Pleadings Flashcards
(36 cards)
Complaint
- Starts action
- states basis for courts jurisdiction
- basis for Plaintiff’s claim AND
- demand for relief
Complaint Requirements
- Statement of SMJ
- Short & Plain Statement of Claim showing entitlement for relief, and
- Historically - Prim. Function = Notice, Req. short & plain statement that gives notice & allows reasonable response
- Modern - ∏ must plead facts supporting a plausible claim
- Demand for relief sought
Service of Complaint
Plaintiff must serve summons & complaint within 90 days
Complaint - Special Matters
Must be pleaded with particularity if going to be raised at trial
- Fraud
- Mistake
- Special Damages - Damages that don’t normally flow from the event
- Conditions Precedent - Plaintiff must state generally that she complied w/ all cond. precedent
- Shifts burden to ▵ to identify conditions precedent that ∏ didn’t perform
Answer
Response to Plaintiff’s complaint
Answer - Requirements
- Respond to allegations of Complaint - ▵ states in short & plain terms defenses to each claim and:
- Admit
- Deny - Failure to deny is an admission (But not on damages)
- State lack of sufficient information to admit or deny - Not avail. if lacking info is in control of ▵ or is public knowledge
- Raise Affirmative Defenses - Must plead in answer of defense is waived
- Joinder of Claims
- Counterclaim - Against opposing party
- Impleader - ▵may implead 3d P they believe is liable to her for all of Plaintiff’s claims against ▵
Answer - Timing
Within 21 days of service of process OR within 14 days of denial of Rule 12 Motion
- Exception - Waiver of formal service of process ➞ 60 days
Motion (Rule 12)
Request for a court order (granted or denied)
- 12(e) Motion for more Definite Statement
- 12(f) Motion to Strike
- 2(b) - Motion to Dismiss
12(e) Motion for more Definite Statement
- If complaint is ambiguous, can only be made pre- answer
when is a 12(f) Motion to Strike appropriate
- Plaintiff included redundant, immaterial, impertinent, or scandalous material
2(b) Motion to Dismiss
Can be raised by motion or in the answer
- Lack of SMJ - Never waived can be raised anytime ➞ can be raised 1st time on appeal
- Lack of PJ - Can Waive, Must include in 1st response
- Improper Venue - Can Waive, Must include in 1st response
- Insufficiency of Process - Can Waive, Problem w/ summons itself, must include in 1st resp.
- Insufficiency of Service of Process - Can Waive, Prob. w/ manner of process, 1st response
- Failure to State a Claim - Can Raise anytime during trial
- Failure to join indispensable Party - can raise anytime during trial
Amended Pleadings - When?
Allowed one as matter of course b/f response or by leave of court (when justice so requires)
- Right to Amend as Matter of Course - Only Once within 21 days of serving the pleading
- Responsive pleading required - 21 days after service of responsive pleading or pre-answer motion
- After 21 Days ➞ Leave of court required
- At Trial - Amend. will aid the Merits, If no right to amend, it may be granted by express consent, implied consent, or by seeking leave of court
- Express Consent - Written consent of adverse party
- Implied Consent - If issue is brought up at trial & no objection
- Over Objection at Trial - Ct. has discretion to grant leave to amens so long as no display of delay or prejudice & Party is given notice & has ability to litigate
Amended Pleadings - Relation Back
Adding New Claim
(Avoids SOL problems) Amendment takes place after SOL has run, treats amended pleading as though it was filed with the original pleading
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Adding New Claim - If claim arose out of conduct, transaction, occurrence set forth in original pleading, amendment relates back to date of the original pleading
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Amended Pleading - Relation Back
Changing Defendant
Changing ▵ - Amended Party relates back if:
- Concerns the conduct, transaction or occurrence as original complaint
- New Party knew of the suit within 120 days of original claim, AND
- New party knew that but for the mistake, the new party would have been named originally
Rule 11
Pleadings (Not discovery documents) Must be signed by attorney or unrepresented party
Rule 11 - Effect of Signature
Makes signer responsible for the truthfulness of the allegations. Certifies that to the best of her knowledge, information, and belief formed after inquiry reasonable under the circ.
- Pleading has No improper Purpose - Harassment, cause unnecessary delay, increase costs of lit.
- Legal contentions warranted by existing law or by non frivolous argument for changing existing law or establish new law
- Factual contentions have or will have evidentiary support after further investigation or discovery
- Denials of factual contentions warranted by evidence or reasonable based on belief or lack of info
Rule 11 - Sanctions
After notice and reasonable opportunity to respond
- ct. determines Rule 11 was violated,
- ct. may impose sanctions on:
- attorney,
- firm, or
- party responsible for the violation
Rule 11 - Purpose of Sanctions
Deterrence, limited to what will deter repetition of the conduct by others in similar sit.
Rule 11 - Form of Sanctions
- Non-monetary directives,
- Pay fine to court, or
- If imposed on motion & its an effective deterrence, an order to pay moving party or all of reas. attorney fees & other expenses resulting from the violation
Rule 11 - Sanctions Procedure
Motion for Sanctions - Must be made separate from other motions & describe specific conduct that allegedly violated Rule 11
- Must be served on the other party
- 21 Day safe Harbor Provision - Can’t file if challenged paper, claim, defense or denial is withdrawn or corrected within 21 days after service or within another time set by the court
Sua Sponte (On Courts Initiative) - Court may order attorney, firm, party to show cause why conduct in order has violated Rule 11, no safe harbor provision
How long does a party have to unilaterally amend a complaint?
- W/in 21 days of filing
- If answer or motion to dismiss has been filed - w/in 21 days of that filing
How long does a party have to unilaterally amend an answer ?
w/in 21 days of filing it
What are the methods for amending a complaint?
- As a matter of right
- WIth permission
What are the ways to amend a complaint with permission ?
- Permission of the opposing party OR
- Permission of the court
