Pleadings and Motions

Question 1

What must be included in a complaint?

Answer 1

(1) short and plain statement of the grounds for jurisdiction;
(2) short and plain statement of the ultimate facts showing that the plaintiff is entitled to relief; and
(3) demand for judgment and relief

Question 2

What are the special pleading exceptions to the short and plain statement rule?

Answer 2

When you are pleading:

(1) incapacity: must be alleged using particulars that are within the pleader’s knowledge;
(2) fraud or mistake: must be pled specifically (use as much facts as you can);
(3) conditions precedent: may be alleged generally, but denying that a condition precent occurred must be pled specifically
(4) special damages: must be specifically stated, but dollar amounts aren’t required;
(5) supporting documents: if the claim is based on a contract/bond/note, the document must be attached

Question 3

When do you assert affirmative defenses?

Answer 3

In the answer or reply

Question 4

What defenses can be brought at any time in the initial action?

Answer 4

(1) failure to state a cause of action;
(2) failure to join an indispensable party; and
(3) objection of failure to state a legal defense

Question 5

What is a compulsory counterclaim?

Answer 5

Counterclaim by D against P that arises out of the same transaction or occurrence as the P’s claim - use them or lose them!

Question 6

What is a permissive counterclaim?

Answer 6

Doesn’t arise out of the same transaction or occurrence as the P’s claim

Question 7

What are the requirements for a cross-claim?

Answer 7

Must:

(1) arise out of the same transaction or occurrence as the original claim or a counterclaim; or
(2) relate to any property that is the subject of the original claim

Question 8

Are cross-claims permissive or discretionary?

Answer 8

Permissive

Question 9

What is a reply?

Answer 9

Required only if the answer contains an affirmative defense that the opposing party seeks to avoid

Question 10

When must a reply be filed (time)?

Answer 10

Within 20 days after service of the answer

Question 11

What is the standard of review for a M2D?

Answer 11

M2D must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief

Question 12

For a M2D based on failure to state a cause of action, how does the court construe the complaint?

Answer 12

In a light most favorable to the plaintiff

Question 13

When a M2D is filed, what happens to the time period to file an answer?

Answer 13

The M2D suspends the time to file an answer until the M2D is resolved

Question 14

What is a motion for judgment on the pleadings?

Answer 14

Analogous to a M2D, but made after the pleadings and all motions on the pleadings have closed. Claims that based solely on the pleadings, the party is entitled to judgment as a matter of law

Question 15

What is a motion for a more definite statement?

Answer 15

If the pleading is so vague or ambiguous that the party can’t reasonably respond

Question 16

What is a motion to strike?

Answer 16

A party can strike any redundant, immaterial, scandalous, or impertinent material. Doesn’t toll the time to answer.

Question 17

When can a verified motion to strike a sham pleading be made?

Answer 17

Any time before the cause is set for trial

Question 18

What are the three ways a non-party can be brought into an action?

Answer 18

(1) third party complaint (aka impleader)
(2) intervention
(3) interpleader

Question 19

What is a third party complaint (impleader)?

Answer 19

Current D sues a new party. The cause of action must be for indemnity, contribution, or subrogation

Question 20

In an impleader, what are the rights of the third party?

Answer 20

(1) can assert any defenses it has against the D
(2) both the original plaintiff and the third party D may file claims against each other
(3) the third-party D may assert defenses against the original plaintiff and gets the benefit of any defenses the original D could have claimed, even if they didn’t

Question 21

What is an intervention?

Answer 21

Where a non-party enters the lawsuit on its own initiative because they will gain or lose by the effect of the judgment

Question 22

What is the status of an intervenor?

Answer 22

Has the status of a party, but is subordinate to the main action. IOW, can’t re-argue things.

Question 23

What is an interpleader?

Answer 23

Where you are a stakeholder and multiple parties have claims against you. The people who have the claims against you can all be joined as defendants so the stakeholder isn’t exposed to multiple liability.

Question 24

What is the order or interpleader?

Answer 24

Requires the stakeholder to deposit funds or property into the court, be dismissed as a party, and be awarded reasonable attorneys fees and costs

Question 25

In FL, how must pleadings be served?

Answer 25

By email!!

Question 26

No service needs to be made on parties against whom a default judgment is entered except for 3 specific pleadings:

Answer 26

(1) action for final hearing
(2) copy of the final judgment
(3) amended complaint