Ch 5: Pleadings Flashcards
(93 cards)
1
Q
How is a civil action commenced under Rule 3?
A
By filing a complaint with the court clerk
In a federal diversity action, state law will apply to decide when the action commenced for the purposes of the statute of limitations.
2
Q
What does Rule 6(a)(1) state about time periods stated in days?
A
Excludes the day of the event that triggers the period but includes every day following
This includes intervening Saturdays, Sundays, and legal holidays.
3
Q
What is the minimum time for serving a written motion and notice of a hearing?
A
At least 14 days before the hearing
Unless the motion can be heard ex parte, the Rules provide for it, or the court orders otherwise.
4
Q
Under Rule 6(d), what happens when service is made by mail?
A
Three days are added to the prescribed time period
This applies when a party must act within a specified time after being served.
5
Q
Who may sue in their own names without joining the person for whose benefit the action is brought?
A
- An executor
- An administrator
- A guardian
- A bailee
- A trustee of an express trust
- A party with whom or in whose name a contract has been made for another’s benefit
- A party authorized by statute
According to Rule 17(a)(1).
6
Q
What does service of process refer to?
A
The delivery of the summons and complaint upon the defendant.
7
Q
What is the procedure for service of process in a federal action?
A
Rule 4 sets forth the form, content, method of issuance, methods of service, and time of service.
8
Q
What are the methods of service on individuals inside the U.S.?
A
- Serve on the defendant personally
- Deliver to the defendant’s usual place of abode with a person of suitable age and discretion
- Deliver to an authorized agent
9
Q
What must the plaintiff do under Rule 4(c)?
A
Serve the summons and complaint upon the defendant
The service may be made by any nonparty who is at least 18 years old.
10
Q
What is the time limit for serving the summons and complaint after filing?
A
Within 90 days after filing the complaint.
11
Q
What is required for a waiver of service under Rule 4(d)?
A
A competent individual, corporation, or association must avoid unnecessary expenses of serving the summons by waiving service.
12
Q
What happens if a defendant fails to waive service without good cause?
A
- The expenses incurred in making service must be imposed on the defendant
- The reasonable expenses of any motion required to collect the service expenses
According to Rule 4(d)(2).
13
Q
What does Rule 65 govern?
A
The issuance of an injunction.
14
Q
What are the two types of injunctions?
A
- Mandatory injunction
- Prohibitory injunction
15
Q
What is a temporary restraining order (TRO)?
A
Preserves the status quo of the parties until a full hearing on a preliminary injunction.
16
Q
What must a preliminary injunction establish?
A
- Likely to succeed on the merits
- Likely to suffer irreparable harm
- Balance of equities is in the plaintiff’s favor
- Injunction is in the best interests of the public
17
Q
What does a permanent injunction determine?
A
A judicial determination on the merits of an application for relief.
18
Q
When can a federal court not use an injunction?
A
To prohibit pending state proceedings unless expressly authorized by statute.
19
Q
What is required in every order granting injunctive relief under Rule 65(d)?
A
- State the reasons for its issuance
- Specifically state its terms
- Specify the acts restrained or required
20
Q
What is the effect of a waiver of service under Rule 4(d)(3)?
A
Extends the deadline to serve an answer from 21 days to 60 days after the notice was sent.
21
Q
What is the purpose of Rule 4(l)(1)?
A
To submit proof of service to the court, usually by an affidavit of the process server.
22
Q
What must a party do to avoid waiving objections to insufficiency of process?
A
Assert the defenses in a responsive pleading or by motion before submitting a responsive pleading.
23
Q
What is the purpose of a complaint in legal proceedings?
A
The complaint serves as notice to the opposing party and is the initial pleading in an action filed by the plaintiff.
24
Q
What must a complaint include under Rule 8(a)?
A
- A short and plain statement of the grounds for subject matter jurisdiction
- A statement of the claim establishing entitlement to relief
- A demand for judgment for the relief sought
25
What is subject matter jurisdiction?
It is an allegation required in a complaint that the court has jurisdiction over the case.
26
What does Rule 8(a)(2) require regarding the statement of the claim?
It requires a short and plain statement showing that the pleader is entitled to relief.
27
What is the requirement for detailed factual allegations in a complaint?
Detailed factual allegations are not required, but sufficient facts must show that the claim has substantive plausibility.
28
What must be pled with particularity under Rule 9?
* Fraud
* Mistake
* Mental condition circumstances
29
What is required to plead damages in a complaint?
* General damages may be alleged generally
* Special damages must be specifically stated
30
What does a plaintiff's demand for relief in a complaint entail?
