Pleadings

Question 1

In federal court, what commences an action?

Answer 1

Filing the complaint commences the action

Question 2

What must the complaint contain?

Answer 2

a) a statement of GROUNDS OF SMJ
b) a SHORT AND PLAIN STATEMENT OF THE CLAIM showing that the Plaintiff is entitled to relief; and
c) A DEMAND for relief sought (i.e. damages, injunction, declaratory judgment)

Question 3

what does the Plaintiff not have to allege in their complaint?

Answer 3

the P need not allege grounds for PJ or venue

Question 4

regarding the “short and plain statement of the claim” showing that the P is entitled to relief - what must the P plead?

Answer 4

In stating the claim, the Plaintiff must plead SUFFICIENT FACTS TO SUPPORT A PLAUSIBLE CLAIM.

Question 5

How is ‘plausibility’ determined?

Answer 5

To determine plausibility, the judge uses their own experience and common sense.

Question 6

How can a Defendant challenge a Plaintiff’s complaint and the plausibility of their claim?

Answer 6

by making a 12(b)(6) failure to state a claim motion.

Question 7

What are the cases that require special pleading?

Answer 7

fraud, mistake, and special damages must be pleaded with more detail - with PARTICULARITY or SPECIFICITY

Question 8

How must a defendant RESPOND to the Plaintiff’s complaint?

Answer 8

Rule 12 - requires D to respond in 1 of 2 ways:
(1) by MOTION; or
(2) by ANSWER

Question 9

when is the defendant required to respond to P’s complaint?

Answer 9

to avoid DEFAULT, the defendant must respond (my motion or answer) NO LATER THAN 21 DAYS AFTER BEING SERVED with PROCESS.

Question 10

how long does the D have to respond if they WAIVED service?

Answer 10

if the defendant waived service, they have 60 DAYS from when the Plaintiff MAILED THE WAIVER form to RESPOND.

Question 11

What is a motion?

Answer 11

a motion is NOT a pleading - it is a request for a COURT ORDER; they fall under Rule 12

Question 12

what are the rule 12 motions that address issues of FORM?

Answer 12

a) Rule 12(e) motion for MORE DEFINITE STATEMENT
b) Rule 12(f) motion to STRIKE
c) Any part can move to STRIKE (i.e. defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative defense).

Question 13

when is a Rule 12(e) motion for MORE DEFINITE Statement used?

Answer 13

it is used when the complaint is so VAGUE or AMBIGUOUS the defendant simply cannot respond

Question 14

when must a rule 12(e) motion for more definite statement be made?

Answer 14

a rule 12(e) motion for more definite statement must be made BEFORE ANSWERING (that is before defendant files their answer to the P’s complaint)

Question 15

when does a party use a Rule 12(f) motion to STRIKE?

Answer 15

a rule 12(f) motion to STRIKE asks the court to REMOVE REDUNDANT or IMMATERIAL things from a pleading (i.e. a complaint, an answer, etc.)

Question 16

who can move to STRIKE?

Answer 16

Any part can move to STRIKE (i.e. defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative defense).

Question 17

what are 12(b) motions?

Answer 17

they are motions to DISMISS (for some reason)

Question 18

how many 12(b) motions are there?

Answer 18

there are 7

Question 19

What are ‘waivable’ defenses under Rule 12(b)?

Answer 19

Some Rule 12(b) defenses are WAIVED if not put in the FIRST RULE 12 RESPONSE (a rule 12 motion OR answer)

Question 20

what are the 4 ‘waivable’ defense under Rule 12(b)?

Answer 20

“3 P’s and V”
(1) a lack of PERSONAL JURISDICTION
(2) Improper PROCESS (problem with the papers - summons or complaint)
(3) Improper SERVICE OF PROCESS (papers not served right)
(4) Improper VENUE

Question 21

what are the other 12(b) defenses that can be raised after the first response and NOT WAIVED?

Answer 21

there are 3:
(1) a FAILURE TO STATE A CLAIM upon which relief can be granted

(2) a FAILURE TO JOIN AN INDISPENSABLE PARTY

(3) a LACK OF SMJ

Question 22

when can these non-waivable defenses be raised?

Answer 22

(1) a FAILURE TO STATE A CLAIM (can be raised any time before trial or at trial) but no later - i.e. cannot be raised for the first time on appeal)

(2) a FAILURE TO JOIN AN INDISPENSABLE PARTY (can be raised any time before trial or at trial)

(3) a LACK OF SMJ (can be raised at ANY TIME -even on appeal; and is NEVER waived!)

Question 23

What happens if a court determines that it has no SMJ?

Answer 23

any act done by the court without SMJ is VOID.

Whenever the court determines that it has no SMJ, it must dismiss OR remand (if it was removed from state court)

Question 24

what happens if the defendants motion to DISMISS under 12(b) gets DENIED?

Answer 24

Defendant must then serve THEIR ANSWER NO LATER THAN 14 DAYS AFTER NOTICE OF THE DENIAL

Question 25

What is an answer?

Answer 25

An answer is a pleading - and is one of the Defendant's options when responding to the P's complaint

Question 26

What does the defendant do in the answer?

Answer 26

the defendant does 2 things in the answer: a) responds to the allegations in the complaint b) raises affirmative defenses

Question 27

how doe a defendant (a) respond to the allegations in a complaint?

