Finals Flashcards
(30 cards)
What is the 2 prong standard for Pleadings?
- Can have no legal conclusions.
- Must state plausible claim
- Must state with particularity
- When the statute of limitations has run out, go to the Relation Back rule–Rule 15
What constitutes a “plausible claim?”
Claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
What are the possible responses to the complaint?
Complaint
Answer
Reply
What happens is there is no answer to the complaint?
Default Judgment is entered pursuant to Rule 55(a)
How long do you have to file an answer?
It depends. (duh)
If service hasn’t been waived, then you have 21 days after being served with the summons or complaint.
60 days if you waived service.
90 days if you’re out of the country.
How long do you have to file a pre-answer motion?
14 days unless the court sets a different time.
How long do you have to answer a counterclaim or cross-claim?
Within 21 days of being served
How long do government officials being sued within the scope of their job have to answer?
12(a)(2) 60 days
How long do gov’t officials being sued in an individual capacity have to answer?
12(a)(3) 60 days
What are some benefits to waiving service of process?
More time to get a lawyer, money, organization, etc.
What rule governs serving an answer?
Rule 5 gives service of process rules for answers and other types of pleadings.
What are the different kinds of pre-answer motions and what rule governs them?
Rule 12(b)
What is the difference in rule 12(b)(4) and 12(b)(5)?
12(b)(4) deals with insufficient process and 12(b)(5) deals with insufficient service of process.
What is the requirement to file a 12(h)(1) motion?
The defendant has to assert a 12(b) motion in their first response.
What is rule 12(h)?
Says that the defense of failure to state a claim can be raised at any time during a trial.
12(h)(3) says lack of SMJ can be raised at any time as well, even when the case is being appealed.
What is rule 12(f)?
Motion to strike insufficient, redundant, immaterial, or scandalous material. Must be filed w/in 21 days
What is rule 12(c)?
Motion for judgment of pleadings
What should the defendant’s answer do?
- Admit or deny the plaintiff’s allegations.
- Raise defenses to Plaintiff’s allegations.
Governed by Rule 8(b)
What two types of denials are listed in Rule 8(b)(3)?
General–Very short document in which the defendant denies everything in general.
Specific–in numbered paragraphs, they admit or deny the allegations in detail.
What requirements to an answer does Rule 8(b)(2) have?
The defendant has to respond to the substance of the situation. Can’t just say, “Plaintiff is wrong.” Have to reply to the actual substance of the complaint
What is the relation back doctrine?
Rule 15(c). It preserves a pleading from a D's statute of limitations defense by treating the amendment as if it had been filed as the same time of the original pleading. Only emerges after the SOL has expired. It is used to add defendants or change defendants or add things to the complaint.
What is a responsive pleading?
Rule 7–A pleading that is filed in reply or in response to another plea. Answer to a counterclaim, cross-claim, or 3rd party complaint.
When is a responsive pleading required?
Complaint or 3rd party complaint. Must reply or there will be a default judgment entered.
What are 3 ways you can amend your pleadings?
- Learn new facts during discovery.
- There’s a problem with the pleading–want to fix it.
- New things happen that are in some way related to your existing claim.