Pleadings (Module 7) Flashcards
(14 cards)
What’s Contained in a Complaint
- Grounds of SMJ
- Short and plaint statement showing P is entitiled to relief (sufficient facts to support plausible claim)
- Demand for relief
Special Pleading Requirements for Certain Cases
- Fraud
- Mistake
- Special Damages
* Must be stated with particularity or specificity
Response
D must respond by motion or answer within 21 days (60 days if D waived service)
Motions Adress Issues of Form
A Rule 12(e) motion for more definite statement is used when the complaint is so vague or ambiguous the defendant simply cannot respond; must make this motion before answering;
A Rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading (that is, a complaint, an answer, etc.); and
* Any party can move to strike (for example, a defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative defense).
Waivable Defenses Under Rule 12(b)
- A lack of personal jurisdiction;
- Improper venue;
- **Improper process **(a problem with the papers); and
- Improper service of process.
Waived if not put in the first Rule 12 response (motion or answer).
Rule 12(b) Defenses that can be Raised Later
- A failure to state a claim and a failure to join an indispensable party. These motions can be made as late as at trial.
- A lack of subject matter jurisdiction may be raised at any time. Remember, a court without SMJ cannot act, so any act done without SMJ is void. Whenever the court determines that it has no SMJ, it must dismiss or remand if the case had been removed from state court.
Denial of Rule 12 Motion
Serve answer no later than 14 days after notice of the denial.
What’s included in the Answer
Response to allegations in complaint
* Admit
* Deny (failure to deny is an admittion, except for damages)
* Lack sufficient information (cannot use if the answer to the allegation is in your control)
* Raise affirmative defenses (all 12(b) defenses can be pled as affirmative defenses)
Amending Pleadings (as of right)
By Plaintiff:
* The plaintiff has a right to amend her complaint once as of course no later than 21 days after the defendant serves her first Rule 12 response.
By Defendant
* The defendant has a right to amend his answer once as of course no later than 21 days of serving it.
* May Include Omitted Rule 12(b) Waivable Defense in Amendment
* If the defendant’s first response was an answer, in which he forgot to raise “waivable defenses” and forgot to raise an affirmative defense, he has a right to amend his answer to include the “waivable defenses” and the affirmative defense.
Amendments after time to Amend Expires
- With court permission if justice so requires
- Allowed unless delayed too long, will prejudice other party, or would be futile
- Variance: Comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.
Amendment After Staute of Limitations has run (“Relation Back)
An amended pleading “relates back” if the pleading concerns the same conduct, transaction, or occurrence as the original pleading (that is, the pleading that is being amended). Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.
To Change a Defendant:
The amendment will relate back if:
* The amendment concerns the same conduct, transaction, or occurrence as the original
* The defendant had such knowledge of the case such that she will be able to avoid prejudice AND
* The defendant knew or should have known that, but for a mistake, she would have been named originally
The knowledge referenced in the last two points must have come within the period for service of process (90 days after the filing of the complaint). And, this provision applies when the plaintiff sued the wrong defendant first, but the right defendant knew about it.
Supplemental Pleadings
- Set forth things that happened after the pleadings were filed.
- There is no right to file a supplemental pleading.
- You must make a motion; whether that motion is granted is within the discretion of the trial court.
Rule 11 Signature Requirement*
Rule 11 applies to all papers except discovery (which are treated by a different, similar rule). When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
* The paper is not for an improper purpose;
* The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
* The *factual contentions and denials *of factual contentions have evidentiary support or are likely to after further investigation.
In addition, a party makes this certification every time she “presents” a position to the court (for example, when she later advocates a position taken in the document). It is a “continuing certification.”
Sanctions (Rule 11)
The purpose of sanctions is to deter a repeat of the conduct. If there is a violation, such as an assertion of a baseless claim, sanctions may be imposed against the party, the lawyer, and/or the lawyer’s firm. (As a general rule, a law firm is jointly responsible with its attorney who violates Rule 11.) The court can also raise Rule 11 violations “sua sponte” (on its own motion). The court does this by issuing an order to show cause why sanctions should not be imposed. But before imposing a sanction regardless of who filed the motion, the court must give the sanctioned party an opportunity to be heard.
a. Types of Sanctions:
* Often, courts impose non-monetary sanctions (such as requiring the lawyer to attend professionalism classes). Monetary sanctions, if imposed, are often paid to court, not to the other party.
b. Safe Harbor Provision:
* If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties but does not file it with the court yet. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed with the court.
