Pleadings/ Complaints

Question 1

Rule 8

Answer 1

Complaint

o FRCP 8(a)—(What is required in complaint) a pleading that states a claim for relief must contain:

i. FRCP 8(a)(1)-STATE JURISDICTION ; why the ct has the power to hear your case
a. Complaint must contain allegations showing the ground(s) upon which the SMJ of the federal ct is invoked. Clerk is 1st to see complaint & check jx.
ii. FRCP 8(a)(2)—A SHORT AND PLAIN STATEMENT OF CLAIM showing that the pleader is entitled to relief; about 3-4 sentences
iii. FRCP 8(a)(3)—A DEMAND FOR RELIEF SOUGHT (may include relief in the alternative or different types of relief)

o Note: State Courts want more detail in the Complaints

Ct is Interested in Complaint for 3 Reasons:

i. What kind of case?
ii. Does case belong in this ct?
iii. Does this case belong in any ct?

Question 2

Rule 8: Complaint

What is required?

Answer 2

FRCP 8(a) (what is required in a complaint) a pleading that states a claim for relief must contain:

i. FRCP 8(a)(1)-STATE JURISDICTION ; why the ct has the power to hear your case
ii. FRCP 8(a)(2)—A SHORT AND PLAIN STATEMENT OF CLAIM showing that the pleader is entitled to relief; about 3-4 sentences
iii. FRCP 8(a)(3)—A DEMAND FOR RELIEF SOUGHT (may include relief in the alternative or different types of relief)

Question 3

Two types of pleadings

Answer 3

1) Notice Pleadings: (Federal Ct) purpose is to give “notice” to the opposing party.
- Complaint requires a short and plain statement of a claim

2) Fact Pleading: (State Cts) complaint must state exactly what D did to P, so D can challenge P’s claim from the very beginning

Question 4

Writ System (1600s)

Answer 4

Asking for an order w/ “very specific” words order from the King.

Question 5

Fact Pleading (1800s)

Answer 5

Moved away from specifics, and just told what happened.

Question 6

Notice Pleading (1930s-today)

Answer 6

De-emphasized the importance, and gets the ball rolling..

Under Notice Pleading - P must make clear in a simple form what the problem is.

Question 7

2 types of responses to a complaint

Answer 7

1) motion(s) attacking the summons/ and/ or complaint OR

2) Responsive pleading (usually called an Answer)

Question 8

Pre-Answer Motions

Answer 8

D takes no position on the truth or falsity of the P’s allegations

o Filing a pre-answer motion is an alternative to answering the complaint.

i. D who moves to dismiss under 12(b) need not answer the complaint until after motion is decided.
ii. If she prevails on the motion, she may never have to answer

o Filing a pre-answer motion is Optional!—D can raise the 12(b) defenses in the Answer

Question 9

Answer

Answer 9

If D does not make a Pre-Answer motion or if the D denies Pre-Answer motion, D must Answer to the complaint w/ all possible defenses

o In Answering, D MUST also determine whether they want to make any claims of their own to be included in the Answer: 3 Possibilities to Include— Counter Claim, Cross Claim, or 3rd Party Claims

Question 10

Motion

Answer 10

request to the ct for it to do “something”

• If D cannot 12(b)(6) motion or dispose of it on any other grounds, she must responds to the factual allegations by doing 1 of the 3:

o Denial; FRCP 8(b)—requires the D to deny only those allegations that he actually disputes

i. If D does not know if an allegation in P’s complaint is true, he can deny it until he finds out truth.

ii. If D does not respond in any way to P’s allegation(s), that allegation(s) is deemed admissible.
o Affirmative Defense; OR
o Answer

Question 11

Rule 12(b)(6)

Answer 11

Failure to state a claim with which relief can be granted.

The law does not give you relief. The Court will assume all of the facts are true, and looks ONLY to the complaint.

Question 12

Rule 12(b)

Answer 12

How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;		 (5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.

