Pleadings

Question 1

What is the purpose of the complaint?

Answer 1

To begin the lawsuit and place the defendant on notice of the basis of the plaintiff’s claims

Question 2

What does Rule 8(a) require of a complaint?

Answer 2

1. Grounds for subject matter jx
2. Short and plain statement of the claim showing that the pleader is entitled to relief; and
3. A request for judgment and the type of relief sought

Question 3

How is sufficiency of the complaint analyzed in light of Rule 12(b)(6) motion to dismiss for failure to state a claim?

Answer 3

Two step analysis:
1. Determine which allegations are merely legal conclusions unsupported by facts. These are not entitled to the assumption of truth and should be disregarded.
2. Look at remaining allegations and determien whether, when accepted as true, they plausibly, more than possibly, state a claim for relief.

Question 4

What does Rule 8(d) govern? What does it allow?

Answer 4

Alternate and inconsistent allegations. A party can set out as many claims or defenses as they want even if they are inconsistent. If one alternarive statement is sufficient, the pleading is sufficient.

Question 5

What happens if all possible claims are not pled and the case is dismissed?

Answer 5

If all the possible claims are not pled, and the court dismsises based on one of the claims pled, the action cannot be brought again based on the unpled claims.

Question 6

What does Rule 9(b) govern?

Answer 6

Alleging fraud or mistake. Allegations must be stated with particularity. Malice, intent, knowledge and other conditoins of the mind may be alleged generally.

Question 7

What must the plaintiff state, at a minimum, when alleging fraud or mistake?

Answer 7

The time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby

Question 8

How long does a DF have to respond to the complaint? What rule?

Answer 8

12(a)(1): 21 days or 60 days if service waived

Question 9

What are the defendant’s options in responding to the complaint?

Answer 9

1. File one or more Rule 12(b) motions to dismiss (legal defects in complaint)
2. File an answer (argue on the merits)

Question 10

What happens if court denies DF’s Rule 12(b) motion? Rule?

Answer 10

Rule 12(a)(4)(A): DF has 14 days to file an answer after notice of the court’s action.

Question 11

What happens if the court grants DF’s Rule 12(b) motion?

Answer 11

PL usually granted leave to amend or the complaint is dismissed without prejudice (can be refiled)

Question 12

When must 12(b) and 12(c) motions be heard? Rule?

Answer 12

Rule 12(i): before trial

Question 13

What are the 12(b) motions?

Answer 13

1. Lack of subject matter jx
2. lack of personal jx
3. improper venue
4. insufficient process
5. insufficient service of process
6. failure to state a claim upon which relief can be granted
7. failure to join a party under rule 19

Question 14

What are two possible theories to support a 12(b)(6) motion?

Answer 14

1. Formal inadequacy: Complaint fails to provide the level of details required by Rule 8(a)(2), so the defendant is not proprerly put on notice
2. Substantive or legal inadequacy: Although complaint pleads some facts, those allegations, even if taken as 100% true, fail to say anything that would render the defendant liable

Question 15

What are limitations of arguments in Rule 12(b)(6) motions?

Answer 15

• All the facts in the complaint must be assumed true
• A DF cannot challenge the factual allegations of the plaintiff or offer an explanation or defense of his own actions
• The artument in the motion to dismiss is limited to challenging the allegations in the plaintiff’s complaint

Question 16

What does Rule 12(d) govern?

Answer 16

If motion is made under 12(b)(6) or 12(c), and information is offered beyond what is in the pleadings, the court will treat it as Rule 56 MSJ to give parties chance to present pertinent information

Question 17

What does a Rule 12(c) motion do? When might it come into play?

Answer 17

Motion for judgment on the pleadings. Filed after pleadings are closed but early enough not to delay trial. argues that information contained in the face of the pleadings entitles the moving party to judgment as a matter of law.

May come into wplay when the DF raises an affirmative defense.

