Pleadings and Motions

Question 1

Pleadings - Concept

Answer 1

Formal document where party to legal proceeding sets forth or responds to allegation, claims, denials, defenses

Question 2

Pleadings - Submission - Day deadlines - gral Rules

Answer 2

• Period begins day after order and includes weekends and holidays
• Submission electronically allowed - Submission until midnight of last day
• Extension is possible if required before expiration

Question 3

Pleadings - Submission - Day deadlines - Permitted extension post expiration when (3):

Answer 3

Motion is submitted showing excusable neglect (Not party’s own carelessness, inattention, or willful disregard):

1) Bc of unexpected /unavoidable hindrance/accident
2) Bc of reliance on the care and vigilance of the party’s counsel
3) on a promise made by the adverse party

Question 4

Pleadings - Submission - Day deadlines - Prohibited extension cases (3)

Answer 4

1) JMOL (before submitted to jury or 28 days post entry judgment)
2) Motion for new trial (28 days post entry judgment)
3) Motion for relief from judgment (reasonable time or 1 year)

Question 5

Pleadings - Complaint - gral

Answer 5

• FR 3: civil action will commence with its filling
• Must be filled in court + signed by attorney
• P’s burden to obtain summons

Question 6

Pleadings - Complaint - Gral Content Rules

Answer 6

• Has to give enough notice to D of all material elements of each claim + facts/legal basis
• If corporate P, it must disclose all its related entities
• Any undisclosed claim can not be asserted at trial
• These rules apply even for “notice pleading”

Question 7

Pleadings - Complaint -“Notice Pleading”

Answer 7

• Liberal application of FR 8 - Just general plausible allegation
• Gral dx’s OK : i.e. pain and suffering
• Court usually allows leave to amend when required by justice
• Doesnt apply to special pleading matters

Question 8

Pleadings - Complaint - Content - JARR

Answer 8

1) Jdx: Pjdx and SMJ
2) Allegation of facts: that generate plausibility of claim
3) Right to relief - legal theory - basis of claim + specific statute referred to.
4) Relief (remedy) request: specific

Question 9

Pleadings - Complaint - Joinder of claims - gral

Answer 9

• When P has mx claims/theories in a single complaint
• Even when arising from different transactions of events
• Court can separate bc of convenience, judicial economy or to avoid prejudice

Question 10

Pleadings - Complaint - Single Complaint Rule

Answer 10

When claim arises from single transaction or event

• No “spiting claims” possible

Question 11

Pleadings - Complaint - Single Complaint Rule - Effect of “claim splitting”

Answer 11

• Preclusion affects second claim in relation to judgment of second claim

Question 12

Pleadings - Pre Answer Motions to dismiss - Gral

Answer 12

• FR 12 - No need for “special appearance” by D
• Any deficiency of the complaint is not waived by presenting this motion
• If presented D must allege all possible defenses under FR12 once - if not they are barred for later motions
• Court can recharacterize wrongly labeled motion to make it propert

Question 13

Pleadings - Pre Answer Motions to dismiss - (5)

Answer 13

1) Lack of jdx
2) Insufficient Service
3) Failure to join a party
4) Improper venue
5) Failure to state claim upon which relief can be granted (12b6)

Question 14

Pleadings - Answer - Concept

Answer 14

D’s first pleading that addresses the merits of the case setting forth defenses and counterclaims

Question 15

Pleadings - Answer - Timing

Answer 15

• Gral Rule: 21 days from service /60 days if outside of the US
• When waiver of service: 60/90 days

Question 16

Pleadings - Answer - Content (3)

Answer 16

1) Gral denials of allegations - enough if no further actual knowledge about claim
2) Affirmative defenses - expressly and specifically pleased
3) Counterclaims

Question 17

Pleadings - Post Answer (or with) Motions to dismiss - (2)

Answer 17

1) Summary judgment motion (requires affidavit of support)
2) Judgment on the pleadings (12c)

Question 18

Pleadings - Special Matters Pleading - Gral

Answer 18

• Pleaded with particularity (ojo in relation to notice pleading)
• Must include detail on relevant facts, time/place and condition precedent, and foreign laws
• Special dx specified (i.e. medical expenses, lost profits)
• Also details on affirmative defenses (assumption of risk, contributory N, comparative fault, fraud, SOL)