Question 13

FRCP 11 (a)

Answer 13

SIGNING PLEADINGS, MOTIONS, AND OTHER PAPERS; REPRESENTATIONS TO THE COURT; SANCTIONS

(a) every pleading must be signed by attorney or person if unrepresented by one.

Question 14

FRCP 11(b)

Answer 14

SIGNING PLEADINGS, MOTIONS, AND OTHER PAPERS; REPRESENTATIONS TO THE COURT; SANCTIONS

(B) by lawyer signing, certifies that to best of the persons knowledge, information and belief, formed an inquiry reasonable under the circumstances:

1) it is not being being used for any improper purpose, such as to harass, cause unreasonable delay, or needlessly increase the cost of litigation
2) the claims defenses, and other legal contentions are warranted by existing law or frivolousness argument for extending, modifying, or reversing existing law or for establishing new law
3) the factual contentions have evidentary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery and
4) the denials of factual contentions are warranted on the evidence or, if specifically identified, are reasonably based on belief or a lack of information

Question 15

FRCP 11 (C)

Answer 15

Sanctions

If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court MAY impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee

Question 16

How long does a party have to correct pleading under Rule 11 (Sanctions)

Answer 16

21 days

Question 17

How to make a motion for sanctions under 11?

Answer 17

A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the document is withdrawn.

Question 18

Notice Pleading: what is required by new court rulings?

Twombly and Iqbal

Answer 18

1) Court must accept true all of the allegations complained in the complaint inapplicable to legal conclusions
2. Only a complaint that states a plausible claim for relief survives a motion to dismiss

“ONLY ENOUGH FACTS TO STATE A CLAIM TO RELIEF THAT IS PLAUSIBLE ON ITS FACE”

Iqbal instructs courts facing a challenged complaint first to disregard conclusory allegations – then to decide whether the remaining allegations appear plausible in light of judicial experience and common sense

what’s a lower court judge supposed to do:

“draw on judicial experience and common sense” to determine whether or not it is plausible

Question 19

Rule 9 Special Pleading

Answer 19

In alleging fraud or mistake, a party MUST state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

Question 20

Rule 11(b) bases for a motion for sanctions

Answer 20

1) improper purpose or harassment
2) inadequate basis in law
3) absence of present or likely evidenitary support for allegations of fact

Question 21

May the court allow monetary sanctions to a party for violation of 11(b)(2)?

Answer 21

NO

• monetary sanctions for violation of FRCP 11(b)(2) MAY NOT be awarded against represented party

Question 22

How long does a party have to respond to a complaint?

Answer 22

21 days, unless they waive service, then it is 60 days

Question 23

What are Pre-Trial Motions?

Answer 23

12(b) motions

1) lack of smj
2) lack of pj
3) improper venue
4) insufficient processes
5) insufficient service of process
6) failure to state a claim upon relief can be granted
7) failure to join a party under rule 19

Question 24

What pre-trial motions (12b) must be mentioned initallily or they are waived

Answer 24

2)lack of pj
3) improper venue
4) insufficient process
5) insufficient service of process
]

Question 25

what pre-trial motions (12b) can you bring later, even if not mentioned first?

Answer 25

1) lack of smj
6) failure to state a claim upon whch relief can be granted

• never waived

Question 26

May the court use sanctions on its on?

Answer 26

YES

Ct may impose sanctions against party if the ct directed the attorney, firm or party to show support a finding that it has not violated rule 11(b).

Question 27

What happens if Party does not admit or deny a certain allegation?

Answer 27

It treats the allegation as deemed ADMITTED if party does not admit or deny each allegation

Question 28

Rule 26(e) Duty to Disclose, General Provisions Governing Discovery

Answer 28

In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:

(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or

(B) as ordered by the court.

Question 29

When does an Amendment relate back to the date of the original pleading?

