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Federal Civil Procedure > Pleadings > Flashcards

Pleadings Flashcards

1
Q

What must a complaint contain?

A
  1. Grounds for SMJ;
  2. Short and plain statement of claim showing P is entitled to relief;
  3. Demand for relief sought.

No need for PJ or venue.

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2
Q

A plaintiff must plead sufficient facts to support a….

A

Plausible claim

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3
Q

When a judge is determining whether a claim is plausible, they consider

A

their own experience and common sense.

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4
Q

What matters require more details or specifity in their complaints?

A
  1. Fraud;
  2. Mistake;
  3. Special Damages.
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5
Q

FRCP Rule 12 requires that a D respond by motion or answer within…

A
  1. 21 days after being served with process; OR
  2. Within 60 days from when the Plaintiff mailed service if service is waived.
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6
Q

Motions are not pleadings, they are…

A

requests for a court order.

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7
Q

When is a motion to strike brought?

A

When a party wants to strike immaterial or redundant statements in a pleading.

12f

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8
Q

When is a motion for a more definite statement brought?

A

When a complaint is so vague or ambiguous that a D cannot respond.

12e

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9
Q

What are the waivable defenses under FRCP Rule 12(b)?

(waived if not in first response)

A
  1. Lack of personal jurisdiction;
  2. Improper venue;
  3. Improper process;
  4. Improper service of process.
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10
Q

Which 12(b) motions can be raised as late as at trial?

(including as late as trial)

A
  1. Failure to state a claim; and
  2. Failure to join an indespensible party.
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11
Q

Can lack of SMJ be raised for the first time on appeal?

A

YES – an objection to SMJ can be raised at ANY TIME.

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12
Q

What must a D do if they file a 12(b)(6) motion before answering and it is denied?

A

D must file answer within 14 days.

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13
Q

What should be in a D’s answer?

A
  1. Responses to allegations of the complaint (admit, deny, state lack of sufficient information);
  2. Assertions of affirmative defenses (injects a new fact in the case).
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14
Q

Failure to deny an allegation is…

A

an admission.

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15
Q

What is never deemed admitted?

A

The amount of damages.

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16
Q

What are some affirmative defenses?

A

Statute of limitations, statute of frauds, res judicata, self-defense, all 12(b) defenses

17
Q

If one fails to assert an affirmative defense in their answer, the court may treat it as a…

A

waiver of the defense.

18
Q

A Plaintiff has a right to amend…

A

her complaint ONCE, no later than 21 days after the D serves its first Rule 12 response.

19
Q

A Defendant has a right to amend…

A

his answer once, no later than 21 days after serving it.

20
Q

If a Defendant’s first response was an answer, and he chooses to amend it, can he assert new Rule 12 defenses?

A

Yes, if he still has a right to amend.

21
Q

How can one amend if the time to amend has expired?

A
  1. With court permission if justice so requires; or
  2. With written consent of opposing party.
22
Q

When is permission to amend going to be denied by the court?

A
  1. If the party delayed too long;
  2. If it would prejudice the other party; or
  3. If the amendment would be futile.
23
Q

Variance occurs when…

A

the evidence presented at trial does not match the pleadings.

24
Q

If variance happens at trial and the opposing party does not object to the evidence being presented then…

A

the introducing party can move to amend the complaint to conform to the evidence.

25
Q

HYPO: P sues for breach of contract. D answers. At trial, P introduces evidence that D assaulted her. D does not object. What happens?

A

D did not object, so the evidence can be let in. P may move to amend the complaint to show the assault claim.

26
Q

If the SoL has run, but a party wants to amend their pleading to join a claim not originally asserted, the amended pleading will…

A

relate back if it concerns the same conduct if it concerns the same conduct, transaction, or occurrence as the original pleading.

27
Q

An amendment to change the defendant will only relate back if it can be down that:

A

(1) The amendment concerns the same conduct, transaction, or occurrence;
(2) D had knowledge of the case (within period of service) so he won’t be prejudiced by the amendment; and
(3) D knew or should have known that P made a mistake.

28
Q

HYPO: P is injured in Sam’s store. He sues Sam’s Store Inc. before the stature of limitations ran and has process served on Sam within 90 days – BUT P should have sued Sam Co. Limited. Sam is the president of Sam Co. Limited and is authorized to receive service. Should the P be allowed to amend the complaint?

A

Yes – Sam knew about the lawsuit within the period of the service of process and knew that he should have been sued but for the P’s mistake.

29
Q

Supplemental pleadings set forth…

A

facts that occur after the pleading was filed.

30
Q

Is there ever a right to file a supplemental pleading?

A

No – always up to the discretion of the court.

31
Q

Rule 11 certification serves as evidence that the attorney, to the best of their knowledge and belief and after reasonable inquiry that:

A

(1) The paper is not presented for improper purpose;
(2) Legal contentions warranted by law or good argument law should be changed;
(3) Factual contentions and denials have evidentiary support.

A party makes this certification every time she presents the position to the court.

32
Q

The purpose of sanctions is to…

A

deter a repeat of conduct, not to punish.

33
Q

A law firm (is/is not) jointly responsible for an attorney who violates Rule 11.

A

IS.

34
Q

A court may raise sanctions by issuing an…

A

order to show cause (for why sanctions should not be imposed).

35
Q

Before imposing a sanction a court must…

A

give the party an opportunity to be heard.

36
Q

If monetary sanctions are imposed, they are typically paid to…

A

the court, not the opposing party.

37
Q

Before filing a motion for sanctions, a party seeking sanctions must…

A

(1) Serve motion on opponent; and
(2) the party in violation has 21 days to fix.

Federal Civil Procedure (13 decks)

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