Question 19

Pleadings - Special Matters Pleadings (4) FMBD

Answer 19

1) Fraud
2) Mistake
3) Breach of trust
4) Denial of contract capacicty

Question 20

Pleadings - Formal and substantial requirements - FRCP 11

Answer 20

• Signature by attorney on record
• Not frivolous - r_easonably grounded_ in fact and warranted by law/Good Faith.
• If to extend or modify law it must have enough arguments

Question 21

Pleadings - FRCP 11 Sanctions for frivolous pleading

Answer 21

• Attorney/law firm sanctioned
• When fails to make reasonably inquiry of facts or legal merits

Question 22

Pleadings - Challenge to pleadings - Gral

Answer 22

- gral rule: By Rule 12 motions to dismiss, but also possible w/answer

• • most of them dont address facts, BUT rather whether law allows the specific claim or defenses

Question 23

Pleadings - Challenge to pleadings - Rule 12 motions to dismiss (8)

Answer 23

1- Lack of PJDX or SMJ (12b)

2- Improper venue (12b)

3- Insufficient process (12b)

4- Insufficient service of process (12b)

5- Failure to to state claim (12b6)

6- failure to join parties (12b)

7- Judgment on pleadings (12c)

8- Motion to strike - invalid defenses OR redundant/impertinent/scandalous matters (12f)

Question 24

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Gral

Answer 24

• Is used as quick/easy way for D to avoid claim when is CLEAR will never prevails
• -i.e. SOL, claims not recognized under substantial law of the jdx
• Claim being too vague is grounds

Question 25

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Standard applied by court when deciding

Answer 25

Strict scrutiny * - rarely granted * - avoid risk of denying P's day in court

Question 26

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Rule regarding factual allegations

Answer 26

- Factual allegations in claim are deemed truth - BUT P must prove claim is factually possible

Question 27

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Rules for ammendment

Answer 27

Allowed by court in lieu of dismissal - usually when P might be able to include a new or additional cause of action

Question 28

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Conversion to motion for summary judgment

Answer 28

- When parties introduce matters outside of pleadings in motion (all docs considered in motion wont trigger conversion) - Court can allow conversion to consider this extrinsic E, to allow discovery - When docs are referred to but not attached to pleading, court will consider them only if they are integral to the case to maintain motion 12b6 as such

Question 29

Pleadings - Challenge to pleadings - Rule 12 - Motion for judgment on the pleadings (12c)

Answer 29

- Under similar standard of scrutiny as 12b6 - By P in response to D's answer, after closing of pleadings (different from 12b6 in that is not by D in response to P initial complaint)

Question 30

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Gral

Answer 30

- Some defenses ( as motions) must be raised timely and consolidated - IF NOT deemed waived - in order to promote judicial economy

Question 31

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules - Waived if not timely presented in D's answer (4)

Answer 31

1) Lack of PJDX 2) Insufficient Services 3) Lack of MC 4) Improper Venue

Question 32

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules for Lack of SMJ motion

Answer 32

Can be presented at any time - even post judgment -no consolidation or waiver possible

Question 33

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules for Lack of PJDX and Improver Venue

Answer 33

- If challenge by pre-answer motion or in motion: need for consolidation along all other defenses * - if not presented then deemed as waiver - When in answer: P is entitled to wait and file motion for improper venue later, having more time to investigate and draft motion

Question 34

Pleadings - Counterclaims - gral

Answer 34

- Claim by a D opposing the claim of the P and seeking some relief from the P for the D. (Cause of action D vs P) - 2 types: compulsory and permissive - P claim tolls SOL on any D's claim (avoid for P to wait until last minute to prejudice D)

Question 35

Pleadings - Compulsory Counterclaims

Answer 35

- When claim arise from same transaction/occurrence as P's claim

Question 36

Pleadings - Permissive Counterclaims

Answer 36

- When claim arises from different set of facts

Question 37

Pleadings - Crossclaims

Answer 37

- By D vs other potential co-D - Arises from same transaction/occurrence as P's original claim - Always permissive - never compulsory

Question 38

Amended Pleadings - Allowed Types (2)

Answer 38

1) As a matter of right 2) By leave of court OR written consent of the other party

Question 39

Amended Pleadings - As a matter of right - Timing (2)

Answer 39

- Once before responsive pleading is served - answer (not pre answer motion) OR - Within 21 after service if no responsive pleading is permitted OR not yet on trial calendar

