Pleadings

Question 1

What are the requirements of a complaint? (3)

Answer 1

1. Statement of grounds of subject matter jurisdiction
2. Short and plain statement of the claim
3. Demand for relief sought

Question 2

What is the standard for pleading?

Answer 2

Must plead facts supporting a plausible claim

(Judge uses his own experience and common sense to determine plausibility)

Question 3

What are three matters that must be pleaded with particularity or specificity?

Answer 3

1. Fraud
2. Mistake
3. Special damages

Question 4

Under Rule 12, how may a defendant respond to P’s pleading? (2 ways)

Answer 4

1. By motion OR
2. By answer

Question 5

How long does D have to respond to the complaint?

Answer 5

Within 21 days after service of process

Question 6

What motions can D make regarding the form of the pleadings? (2)

Answer 6

1. Motion for more definite statement (pleading too vague), OR
2. Motion to strike

Question 7

What are the Rule 12(b) defenses? (7)

Answer 7

(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) improper process
(5) improper service of process
(6) failure to state a claim
(7) failure to join indispensable party

Question 8

Which 12(b) defenses are waivable? (4)

Answer 8

(2) lack of personal jurisdiction
(3) improper venue
(4) improper process
(5) improper service of process

Question 9

When are the 12(b) defenses waived?

Answer 9

When waivable, they must be put in the first rule 12 response (motion or answer)

Question 10

What must the court do if it finds no subject matter jurisdiction?

Answer 10

As soon as Court finds no SMJ, it must dismiss.

Question 11

What two things must D do in the answer?

Answer 11

1. Respond to the allegations in the complaint
2. Raise affirmative defenses (otherwise waived)

Question 12

What are D’s options in responding to the complaint? (3 options)

Answer 12

1. Admit;
2. Deny; OR
3. State that she lacks sufficient information to admit or deny (has the effect of denial, but have duty to investigate)

Question 13

What happens if D does not respond to a point in the complaint?

Answer 13

She is deemed to admit it EXCEPT damages

Question 14

What are the two types of claims between parties?

Answer 14

Counterclaim (2 types)

Cross-claim (check for SMJ for each new one)

Question 15

What are the two types of counterclaims?

Answer 15

Compulsory

Permissive

Question 16

What is a counterclaim?

Answer 16

A claim against the opposing party (usually by D against P) (check for SMJ for each new claim)

Question 17

How does D assert a counterclaim?

Answer 17

In D’s answer

Question 18

What does a party have to do after they are served with a counterclaim?

Answer 18

Respond under Rule 12

Question 19

How long does a party have to respond to a counterclaim?

Answer 19

21 days after service

Question 20

What is a compulsory counterclaim?

Answer 20

A counterclaim which arises from the same transaction or occurrence as P’s claim

Unless the claim was already filed in another case, it MUST be filed in the pending case or it is waived

Question 21

What is a permissive counterclaim?

Answer 21

Does not arise from the same transaction or occurrence

(D is not required to file in the case)

Question 22

What is a crossclaim?

Answer 22

Claim against a co-party

(Must arise from the same transaction or occurrence)

(Not compulsory)

Question 23

How can a party amend a pleading?

Answer 23

1. Right to amend
2. Variance
3. Amendment after statute of limitations has run (“relation back”)

Question 24

How long does P have a right to amend a pleading?

Answer 24

21 days after D serves first Rule 12 response

Question 25

How long does D have a right to amend the pleadings?

Answer 25

Once within 21 days of serving his answer

Question 26

What is a variance?

Answer 26

When the evidence at trial does not match what was pleaded-- If opposing party does not object to the evidence at trial, the complaining party will be allowed to amend the pleadings to conform to that evidence

Question 27

How can a party amend when there is no right?

Answer 27

Must seek leave of court

Question 28

What does a court consider in deciding whether to allow a party to amend the pleading?

Answer 28

If justice so requires (Generally not allowed when there is delay, prejudice, or futility of amendment)

Question 29

When can you join a new claim after statute of limitations has run?

Answer 29

If an amendment would “relate back” (Amendment "relates back" if it concerns the same conduct, transaction, or occurrence at the present case)

Question 30

When can you change a defendant after the statute of limitations has run?

Answer 30

When: 1. It concerns the same conduct, transaction, or occurrence; 2. The new party knew of this case within 120 days of its filing; AND 3. She also knew that, but for the mistake, she would have been named originally

Question 31

What are supplemental pleadings?

Answer 31

Pleadings that set forth things that happened after the pleading was filed

Question 32

Do parties have a right to file a supplemental pleading?

Answer 32

No, it’s always discretionary (But a court will often do so unless it will cause delay or prejudice)

Question 33

What things are certified in all signed documents (except discovery) under threat of Rule 11? (4 things)

Answer 33

1. The paper is not for an improper purpose 2. The legal contentions are warranted by law (or nonfrivolous arguments for change) 3. The factual contentions and denials have evidentiary support (or are likely to after investigation) 4. Continuing certification every time you present the position to the court

Question 34

Against whom may Rule 11 sanctions be ordered?

Answer 34

The party, the attorney, or the firm

Question 35

What is the purpose of Rule 11 sanctions?

Answer 35

To deter, not punish

Question 36

What is the process for Rule 11 sanctions by parties?

Answer 36

1. Opponent serves motion on other parties but cannot file it; 2. Party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions; AND THEN 3. If party in violation does not remedy the problem, the motion can be filed

Question 37

What is the process for Rule 11 sanctions by the court?

Answer 37

Rule 11 sanctions may be raised sua sponte --\> Court issues “show cause” order why sanctions should not be imposed --\> Court must give you a chance to be heard before sanctioning

Question 38

How long does a party in violation have to fix the Rule 11 problem?

Answer 38

21 days to fix the problem and avoid sanctions

Question 39

What is a Rule 11 motion?

Answer 39

Motion against a party for submitting pleadings for an improper purpose or which contain frivolous arguments or arguments that have no evidentiary support.

Question 40

What is a 12(b)(6) motion?

Answer 40

Motion to dismiss for failure to state a claim upon which relief can be granted