process?

Answer 15

D is entitled to notice of the claims against them and an opportunity to respond to those claims

Question 16

How is notice requirement under due process satisfied?

Answer 16

Service of process satisfies notice so long as the service is reasonably calculated to inform D of the action against them

Question 17

When is notice without service a due process violation?

Answer 17

If P did not take steps reasonably calculated to inform D of the action against them then there is a due process violation regarding notice to D

Question 18

What is an answer to a complaint?

Answer 18

An answer is when D admits or denies P’s allegations and lists the defenses they may have

Question 19

Must D respond to each allegation?

Answer 19

Yes, for each allegation D should specifically admit or deny the claims against them?

Question 20

What is result if D fails to specifically deny claims?

Answer 20

If D fails to deny claims then those claims are deemed admitted

Question 21

Are there limitations regarding defenses that D may raise?

Answer 21

No, there are no limit to how many defenses D may raise

Question 22

What are common defenses?

Answer 22

-statute of limitation
-statute of frauds
-assumption of risk

Question 23

What is effect if defenses are not asserted in an answer

Answer 23

If defenses are not included in an answer, they’re generally deemed to be forfeited

Question 24

Which defenses will not be forfeited if not raised in the answer?

Answer 24

The following defenses are not forfeited if not included in the answer
1. failure to state a claim upon which relief should be granted
2. failure to join a necessary party
3. lack of subject matter jurisdiction

Question 25

What is a motion for a more definite statement and when will it be granted?

Answer 25

The court will order pleading to be clarified if it is so vague that the responding party cannot reasonably prepare a response

Question 26

What is a motion to strike?

Answer 26

The court can order material stricken if complaint or answer contains redundant, immaterial or scandalous content

Question 27

Who can order a motion to strike?

Answer 27

The court can order material stricken on its own, or respond to a motion to strike raised by the opposing party

Question 28

What is a motion to dismiss?

Answer 28

A motion to dismiss seeks dismissal of the case

Question 29

Who can file a motion to dismiss?

Answer 29

A motion to dismiss can be filed by any defending party

Question 30

When must an initial response be served?

Answer 30

An initial response, either an answer or pre-answer motion must be served:
1. if D was actually served with process, within 21 days
2. if D waived service then within 60 days

Question 31

How long does D have to file an answer if D initially responds to complaint with a motion, which is later denied?

Answer 31

D must file an answer within 14 days of the denial of D’s motion