Question 18

What does Rule 12(e) govern? when must it be filed?

Answer 18

Motions for more definitive statement. Whe DF claims the complaint is so vague or ambiguous that it canot reasonably respond. Motion must point out the defects complained of an the details desired.

Must be filed before the responsive pleading

Question 19

What does Rule 12(f) govern? How can a court execute? When is it available?

Answer 19

Motion to strike from a pleading an insufficient defence or any redundant, immaterial, impertinent or scandalous material

Court may strike by motion or sua sponte

Available if a pleading contains information that is false, non-germane, or inappropriate at the initial stage of litigation (ie PL attaches expert opinion to complaint)

Question 20

What does Rule 12(g) govern?

Answer 20

Joining motions. Generally any rule 12 motion acn be joined with any other rule 12 motion. However, a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. Except as provided in Rule 12(h)(2) or (3).

Question 21

What does Rule 12(h) govern?

Answer 21

Waiving and preserving certain defenses. Motions under (b)(2)-(5) are waived if not brought under 12(g)(2) or failing to make it by motion under this rule or including it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

12(b)(6)-(7) can be filed as late as trial

12(b)(1) is never waived and if court finds it lacks SMJ at any point, it must dismiss

Question 22

Complying with Rule 8(b)

Answer 22

• General denials for denying everything can result in sanctions if you don’t mean it
• DF goes through each paragraph and states whether the allegations are admitted or denied. If paragraph contains multiple allegations, must respond to each one
• Admitted allegations are taken as true for purposes of the litigation whether or not that is actually accurate

Question 23

Denials for lack of information? Rule?

Answer 23

Rule 8(b)(5): DF must actually lack the knowledge. It cannot just be the lawyer who lacks the knowledge, DF must also lack it.

Question 24

Improper denials

Answer 24

• Improper denials are treated as admitted
• It is improper to state “DF neither admits nor denies”
• It is proper to include objections to allegations, but an admission or denial must accompany or else it is improper
• Negative pregnant: Denial of some party such that denial is pregnant with possibility that allegation as a whole may be true
• Conjunctive: Denies A, B, and C, which indicates that maybe 1 or 2 of the 3 happened but not all 3

Question 25

What is an affirmative defense? What are the three common that we have enountered in class?

Answer 25

Affirmative defenses include (1) those that admit allegations of the complaint but suggest another reason why there should be no right of recovery and (2) those that concern allegations out of the plaintiff’s case and thus cannot be raised by a denial.

Contributory negligence, statute of limitations, waiver

Question 26

What happens if fail to plead affirmative defense?

Answer 26

The defense is waived

Question 27

What if a party mistakenly omits an affirmative defense?

Answer 27

May amend subject to Rule 15

Question 28

Must plaintiff respond to affirmative defenses?

Answer 28

No, but they can, typically with leave of court

Question 29

What does Rule 15(a)(1) govern?

Answer 29

Amendments as a matter of course. Party may amend pleadings once as a matter of course (no permission needed from court) (1) within 21 days of serving it or (2) within 21 days of receiving a required responsive pleading or Rule 12(b), (e), or (f) motion, whichever is earlier.

Question 30

What does Rule 15(a)(2) govern? How is it applied?

Answer 30

Amendments by leave of court. All other amendments may be made with either the other party’s written consent or leave of court.

Liberal standard applied. Presumption in favor of amendment unless opposing party provides a substantial reason not to. Burden is on opposing party to show prejudice.

Question 31

What are the factors the court may consider in denying a motion for leave to amend?(4)

Answer 31

1. Will the amendment substantially prejudice the defendant’s ability to prepare its defenses?
2. Are the new claims in the amended complaint of such a nature that the plaintiff probably should have asserted them in the original complaint?
3. Does the amendment appear to assert a legally insufficient claim (ie barred by SOL)?
4. Has the party already had opportunities to amend the complaint and failed to add the claim, even though it was available at the time?

