Pleadings Flashcards
(17 cards)
Service of Process
Service of process refers to the delivery of the summons and complaint upon the defendant.
Injunction
An injunction is a form of equitable relief mandating that a defendant perform a specified act or prohibiting a defendant from performing a specified act. Rule 65 governs the issuance of an injunction.
Under Rule 65(d), every order granting injunctive relief must:
- State the reasons for its issuance
- Specifically state its terms and
- Specify the acts that the defendant is restrained from performing or required to perform.
Additionally, to protect the adverse party against harm from an erroneous grant of preliminary relief, the Rule expresses a preference for the moving party to post an injunction bond. Rule 65(c).
Mandatory Injunction
A mandatory injunction, which is a specific relief, requires a person to engage in an affirmative act that typically changes the status quo
Prohibitory Injunction
A prohibitory injunction, which is a form of preventive relief, restrains or prohibits a party from engaging in a specified behavior.
Temporary Restraining Order
A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction.
Preliminary Injunction
A preliminary injunction is a form of relief issued before a full hearing on the merits, but only upon notice to the defendant and a hearing on whether the injunction should issue.
Permanent Injunction
A permanent injunction is a judicial determination on the merits of an application for relief. Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution.
Complaint
The complaint is the initial pleading in an action filed by the plaintiff and serves as notice to the opposing party. Under Rule 8(a), a complaint (or any pleading in which a claim is made) is generally required to include:
- A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;
- A short and plain statement of the claim establishing entitlement to relief; and
- A demand for judgment for the relief sought by the pleader.
Motion Against the Complaint
Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion, or the defendant must seek additional time to answer. The defendant risks a default for failing to take one of these steps.
Motion to Quash
A motion to quash is a request that a court nullify or void a legal action, e.g., find that service of process was invalid or a subpoena was improperly issued.
Answer
An answer is a pleading by the defendant that responds to a plaintiff’s complaint. A plaintiff would also file an answer if responding to a defendant’s counterclaim.
Specific Denial
A specific denial is a denial of a particular paragraph or allegation in the complaint or other claim for relief (e.g., counterclaim, crossclaim, etc.).
General Denial
A general denial is a statement by a party that denies every allegation of the complaint.
Reply
A reply is a response by the plaintiff to a defendant’s answer that is required only if ordered by the court. It can also be a response by a defendant to a plaintiff’s counterclaim answer, a third-party answer, or a crossclaim answer.
Rule 11
Rule 11 establishes the standards that attorneys and individual parties must meet when filing:
- Pleadings
- Motions
- Other papers filed with the court
The Rule does not apply to mandatory disclosures and discovery requests, responses, and objections. Rule 11 provides for sanctions against parties, attorneys, and law firms for violations of the Rule.
Presenting
“Presenting” a pleading under Rule 11 includes “signing, filing, submitting, or later advocating” a position presented in the pleading. Rule 11(b).
