pleadings Flashcards
complaint
must contain:
(1) grounds of SMJ
(2) Short and plain statement of claim showing P is entitled to relief
* must plead sufficient facts to support a plausible claim
(3) Demand for relief: what you want to recover
P need not allege grounds for PJ or venue
D’s response
FRCP 12
D must respond by motion or answer within 21 days after being served with process or 60 days from date of mailing if D waived service
rule 12 motions
12(e) motion for more definite statement
* used when the complaint is so vague or ambiguous the defendant simply cannot respond
* must make this motion before answering
12(f) motion to strike
* asks the court to remove redundant or immaterial things from a pleading (that is, a complaint, an answer, etc.)
* either party can move to strike
waivable 12(b) defenses
Some Rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer)
three Ps and a V
* lack of PJ
* improper venue
* improper process (document: summons/complaint)
* improper service of process
A failure to state a claim and a failure to join an indispensable party can be raised as late as trial; lack of SMJ can be raised at any time even appeal
answer
admit, deny, state lack sufficient info to admit or deny
- raise affirmative defenses
amended pleadings
By P: P has a right to amend her complaint once no later than 21 days after the D serves her first R. 12 response
D has a right to amend his answer once no longer than 21 days after serving it
* If D’s first response was an answer where he forgot to raise waivable defenses or affirmative defense, if he still has a right to amend, it will include those thing
amendment after time to amend expires
With court permission if justice so requires
* Generally allowed unless delayed too long, will prejudice other party, or would be futile
or with written consent by the other party
variance
when evidence at trial does not match what was pleaded and the other party fails to object at trial, the party introducing the evidence may move at any time (even after judgment) to amend the complaint to conform to the evidence
relation back
can change a D if
* (1) amendment concerns the same conduct, transaction, or occurrence as the original pleading;
* (2) D had knowledge of case so won’t be prejudiced by amendment, and
* (3) D knew or should have known that P made a mistake and but for a mistake, she would have been named originally
R 11 certification
When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
* The paper is not for an improper purpose;
* The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
* The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation
R 11 sanctions
anctions may be imposed against the party, the lawyer, and/or the lawyer’s firm
* court can raise on its own motion
have to give party threatened w sanctions an op to be heard
monetary or nonmonetary
safe harbor: party seeking sanctions must serve the motion on other parties before ifling wiht court and given them 21 days to fix the problem and avoid sanctions
