Pleadings

Question 1

Burden of Production/Burden of Persuasion

Answer 1

party with burden of proof must have

SUFFICIENCY OF EVIDENCE as to each element to permit a REASONABLE FACT FINDER to find each element is true

Question 2

Burden of Proof?

Answer 2

Preponderance of the evidence = each element is more likely than not to be true

Question 3

Cognizability

Answer 3

whether the law will give relief is called a question of cognizability

Question 4

3 obligations to win civil litigation

Answer 4

initial pleadings must state “entitled to relief”
must meet production burden/present sufficient evidence;
must meet burden of persuasion/persuading fact finder each element is true

Question 5

Pleadings Standards

Answer 5

Conley - short and plain statement of claim;
Twombly - plausible
Iqbal - factual allegations that meet plausibility standard

Question 6

Pleadings Allowed

Answer 6

Complaint; Answer; Answer to Counterclaim; Answer to Crossclaim; Third-party complaint; Answer to 3PC; Reply to Answer if court orders

Question 7

Motions must:

Answer 7

be in writing; state with particularity teh grounds seeking the order; state relief sought

Question 8

Rule 8 - Complaint must contain:

Answer 8

Statement of SMJ;
short and plain statement FACTS supporting a PLAUSIBLE claim;
demand for relief

Question 9

Rule 9(b) heightened pleading burden for fraud or mistake

Answer 9

must plead with FACTUAL SPECIFICITY or PARTICULARITY for fraud/civil rights actions, etc.

Question 10

Defenses, Admissions and Denials

Answer 10

21 days to respond unless waived (then 60 or 90)
Response must:
short and plain in defenses to each claim;
admit or deny each allegation;
in whole or in part or state lack knowledge or information to form a belief;
if fail to deny, considered an admission

Question 11

Affirmative Defenses

Answer 11

MUST affirmatively state any avoidance or affirmative defense or will be barred, including:
contributory negligence; durress, estoppel, fraud, illegality, etc.

Question 12

Rule 10: Form of Pleadings

Answer 12

Caption;
Names of Parties;
Paragraphs; separate statements
adoption by reference; exhibits

Question 13

Anonymous Ps

Answer 13

Doe appropriate if necessary to protect privacy in a private matter
abortio, birth control, transsexuality; mental illness,etc
Rule does not apply to professional or economic life

Question 14

Rule 12: Defenses and Objections

Time to Answer?

Answer 14

21 days after service of complaint unless motion filed, then 14 days after ruling on motion

Question 15

Rule 12(b): Pre-Answer Motions

Answer 15

1. SMJ
2. PJ
3. 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 indispensable party

Question 16

Rule 12(c)

Answer 16

Motion for Judgment on the Pleadings: after pleadings are closed but early enough not to delay trial

Question 17

Rule 12(d)

Answer 17

Result of Presenting Matters Outside the Pladings - treated as MFSJ and all parties given reasonable opportunity to present pertinent aterial

Question 18

rule 12(e)

Answer 18

Motion for a More Definite Stmt: vague or ambiguous or party cannot reasonably prepare a resposne. must be filed before responsive pleading

Question 19

Rule 12(f)

Answer 19

Motion to Strike: court can act on its own or on motion

for insufficient defense or redundant, imaterial, impertinent, scandalous, etc.

Question 20

Rule 12(g)

Answer 20

Joining Motions: a motion under this rule may be joined with any other motion under Rule 12.
Limitations: a party making motion under this rule must not make another for rules 2-5

Question 21

Rule 12(h)(a)

Answer 21

Party waives 2-5 defenses by:
omitting from motion or
failing to make motion or inlude in responsive pleding or in amendment

Question 22

12(h)(b)

Answer 22

12(b)(6), 12(7) or failure to state legal defense may be raised:
in any pleading allowed;
by motion; or
by trial

Question 23

12(h)(c)

Answer 23

SMJ can never be waived

Question 24

Amended and Supplemental Pleadings. Rule 15(1)(a)

Answer 24

Party may amend pleadings once as a matter of course w/in:
21 days after serving original pleading; or
21 days after service of a responsive pleading or motion under rule 12(b)(e)or (f)

Question 25

Amended and Supplemental Pleadings: rule 15(1)(b)

Answer 25

if not amended as matter of course:
with opposing party’s written consent or court’s leave.
court should freely give leave when justice so required

Question 26

Why would court deny amendment as being not “required by justice”?

Answer 26

1. unreasonable delay in raising issue
2. have been prejudiced by delay
3. new issue raised i bad faith
4. new issue “futile” and cannot win

Question 27

Relation Back of Amendments - Rule 15(2)

When?

Answer 27

When SOL allows;
claim or defense arising out of same TOO
changes name of party AND
-same TOO
-4(m) 120 day filing:
-received constructive or implied notice and will not be prejudiced; and
-party knew or should have known

Question 28

TOO Test

Answer 28

Same Issues & Facts
Res Judicata
Same Evidence
Logical Relation

Question 29

Rule 11: Signing Pleading, et al.

Answer 29

Signature
rep to court certifying to best of your knowledge, info and believe, formed after a REASONABLE inquiry:
-no improper purpose
-claims warranted by existing law; or non-frivilous argument modifying existing law or establishing new law
-evidence to support facts
-denials are warranted on the evidence

Question 30

Rule 11(b) - sanctions

Answer 30

Serve motion but do not file.
Party has 21 days to correct (safe harbor rule)
Chaplin v. DuPont - it’s okay to have a bad purpose as long as there is a proper purpose as well

Question 31

Nature of Sanctions

Answer 31

purpose: to deter future conduct
may include nonmonetary directives
order to pay $ to court or movant
(don’t apply to discovery)