Pleadings, Default, challenge, sanctions Flashcards
FRCP 8 (a) Claim for relief
Claim for relief must contain
1.) A short and plain statement of the grounds for the courts jdx, unless the court already has jdx and the claim needs not new jdx
-e.g. counterclaim, court already has jdx
2. ) A short and plain statement of the claim showing that the pleader is entitled to relief; and
-ID elements of COA
-Set forth facts that satisfy elements of COA
- ) A demand for the relief sought; which may include relief in the alternative or different types of relief
FRCP 8(d) Pleading to be concise and direct; Alternative, Inconsistency
-In general, each allegation must be simple, concise, and direct. No technical form is required
-Alternative statements: A party may set out 2 or more statements of claim or defense alternatively or hypothetically. If party makes alternative statements, pleading is sufficient if any one is sufficient
Inconsistent claims or defenses: a party may state as many separate claims or defenses as it has, regardless of consistency
FRCP 13 Compulsory counterclaim
A pleading must state as a counterclaim any claim –that at the same time of its service–the pleader has against opposing party
Arises out of the same transaction or occurrence that is subject matter fof the opposing party’s claim and
Does not require adding another party over whom the court cannot acquire jdx
FRCP 13: Permissive counterclaim:
A pleading may state a counterclaim against an opposing party any claim that is not compulsory (arises out of a different transaction/occurrence)
* Defendant not allowed to bring up unless there is SMJ
*No supplementary jdx applies, must meet AIC and have SMJ
FRCP 13: crossclaim against co-party
A pleading may state as a crossclaim any claim by one party against a coparty(co-defendant) if the claim arises out of the transaction/occurrence that is the subject matter of the original action or of a counterclaim. May include claim that the coparty is or may be liable to cross claimant for all or part of a claim asserted in action against crossclaim
Defendant options after complaint is filed
-Do nothing
-Challenge sufficiency of complaint MTD 12(b)(6)
-File answer: admit or deny, assert affirmative defenses (SOP/PJ/Venue, etc), counterclaim [separate], crossclaim [separate document]
-If court orders, respond to answer
FRCP 9 Fraud and Mistake
A party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally
-More details/specificity required, less allegation
-“Heightened pleading” standard
must allege more specifically when, where, and how the fraud was committed
-state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.
FRCP 12 (b)(6): Challenge sufficiency of claim with Iqbal/Twambly (plausible pleading) standard
Failure to state claim upon which relief can be granted
District court should disregard all conclusory allegations and, accepting all remaining allegations as true, decide whether the complaint states a plausible claim for relief.
Plead facts to nudge the claim “across the line from conceivable to plausible.”
A complaint contains enough factual allegations to show that the claimed violation is plausible, not just possible/ state a plausible claim for relief.
Plaintiff must allege D acts are more consistent wrongful/illegal conduct.
Factual allegations to support plausible inference of _______
Liberality in pleading
Liberality of pleading: want people to have their day in court and dont want to throw cases out for technicalities→ why pleadings don’t require too much specificity and parties are allowed to amend complaints
Default
Defendant is served with complaint and fails to file a response in any way that is permitted. They wait until time to answer expires (Federal: 21 days, State 30 days)
1.) Plaintiff must request to have default entered against defendant, not automatic: defendant can file answer until plaintiff enters default against defendant
2.) Plaintiff must give notice of default
3.) If default entered, must apply to court for judgment (“default judgment”)
4.) Legal effect: defendant can no longer participate in action unless they set aside judgment
FRCP 55: Entering a default
When a party asking for relief in a complaint has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default
(1) By the clerk: If sum of $ is certain [or can be made certain] by compilation and affidavits
If entered by clerk→ this is default judgment, no need to request from court
(2) By the court: in all other cases, the party must apply to the court for a default judgment. Party must be served w/ written notice of application w/in 7 days before the hearing .
(3) Setting aside default or default judgment: court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b)
Default judgment
After default is entered, plaintiff must request default judgment from court (another warning to defendant because party should not win on technicalities)
-Entered by clerk–on claims like credit card debt, and narrow group of cases
-Entered by court–not automatic: Uses affidavits, declarations, live testimonies if more evidence
Holds brief trial (most commonly on quiet title)
-If defendant has filed M2D but has not filed answer → No DEFAULT
-If defendant has served an answer but did not file it → DEFAULT allowed
FRCP 60 (b) set aside default judgement
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
1.) Mistake, inadvertence, surprise, or excusable neglect
2. )Newly discovered evidence
3. ) Fraud, misrepresentation
4.) Judgment is void – No SMJ
***Motion must be made:
Within reasonable time, or
No more than a year after entry of judgment
A judge can set conditions to grant motion, i.e reimburse plaintiff attorney fees for wasted time, file within 5 days, etc.
*CA if it was the lawyer’s fault the court has to set aside; motion must also include answer
“Under Rule 60, the court may set aside a default judgment if the judgment were entered as a result of defendant’s “mistake, inadvertence, surprise, or excusable neglect.” This rule is applied liberally to avoid forfeitures and to make sure that litigants have their day in court. A motion to set aside a default judgment under Rule 60 must be brought within a reasonable time, and in any case no later than one year after the default.”
Default jurisprudence - Philosophy (court factors for motion to set aside)
1.) “The law abhors forfeiture,” law favors full and hair hearings on the merits
2. ) Plaintiffs have a duty to prosecute and parties have a duty to follow the rules
3. ) Standard is “good cause”
4. ) If default entered but no judgment yet, move quickly +good reason, court likely to not enter judgment
Challenging in Federal Court
-Motion to strike 12(f): “Im not answering complaint until all offensive material is removed”
-Motion to dismiss 12(b)(6): failure to state a claim
-Motion for more definite statement 12(e): pleading is so vague or ambiguous that the party cannot reasonably prepare a response
-Answer (most common)- 8 (b)(c): admit/deny, raise affirmative defenses
-Counterclaim 13: “if you’re suing me, i am suing you”