Answer 27

the defendant may: (a) ADMIT some or all allegations (b) DENY some or all allegations or (c) state that they have INSUFFICIENT KNOWLEDGE to admit or deny some or all of the allegations (has effect of denial); cannot do this when the answer to the allegation is in your control

Question 28

what happens if you fail to admit or deny an allegation?

Answer 28

Failure to deny an allegation is an ADMISSION except regarding the amount of damages

Question 29

what are 'affirmative defenses'?

Answer 29

affirmative défense inject a new fact into the case that woudl allow the defendant to win

Question 30

what are examples of classic affirmative defenses?

Answer 30

statute of limitations, statute of frauds, res judicator, an self-defense

Question 31

if you don't raise 12(b) motion to dismiss - where can you raise them?

Answer 31

all rule 12(b) defense can be pleaded as affirmative defenses

Question 32

what happens if a defendant fails to assert an affirmative defense in their answer?

Answer 32

if the defendant fails to assert an affirmative defuse in their answer, the court may treat it as WAIVED subject to the timing rules in Rule 12

Question 33

does a plaintiff have to respond to affirmative defenses?

Answer 33

No! there is no need for the plaintiff to respond, as the allegations in the defendant's answer are deemed DENIED

Question 34

Amended Pleadings - Is there a right to amend?

Answer 34

a) By Plaintiff b) by defendnat

Question 35

when can a plaintiff have the right to amend their pleading?

Answer 35

a plaintiff has a right to amen her complaint ONCE no later than 21 days AFTER the defendant serves her first Rule 12 Response.

Question 36

when can a defendant have the right to amend?

Answer 36

a defendant has a right to amend his answer ONCE no later than 21 days of serving it

Question 37

can a defendant include omitted rule 12(b) waivable defense in amendment?

Answer 37

if D's first response was an answer - and they forgot to raise 'waivable defenses' and forgot to raise affirmative defense, they have a right to amend their answer to include the 'waivable defenses' and the affirmative defense.

Question 38

what are the parties options if the "right to amend" has expired?

Answer 38

after period to amend was of right has expired - the amending party MUST seek LEAVE OF COURT (or get WRITTEN CONSENT FROM OPPOSING PARTY)

Question 39

when will a court grant leave to amend?

Answer 39

if "justice so requires" factors to look at: length of delay, prejudice to other party, and futility of amendment.

Question 40

How can a party amend at trial?

Answer 40

through VARIANCE - which comes up when the evidence at trial does not match what was pleaded. (i.e. P sues D for breach of contract; and at trial P introduces evidence that D assaulted her)

Question 41

what happens if the other party fails to object to variance at trial?

Answer 41

the party introducing the evidence may move to amend the complaint to conform to the evidence (and the evidence gets admitted). If d did object - evidence would not be admitted because it is at variance with the pleading.

Question 42

what happens if the other party fails to object to variance at trial?

Answer 42

the party introducing the evidence may move to amend the complaint to conform to the evidence (and the evidence gets admitted). If d did object - evidence would not be admitted because it is at variance with the pleading.

Question 43

How to amend after STATUTE OF LIMITATIONS (SOL) has run? (RELATION BACK DOCTRINE)

Answer 43

There are 2 types of amendments (where the relation back doctrine applies) a) to join a CLAIM not originally asserted b) to change a DEFENDANT

Question 44

what is the RELATION BACK doctrine?

Answer 44

The amended pleading is treated AS IF FILED on the date that the ORIGINAL pleading was filed (to avoid a statute of limitations issue)

Question 45

a) to join a claim not originally asserted + relation back doctrine

Answer 45

an AMENDED pleading "relates back" IF the pleading concerns the SAME CONDUCT, TRANSACTION, OR OCCURRENCE, as the original pleading (the pleading that is being amended) if it is not related - it will not relate back

Question 46

b) to change a defendant + relation back doctrine

Answer 46

the amendment will relate back if: 1) the amendment concerns the SAME CONDUCT, TRANSACTION, OR OCCURRENCE as the original 2) the defendant had such KNOWLEDGE of the case such that she will be able to AVOID PREJUDICE; AND 3) the defendant KNEW or SHOULD HAVE known that, BUT FOR A MISTAKE, she would have been named originally. **basically applies when P sued wrong D first and the right D knew about it

Question 47

when must the D's knowledge reference in the 'amendment to defendant' arise?

Answer 47

the knowledge must have come within the period of SERVICE OF PROCESS (90 days after the filing of the complaint)

Question 48

what are Supplemental Pleadings

Answer 48

Supplemental Pleadings set forth things that happened AFTER the pleadings were filed

Question 49

is there a right to file a supplemental pleading?

Answer 49

NOPE! there is no right to file a supplemental pleading -- you MUST make a MOTION (and whether it is granted or not is within the discretion of the trial court)

Question 50

what is the safe harbor provision?

Answer 50

If the other party violates Rule 11 - the opposing party CANNOT immediately file a motion for sanctions. Rather - she serves the motion on other parties - but does not file it with the court yet. **the party in violation has a SAFE HARBOR OF 21 DAYS in which to fix the problem and avoid sanctions. If they do not do so - then the motion can be filed with the court.