Pleadings and Motions

Question 1

Exceptions to the “short and plain statement” rule

Special pleadings

Answer 1

1. fraud or mistake
2. conditions precedent (the DENIAL must be made specifically, but may be alleged generally)
3. incapacity
4. special damages (like pain and suffering)
5. supporting document (must attach the doc)
   Also - statements as to the time and place of an action

Question 2

A complaint must include:

Answer 2

1. a short plain statement of the grounds for jdx (PJ and SMJ)
2. short plain statement of the ultimate facts, showing the pleader is entitled to relief
3. demand for judgment and relief sought

Question 3

An answer must:

Answer 3

either admit, deny, or respond without knowledge to the allegations of the pleading to which it responds

Question 4

If you state in an answer that you’re without knowledge:

Answer 4

it’s an implied denial

Question 5

If you fail to deny or allege insufficient knowledge in your answer:

Answer 5

it’s an admission. Except to damages

Question 6

Defenses alleged in an answer

Answer 6

Have to include affirmative defenses in the answer, otherwise they are waived.

Must be stated plainly and concisely, and must meet the substance of the allegations and denials.

Question 7

Timing of the answer

Answer 7

Have to file answer within 20 days of receiving service of process.

UNLESS - served by mail, then you get 60 days.

Question 8

Compulsory counterclaim

Answer 8

one that arises out of the same T/O as one of the π’s claims.
It MUST be brought, or else you forfeit it

Question 9

Permissive counterclaim

Answer 9

one that does NOT arise out of the same T/O as one of the π’s claims.
Do NOT have to bring it to avoid forfeiture

Question 10

In Florida, all cross-claims are:

Answer 10

PERMISSIVE

Question 11

Reply

Answer 11

A π’s response to what the ∆ has filed.

Question 12

Are replies required?

Answer 12

NO - not unless the answer or third-party answer contains an affirmative defense that the π seeks to avoid.

Question 13

Timing of a reply

Answer 13

20 days of the ∆’s filing

Question 14

The filing of a motion to dismiss suspends the time to file an answer until the resolution of the motion. T or F?

Answer 14

TRUE

Question 15

Standard of review for a motion to dismiss:

Answer 15

Must be denied UNLESS it appears beyond doubt that the π can prove no set of facts in support of his claim which would entitle him to relief

Question 16

Upon mtn to dismiss for failure to state a cause of action, the court MUST:

Answer 16

Construe the complaint in the light most favorable to the π and assume everything the π says is true

Question 17

If mtn to dismiss is granted, the court will usually allow the π to:

Answer 17

amend the complaint, either by filing a new and different complaint, or by simply tacking on a modified claim

Question 18

Defenses waived if not raised in the Answer, or Pre-answer motion:

Answer 18

PJ
Improper venue
bad service of process
bad process

Question 19

Bad process

Answer 19

when the process itself is insufficient

the rules are bad, violate Due Process

Question 20

Discretionary defenses, that you don’t lose if you fail to plead them at the outset

Answer 20

Failure to state a cause of action
Failure to join an indispensable party
AND
An objection of failure to state a legal defense

Question 21

Mtn for Judgment on the Pleadings

Answer 21

It’s made after the pleadings and all the mtns related to the pleadings are CLOSED, but within such time not to delay the trial.

Claims that based solely on the pleadings, the party is entitled to judgment as a matter of law

But like a mtn to dismiss for failure to state a claim

Question 22

Motion for a more definite statement

Answer 22

A way ∆ can respond to the pleading, if it’s so vague and ambiguous that the ∆ can’t even respond to it

Question 23

Mtn to Strike

Answer 23

Can move to strike from any pleading any redundant, scandalous, immaterial, or impertinent material

Does NOT toll the time to answer

Question 24

Can you make a verified motion to strike a sham pleading any time before the cause is set for trial?

Answer 24

YEP

Question 25

Third-Party Complaint (Impleader)

Answer 25

Allows a ∆ to bring another ∆ into the lawsuit, but ONLY IF the new ∆ is liable for some or all of the original ∆’s liability (get involved, share the load)

Cause of Action must be for:
1. contribution or indemnity
Contribution - between joint tortfeasors; Indemnity - insurers

Question 26

A third party ∆ may assert any defense it has against the original ∆. T or F

Answer 26

TRUE

Third-party ∆ may also assert claims against the original π, and gets the benefit of any defenses the original ∆ asserted

Question 27

Intervention

Answer 27

Where a non-party enters on his/her own accord

Question 28

In order to intervene, the non-party must be in a position that:

Answer 28

they will gain or lose by the effect of judgment. The suit will have to impact them in some way

Question 29

An intervenor has the status of a party, BUT:

Answer 29

They are subordinate to the main action, and he takes the action as he finds it

Question 30

Interpleader

Answer 30

Someone who’s stuck in the middle
Where a stakeholder, stuck between two competing interests, can have the court determine the stakeholder’s obligation. Like for life insurance policies.

Question 31

The order of Interpleader will require the stakeholder to:

Answer 31

Deposit the fund or property with the court, and the stakeholder will be dismissed as a party AND get reasonable attorney’s fees.

Question 32

How many times can you amend a pleading?

Answer 32

ONCE as a matter of course (before a responsive pleading is filed or the 20 day mark). If you want to amend AGAIN (or outside the time limit) then you need to petition the court to do so

Question 33

Timing for amending a pleading

Answer 33

Before a responsive pleading is filed.

OR if no responsive pleading is required - within 2 days of service of the pleading.

Question 34

Do you have to serve every paper filed in an action on every party to the action?

Answer 34

YES. Unless the court orders otherwise

Question 35

No service need be made on parties against whom a default has been entered, EXCEPT:

Answer 35

1. an action for a final hearing
2. a copy of the final judgment
3. an amended complaint

Question 36

If a pleading has been amended, how long do you have to respond to it?

Answer 36

10 days

Question 37

How to count timing for things?

Answer 37

Start counting the day AFTER the trigger date.

If served on March 1, and have 20 days to file answer, March 2 would be day one of twenty.

Question 38

If the amount of time is 7 days or more:

Answer 38

You count Saturdays, Sundays, and holidays.

If it lands on one of these^^ then time period will end on next business day

Question 39

If the amount of time is less than 7 days (6 or less)

Answer 39

Then you do NOT count Saturdays, Sundays, or holidays

Question 40

Do allegations of malice need to be stated BEYOND a short and plain statement of the facts?

Answer 40

NOPE. Don’t need to go into super detail with malice.

Question 41

When considering a motion to dismiss, the court will look at:

Answer 41

Just the pleadings