Question 32

What does Rule 15(b) govern?

Answer 32

amendments during and after trial
1. Based on an objection at trial: objecting to profferred evidence not within issues raised in pleadings
2. For issues tried by consent: automatic amendment when evidence not within issues of pleadings is admitted without objection

Question 33

What does Rule 15(d) govern?

Answer 33

Supplemental pleadings. On motion, court may allow party to file supplemental pleadings setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. Court may order a response within a specified time.

Pertain to matters arising post-filing, as opposed to amendments, which pertain to changes that reflect pre-filing information

Do not relate back

Question 34

What does Rule 15(c) govern?

Answer 34

Relation back of amendments. Relation back is the idea that even though the amendment may bring a claim or party after the SOL has passed, it can relate back to the original date of filing.

Question 35

Adding a claim under Rule 15(c)

Answer 35

If adding a claim against the same defendant, the amendment will relate back so long as Rule 15(c)(1)(B) is satisfied: “arose out of the ocnduct, transaction, or occurence” in the original pleading. The test is whether there is a common core of operative facts uniting the original and newly asserted claims.

Question 36

Adding/changing parties under Rule 15(c)

Answer 36

If changing or adding parties, then (1) Rule 15(c)(1)(B) must be satisfied and (2) 15(c)(1)(C)(i) and (ii) must be met.

Question 37

Mistake requirement of Rule 15(c)(1)(C)(ii). What is permitted and not permitted?

Answer 37

The proper inquiry of the mistake requirement is not the plaintiff’s knowledge but whether the prospective defendant knew or should have known that, absent some mistake, the action would have been brought against him. A plaintiff can know about the existence of a party and still make a mistake with respect to that party’s identity. This rule does not permit a plaintiff to replae unknown parties with actual names.

Question 38

Leave to amend versus relation back

Answer 38

While a movant’s undue delay and dilatory motive may be appropriate in deciding whether to grant leave to amend under Rle 15(a)(2), it has no bearing on whether the amended complaint relates back. Once the trial court grants amendment, relation back is mandatory if the requirements of 15(c) are met.

Question 39

Who is potentially subject to Rule 11 sanctions?

Answer 39

Any lawyer whose name is on the document or the party itself

Question 40

What is the standard for nonfrivolous claims under Rule 11(b)(2)?

Answer 40

Whether a legal argument is “nonfrivolous” will be determined by an objective standard, although the extent of the litigant’s research and support found for the proporsed change in the law will be considered. Although arguemtns for a change of law are not required to be specificailly identified, a contention that is so identified should be viewed with greater tolerance under the rule.

Question 41

What is required for factual allegations under Rule 11(b)(3)?

Answer 41

There must be some basis for any factual allegations. An attorney is entitled to rely upon the objectively reasonable representations of the client. Counsel must either know of the evidence at the time of the filing or reasonably expect discovery of the evidence. “Evidentiary support” for allegations does not require that there be sufficient evidence for a party to prevail, only that the allegations are plausible.

Question 42

What is not permitted under Rule 11(b)(4)?

Answer 42

A defendant may not deny an allegation it knows to be true or without conducting a reasonable investigation as to the truth of the matter.

Question 43

What factors are considered in determining whether an inquiry was reasonable as required by Rule 11(b)? (5)

Answer 43

Requires and objective inquiry into the factual allegations of the complaint.
1. Whether the signer of the documents had sufficient time for an investigation
2. The extent to which the attorney had to rely on her client for the factual foundation underlying the filing;
3. Whether the case was accepted from another attorney;
4. The complexity of the facts; and
5. Whether discovery would have been beneficial to the development of the underlying facts.

Question 44

What if a filing contains statements that the attorney believed, at the time of filing and acter a reasonable inquiry, to be true, but that later turn out to be false?

Answer 44

The attorney will not be sanctioned for the original filing, but may be sanctioned for later advocating if after she has discovered it to be false.