Pleadings

Question 1

Complaint requirements

Answer 1

Must state:

1. Grounds of federal jurisdiction
2. Short statement of claim showing that pleader entitled to relief
3. Demand for judgment for relief which may be made in the alternative

Facts must state plausible not just possible claim

Question 2

Complaint (Particularity & Specificity)

Answer 2

Fraud/mistake: must be stated with particularity

Time place averments: must be stated with specificity

Special damages: must be stated with specificity

Question 3

Pre-answer motions

Answer 3

Motion to dismiss

Motion for more definite statement

Motion to strike

Question 4

Motion to dismiss 12(b)

Answer 4

1. Lack of subject matter Jax(anytime)
2. Lack of personal jdx (waived if not raised by motion or answer whichever first)
3. Improper venue (waived if not raised by motion or answer whichever first)
4. Insufficiency of service Process (waived if not raised by motion or answer whichever first)
5. Insufficiency of Process (waived if not raised by motion or answer whichever first)
6. Failure to state a claim upon which relief can be granted (any time before trial or at trial)
7. Failure to join an (indispensable) party under rule 19 (any time before trial or at trial)

Question 5

Motion for more definite statement

Answer 5

Party may move for a more definite statement before responding to a pleading that is vague

Question 6

Motion to strike

Answer 6

Before responding to pleading, party may move to have stricken any insufficient defense or any redundant, immaterial or scandalous matter

Question 7

Answer

Answer 7

Must contain a specific denial or admission of each averment if the complaint, or general denial with specific admissions of the averments admitted may be made

If D is without knowledge or information sufficient to form belief statement to that effect constitutes a denial.

Failure to deny constitutes admission.

Must state any affirmative defenses D may have.

Question 8

Timing of Answer

Answer 8

If D makes no ore-answer motion, D who was formally served must present answer within 21 days after service

D who waived formal service must answer within 60 days after request for waiver was mailed to her

Question 9

Timing of Answer after pre-answer motion made

Answer 9

After pre-answer motion and court doesn’t fix a time, responsive pleas must be served within 14 days after courts denial or postponement of motion

After service of more definite statement, of court grants it answer due within 14 days

Failure to answer = default judgment

Question 10

Default

Answer 10

Notation in case file by court clerk that there has been no answer filed within the time permitted by the rules.

Default can be set aside by the court.

Requirements: court clerk must send all parties, including defaulting party, notice that default has been entered.

Question 11

Default Judgment

Answer 11

Judgment entered against D because he didn’t oppose the case.

Where defaulting party has appeared: entitled to notice at least 7 days prior to hearing on application for default judgment.

Once default judgment entered, D loses ability to content liability. BUT

D can appear at hearing and contest amount of damages.

Question 12

Default Judgment Entered By Clerk

Answer 12

On request by P, supported by affidavit as to amount due, clerk may sign and enter judgment for that amount and costs against D if:

1. P’s claim against D is for sum certain
2. Default was entered b/c D failed to appear
3. Defaulted D isn’t an infant or incompetent &
4. Damages amount requested is not greater than the amount requested in the complaint

REMEMBER: Notice required I’d D has appeared even though he hasn’t answered

Question 13

Setting aside default or default judgment

Answer 13

May be set aside for good cause shown - under Rule 60 relief of judgment

Majority of courts require D have meritorious defense

Question 14

Reply

Answer 14

Required to D’s answer upon court ordering P file one. Need not reply to affirmative defense automatically deemed to deny defense

Question 15

Inconsistent claims or defenses

Answer 15

Party may set out as many alternative claims or defenses he has regardless of consistency

Question 16

Amendment and Supplemental pleading

Answer 16

Pleading may be amended once within 21 days of its service or if pleading is one to which responsive pleading is required, 21 days after service of responsive pleading or pre-answer motion. Thereafter by consent or leave of court.

Question 17

Relation back

Answer 17

For SOL purposes, an amendment to a pleading that arises from the same conduct, transaction, or occurrence that was set forth in original pleading generally is deemed filed on the date the original pleadings were filed (assuming filed within SOL)

Question 18

Certification rule 11

Answer 18

Attorney by presenting to court a pleading, motion other paper, certified to best of her knowledge information and belief formed after an inquiry reasonable under the circumstances

1. Paper isn’t presented for improper purpose
2. Legal contentions warranted
3. Allegations have or upon investigation likely to have evidentiary support
4. Denials of factual contentions warranted

Question 19

Rule 11 sanctions

Answer 19

Court on its own initiative may order party to show cause why sanctions should not be imposed for violations or

Opposing counsel may serve sanctions motion on counsel and if counsel doesn’t withdraw or correct within 21 days opposing counsel may file motion with court.

Sanctions can be no monetary directives or penalties including payment of attorney fees invoked b/c improper conduct