It may include relief in the alternative and seek different types of relief, such as monetary damages, equitable relief, or a declaratory judgment.
31
What is the consequence of failing to respond to a complaint under Rule 12?
The defendant risks a default for failing to answer or file a pre-answer motion.
32
What defenses can be raised in a motion to dismiss under Rule 12(b)?
* Lack of subject matter jurisdiction
* Lack of personal jurisdiction
* Improper venue
* Insufficient process
* Insufficient service of process
* Failure to state a claim
* Failure to join a necessary party
33
What is a motion to quash?
It is a request that a court nullify or void a legal action, such as finding that service of process was invalid.
34
When must a lack of personal jurisdiction be raised?
It must be raised in a pre-answer motion or within the time for amending the answer as of right.
35
What is the standard for a motion to dismiss under Rule 12(b)(6)?
A claim can be dismissed if it fails to assert a legal theory of recovery or fails to allege sufficient facts to support a cognizable claim.
36
What must a court do when deciding a motion to dismiss under Rule 12(b)(6)?
* Treat all well-pleaded facts as true
* Resolve all doubts in favor of the plaintiff
* View the pleading in the light most favorable to the plaintiff
37
What is required for a complaint to not be dismissed for lack of plausibility?
The facts alleged must raise a right to relief above the speculative level.
38
What can a court consider when ruling on a motion to dismiss?
* The allegations in the complaint
* Exhibits attached to the complaint
* Matters subject to judicial notice
39
What is the two-step analysis for a motion to dismiss established by the U.S. Supreme Court?
* Identify and reject legal conclusions unsupported by factual allegations
* Assume the truth of well-pleaded factual allegations to determine plausibility
40
What happens if a motion to dismiss is granted?
The plaintiff may generally amend the pleading and continue the action, or a judgment will be entered.
41
When can a party move for judgment on the pleadings?
After the pleadings are closed, when material facts are not in dispute.
42
What is a motion for a more definite statement?
It is a motion filed when a pleading is so vague that a party cannot reasonably draft a required responsive pleading.
43
What must a party do if they seek a more definite statement?
Specify the defects in the pleading and the details sought.
44
What is a motion to strike under Rule 12(f)?
It allows a court to order the removal of insufficient defenses or redundant material from a pleading.
45
When must a party move to strike a pleading?
Before responding to a pleading when a responsive pleading is permitted.
46
What is the definition of an answer in legal terms?
An answer is a pleading by the defendant that responds to a plaintiff’s complaint.
47
What are the requirements for admissions or denials in an answer?
The answer must admit or deny the allegations of the plaintiff’s complaint.
48
What is a specific denial?
A denial of a particular paragraph or allegation in the complaint.
49
What is a general denial?
A statement that denies every allegation of the complaint.
50
What happens if a party fails to deny an allegation in an answer?
The allegation will be deemed admitted, except for allegations regarding the amount of damages.
51
What is a general denial?
A statement by a party that denies every allegation of the complaint.
## Footnote
A general denial can be made only if the party intends in good faith to controvert all allegations.
52
What is a qualified general denial?
A statement that denies every allegation in the complaint, except certain specified allegations.
53
What happens if an allegation is not denied?
It will be deemed admitted if a responsive pleading is required and the allegation is not denied.
54
What must an answer state regarding affirmative defenses?
Any avoidance or affirmative defense that the defendant has.
55
List some examples of affirmative defenses under Rule 8(c).
* Accord and satisfaction
* Arbitration and award
* Assumption of risk
* Contributory negligence
* Duress
* Estoppel
* Failure of consideration
* Fraud
* Illegality
* Injury by a fellow servant
* Laches
* License
* Payment
* Release
* Res judicata
* Statute of Frauds
* Statute of limitations
* Waiver.
56
What occurs if an affirmative defense is not raised?
It constitutes a waiver of that defense.
57
What is a counterclaim?
A claim stated by a defendant against the plaintiff in response to the complaint.
58
Under what circumstances is a counterclaim compulsory?
Under certain circumstances defined in Rule 13.
59
What governs the service of a pleading other than the original complaint?
Rule 5.
60
What is the general time frame for serving an answer if no motion is made under Rule 12?
21 days after being served with the summons and complaint.
61
What happens if a motion is made under Rule 12?
A defendant will not have to serve an answer while the motion is pending.
62
What is a reply?
A response by the plaintiff to a defendant’s answer, required only if ordered by the court.
63
When may a party amend a pleading by right?
No later than 21 days after serving it if no responsive pleading is required.
64
What must a party do to amend a pleading during and after a trial?
Amend the pleading to conform to the evidence and allow the opposing party an opportunity to prepare.