Question 40

Amended Pleadings - By leave of court/written consent of party - BUUF conditions for not-admitance

Answer 40

1) Bad Faith 2) Undue delay 3) Unfair prejudice 4) Futility + Court attitude towards amendment: Better chances adding defenses/claims (causes of action) than adding parties

Question 41

Amended Pleadings - By leave of court/written consent of party - Special rule for Rule 12b6- Motion to dismiss for failure to state a claim

Answer 41

Court can allow P to amend in lieu of dismissal WHEN is possible for P to include new or additional cause of action

Question 42

Amended Pleadings - "Relate back" - Gral

Answer 42

- For purposes of SOL amended pleading is treated as it occurred at time of original pleading filing - Specific treatment if new claim/defense or new party - If new party added it can potentially alter diversity for federal SMJ

Question 43

Amended Pleadings - "Relate back" - When new claim/defense

Answer 43

Relates back if it new claim/defense arises _from similar transaction/occurrence_ - _even_ if reason for amendment is excusable neglect or as conscious trial strategy

Question 44

Amended Pleadings - "Relate back" - When new party (3 conditions)

Answer 44

1) New party arises from similar facts as original pleading 2) Added Party receives due notice 3) Not unfair - that new party knew or had known of possible action vs them if not for mistaken identity

Question 45

Amended Pleadings - "Relate back" - When new party - Prohibition

Answer 45

When amendment is because of inexcusable neglect or trial strategy

Question 46

Appearance and Default - Gral

Answer 46

- If D doesn't answer within set period (21-60 - 60/90) + P entitled to default judgment - No notice required for D, UNLESS D has appeared in court, then 7 days at least prior to audience, time in which D can prevent by filing and serving answer to motion

Question 47

Appearance and Default - D "Appearance" when (3)

Answer 47

1) Filing answer 2) Filing/serving notice of appearance 3) Involved in informal negotiations when aware of claim and w/intention to defend himself.

Question 48

Appearance and Default - Default Judgment Effects

Answer 48

- D is deemed to have admitted truth of P's claims by not contesting them - NO BURDEN OF PROOF for P - Prevents default party from presenting defenses and/or compulsory counterclaims - Generates Preclusion if court had jdx and D received notice and had opp to appeal.

Question 49

Appearance and Default - Default Judgment - Amount Determination

Answer 49

- If unliquidated, court might require hearings or other proceeding to establish - Rarely more than requested

Question 50

Appearance and Default - Default Judgment - Prohibitions vs (3) MIM

Answer 50

1) Minors 2) Incompetents 3) Member of military

Question 51

Default Judgment - Motion to vacate - gral

Answer 51

- aka "motion for relief from judgment", "motion to vacate judgment". - As challenge of default judgment for "good cause" or "just cause" - After default judgment is entered by court

Question 52

Default Judgment - Motion to vacate - Causes (2)

Answer 52

1) For lack of PJDX 2) Other - based on D's "admission of error" (i.e. lose summons, fail to retain counsel, etc) - "JUST cause"

Question 53

Default Judgment - Motion to vacate - For lack of PJDX

Answer 53

- Filed within reasonable time from entered default judgment - No need to defend on merits of cause -i.e. P used substitute service w/o using due diligence to locate D

Question 54

Default Judgment - Motion to vacate - For Other reasons (non jdx) - Court considerations (4)

Answer 54

1) Meritorious defense: has D plausible defense on the merits? 2) Reason for D's non-appearance: i.e. misunderstand/miscommunication w/clients, attorney ,etc 3) D's diligence on vacating default judgment 4) Effect upon P - prejudice by vacating -i.e. so much time passed crucial E no longer available

Question 55

Pleadings - Submissions - Extension

Answer 55

Possible only when requested before original period expires

Question 56

Pleadings - Complaint - Gral Content Rules - Consequence of not including claim

Answer 56

Can not be asserted in trial

Question 57

Pleadings - Complaint - Counterclaim - SOL rules

Answer 57

P claim tolls SOL on any D's claim (avoid for P to wait until last minute to prejudice D)

Question 58

Default Judgement - Burden of proof for P

Answer 58

NONE - failure to answer by D is deemed as admission to the truth of P's claims

Question 59

Default Judgment - Default

Answer 59

- Entered by county clerk - Can be set aside by "good cause"