Answer 29

An Amendment relates back to the date of the original pleading when

1) the law that provides the applicable statute of limitations allows relation back;
2) the amendment asserts a claim or defense that arose out of the SAME CONDUCT, TRANSACTION, OR OCCURRENCE set out- or attempted to be set out- in the original pleading or;
3) the amendment changes the party or the naming of the party against whom a claim is asserted, if SAME CONDUCT, TRANSACTION, OR OCCURRENCE of original pleading, and if the period provided by rule 4(m) for serving the summons and complaint, the party to be brought in by the amendment
1) received such notice of the action that it will not be prejudicied in defending on the merits and
2) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper parties identity

Question 30

what must be satisfied to enter a new party in amendment and have it relate back to original date of first pleading?

Answer 30

1) amendment must be claim or defense that arose out of the SAME CONDUCT, TRANSACTION, OR OCCURRENCE, of the original pleading and
2) person is served within 120 days since the complaint was filed AND
3) person received such notice of the action that it will not be prejudiced in defending on the merits AND
4) knew or should have known that that the action would have been brought against it, but for a mistake concerning the proper party’s identity

Question 31

Statute of Limitations and RELATION back

Amendments

Answer 31

Statute of Limitations bars claims asserted in amended complaint UNLESS amended complaint relates back to date of original complaint

	Central to the decision is what constitutes a claim
Rule 15(c) – Relation Back
New cause of action/defense has to arise out of the same CONDUCT, TRANSACTION, OR OCCURRENCE in the original pleading

Question 32

Adding another cause of action after statute of limitations has run

Answer 32

An amendment relates back to original when the amendment asserts a claim or defense that arose out of the SAME CONDUCT, TRANSACTION OR OCCURRENCE in original pleading

ALL THAT IS REQUIRED FOR RELATION BACK: allegations give D sufficient notice of the general facts surrounding the occurrence,

Allegation in original & amended complaint from same nucleus of operative facts

Question 33

Rule 8(c) Affirmative Defenses

Answer 33

in responding to a pleading, a party MUST affirmatively state any avoidance or affirmative defense, including

-assumption of risk
-contributory negligence
-duress
-estoppel
-fraud
-laches
-res judicata
- statute of frauds
- statute of limitations
and many fucking more

Question 34

Does a party waive affirmative defenses if they do not bring in response?

Answer 34

YES

-If you do not bring it up in the Answer, it’s waived!

Question 35

How to make an amendment

Answer 35

15(a)(1): all parties have the right to amend their pleadings ONCE AS A MATTER OF COURSE (of right)

• As a matter of course—w/o leave of ct or consent of the adverse party. You have a right to amend. File the amended pleading and it supersedes or supplements the 1st.

Question 36

When may a party amend a pleading?

Answer 36

o A party may amend its pleading once w/in 21 days of serving it.

After the 21 days, a party may amend its pleading only with the opposing party’s written consent or the Ct’s leave.

Question 37

When parties may amend a pleading after 21 days?

Answer 37

After the 21 days, a party may amend its pleading only with
1)the opposing party’s written consent or

2) the Ct’s leave.
- Parties may amend pleadings In the absence of apparent or declared reason- such as:

o Undue delay, bad faith or dilatory motive on the part of the movant

o Repeated failure to cure deficiencies by amendments previously allowed

o Undue prejudice to the opposing party by virtue of allowance of the amendment

o Futility of amendment, etc.

Question 38

When can P voluntary dismiss?

Answer 38

1) P can dismiss any time before D answers or summary judgment motion
2) P can dismiss at anytime if all parties agree
3) failure to prosecute: INVOLUNTARY dismissal- this does to P what default does to D

Question 39

What happens if a person does not admit or deny something in the answer?

Answer 39

• requires D to deny allegations actually disputed, any allegation is not denied is not deemed admitted

Question 40

What happens if a D makes a 12b motion but does not include defenses/ claims in that motion?

Answer 40

If they make a motion under 12b they need to include all defense/ claims in that motion= cannot state it later.

Question 41

How do judges measure “plausabulity” under the notice pleading?

Answer 41

by

1) judicial experience +
2) Personal Experience (common sense)