Pleadings Flashcards
(37 cards)
What must a complaint contain?
- Grounds for SMJ;
- Short and plain statement of claim showing P is entitled to relief;
- Demand for relief sought.
No need for PJ or venue.
A plaintiff must plead sufficient facts to support a….
Plausible claim
When a judge is determining whether a claim is plausible, they consider
their own experience and common sense.
What matters require more details or specifity in their complaints?
- Fraud;
- Mistake;
- Special Damages.
FRCP Rule 12 requires that a D respond by motion or answer within…
- 21 days after being served with process; OR
- Within 60 days from when the Plaintiff mailed service if service is waived.
Motions are not pleadings, they are…
requests for a court order.
When is a motion to strike brought?
When a party wants to strike immaterial or redundant statements in a pleading.
12f
When is a motion for a more definite statement brought?
When a complaint is so vague or ambiguous that a D cannot respond.
12e
What are the waivable defenses under FRCP Rule 12(b)?
(waived if not in first response)
- Lack of personal jurisdiction;
- Improper venue;
- Improper process;
- Improper service of process.
Which 12(b) motions can be raised as late as at trial?
(including as late as trial)
- Failure to state a claim; and
- Failure to join an indespensible party.
Can lack of SMJ be raised for the first time on appeal?
YES – an objection to SMJ can be raised at ANY TIME.
What must a D do if they file a 12(b)(6) motion before answering and it is denied?
D must file answer within 14 days.
What should be in a D’s answer?
- Responses to allegations of the complaint (admit, deny, state lack of sufficient information);
- Assertions of affirmative defenses (injects a new fact in the case).
Failure to deny an allegation is…
an admission.
What is never deemed admitted?
The amount of damages.
What are some affirmative defenses?
Statute of limitations, statute of frauds, res judicata, self-defense, all 12(b) defenses
If one fails to assert an affirmative defense in their answer, the court may treat it as a…
waiver of the defense.
A Plaintiff has a right to amend…
her complaint ONCE, no later than 21 days after the D serves its first Rule 12 response.
A Defendant has a right to amend…
his answer once, no later than 21 days after serving it.
If a Defendant’s first response was an answer, and he chooses to amend it, can he assert new Rule 12 defenses?
Yes, if he still has a right to amend.
How can one amend if the time to amend has expired?
- With court permission if justice so requires; or
- With written consent of opposing party.
When is permission to amend going to be denied by the court?
- If the party delayed too long;
- If it would prejudice the other party; or
- If the amendment would be futile.
Variance occurs when…
the evidence presented at trial does not match the pleadings.
If variance happens at trial and the opposing party does not object to the evidence being presented then…
the introducing party can move to amend the complaint to conform to the evidence.