65
What is the effect of an amended pleading?
It supersedes the prior pleading.
66
What does 'relation back' mean in the context of amended pleadings?
An amendment will relate back to the date of the original pleading under certain conditions.
67
What is the time frame to respond to an amended pleading?
Within 14 days after service of the amended pleading or the time remaining for response to the original pleading.
68
What does Rule 15(d) pertain to?
Supplemental pleadings that describe events occurring after the filing of an earlier pleading.
69
What is required for every pleading, written motion, and other paper filed with the court?
It must be signed by at least one attorney of record or a party personally.
70
What does presenting a pleading under Rule 11 include?
Signing, filing, submitting, or later advocating a position presented in the pleading.
71
What can initiate the sanctions process under Rule 11?
A party's motion or by the court on its own initiative.
72
What must a motion for sanctions describe?
The specific conduct alleged to violate Rule 11.
73
What types of sanctions may be imposed under Rule 11?
* Nonmonetary directives
* An order to pay a penalty to the court
* An order directing payment to the movant for attorney’s fees and expenses.
74
What must an order imposing a sanction under Rule 11 describe?
The sanctioned conduct and explain the basis for the sanction.
75
What is the general time frame for serving process after filing a complaint?
90 days
## Footnote
This period is essential for adhering to the service of process requirements.
76
Name one method of serving process on an individual located within the United States.
Serving the individual personally
## Footnote
Other methods include following state rules, leaving process at the individual's abode, or delivering to an appointed agent.
77
Who must be served when the defendant is an infant?
The infant and the infant’s guardian
## Footnote
This ensures proper representation for minors in legal proceedings.
78
What is required for serving process on a corporation?
Delivering process to a corporate officer, director, managing agent, or appointed agent
## Footnote
Alternatively, following state law can also satisfy this requirement.
79
What must a plaintiff do if they cannot locate claimants in an in rem action?
Make a diligent effort to locate all claimants and serve them personally
## Footnote
If unsuccessful, notice by publication is permitted but not if the plaintiff knows the claimants' details.
80
What does a waiver of service request need to include?
A written request addressed to the individual defendant or an officer of a corporate defendant
## Footnote
It must also give the defendant at least 30 days to return the waiver.
81
What is a Temporary Restraining Order (TRO)?
A TRO preserves the status quo until a full hearing and is effective for up to 14 days
## Footnote
It can be issued without notice if immediate injury will occur.
82
What are the requirements for a Preliminary Injunction?
Plaintiff likely to succeed on merits, likely to suffer irreparable harm, balance of equities favors plaintiff, injunction in public interest
## Footnote
These criteria must be met prior to a full hearing.
83
What must a federal complaint contain?
A statement of subject matter jurisdiction, a statement of the claim, and a demand for judgment
## Footnote
This ensures clarity and adherence to legal standards.
84
When must a defendant respond to a complaint?
Within 21 days of being served with process
## Footnote
This can be through an answer or a pre-answer motion.
85
What defenses can be raised at any time according to Rule 12(b)?
Lack of subject matter jurisdiction
## Footnote
This defense is never waived.
86
What is a Rule 12(b)(6) Motion to Dismiss?
A motion to dismiss if the claim fails to assert a legal theory or allege sufficient facts
## Footnote
Courts treat well-pleaded facts as true when deciding on such motions.
87
What is the purpose of a Motion for Judgment on the Pleadings?
To dispose of a case when material facts are not in dispute based solely on pleadings
## Footnote
This motion is rarely used due to the requirement of agreement on all facts.
88
What must an answer do regarding the plaintiff's allegations?
Admit or deny the allegations or plead lack of knowledge
## Footnote
This is crucial for the defendant's response to the complaint.
89
What are some common affirmative defenses?
* Assumption of the risk
* Contributory negligence
* Fraud
* Duress
* Release
* Statute of frauds
* Statute of limitations
## Footnote
These must be asserted or they are deemed waived.
90
What is the deadline for serving an answer if service is waived?
60 days after the waiver request was sent for a U.S. defendant
## Footnote
For foreign defendants, this period extends to 90 days.
91
What is the time frame for a plaintiff to respond to a defendant's answer?
21 days after being served with a court order to reply
## Footnote
This is known as a reply.
92
What is the relation-back doctrine?
Allows an amendment to relate back to the original pleading date if it arises from the same conduct
## Footnote
This applies when the statute of limitations has expired.
93
What is required for the certification of pleadings?
Signature of an attorney certifying factual and legal basis for the filing
## Footnote
This includes ensuring no improper purpose and that allegations have evidentiary support.
