Pleadings & Motions Flashcards
(35 cards)
1
Q
Complaint
A
Initial pleading in a lawsuit, filed by P, which begins an action
Requirements — Complaint Must Contain:
-
(1) Statement of SMJ
- short & plain statement of grounds upon which the court’s Jxd depends — i.e., why court has Jxd
- P does not need to state grounds for PJ or Venue
- short & plain statement of grounds upon which the court’s Jxd depends — i.e., why court has Jxd
-
(2) Statement of the Claim
- a short & plain statement of P’s claim, showing entitlement to relief
- D can challenge the complaint by making a Rule 12(b)(6) motion
- Plausibility Standard
- Detailed facts not required — P must state facts / allegations supporting a plausible (not just possible) claim — i.e., sufficient for court to plausibly infer that D could be liable if allegations are true
- To determine plausibility, the judge uses his own experience and common sense
-
Certain claims / issues must be pleaded with Particularity / Specificity — details (time, place, etc) — including:
- (i) Fraud or Mistake
- (ii) Special Damages
- (iii) Judgments or official documents upon which pleading party will rely
-
(3) Demand for Judgment for Relief Sought
- Description of relief sought — e.g., money damages, injunction, etc.
2
Q
True or False
In the Complaint,
P must state grounds for PJ and Venue
A
False
Only:
- (1) Statement of SMJ
- (2) Statement of the Claim
- (3) Demand for Judgment for Relief Sought
Requirements — Complaint Must Contain:
-
(1) Statement of SMJ
- short & plain statement of grounds upon which the court’s Jxd depends — i.e., why court has Jxd
-
(2) Statement of the Claim
- a short & plain statement of P’s claim, showing entitlement to relief
- D can challenge the complaint by making a Rule 12(b)(6) motion
- Plausibility Standard
- Detailed facts not required — P must state facts / allegations supporting a plausible (not just possible) claim — i.e., sufficient for court to plausibly infer that D could be liable if allegations are true
- To determine plausibility, the judge uses his own experience and common sense
-
Certain claims / issues must be pleaded with Particularity / Specificity — details (time, place, etc) — including:
- (i) Fraud or Mistake
- (ii) Special Damages
- (iii) Judgments or official documents upon which pleading party will rely
-
(3) Demand for Judgment for Relief Sought
- Description of relief sought — e.g., money damages, injunction, etc.
3
Q
Claims / Issues
that must be pleaded with Particularity / Specificity
A
- Particularity / Specificity = details (time, place, etc)
- more detail than simply a short and plain statement (plausibility)
- Issues:
- (i) Fraud or Mistake
- (ii) Special Damages
- (iii) Judgments or official documents upon which pleading party will rely
____________________________________
Conditions Precedent
- Performance of conditions precedent may be alleged generally.
- Denial of performance or occurrence must be made specifically and with particularity.
Capacity
- Capacity or authority to sue or be sued need not be alleged.
- Person wishing to challenge a party’s capacity has the duty to raise the issue by specific negative averment, including such particulars as are within his knowledge.
Conditions of the Mind
- Malice, intent, knowledge, or other conditions of the mind may be averred generally.
Official Document or Act
- When dealing with an official document or act, it is sufficient to aver that it was issued or the act was done in compliance with the law.
Judgment
- It is not necessary to aver jurisdiction when a domestic or foreign court or a board or officer renders a judgment or decision.
Timing
- Time and place averments are material for the purpose of testing the sufficiency of a pleading.
____________________________________
Can challenge the complaint by making a Rule 12(b)(6) motion
c.f. Plausibility
- Detailed facts not required
- P must state facts / allegations supporting a plausible (not just possible) claim
- i.e., sufficient for court to plausibly infer that D could be liable if allegations are true
- To determine plausibility, the judge uses his own experience and common sense
4
Q
Plausibility Standard
A
Default Pleading Standard
- Detailed facts not required
- P must state facts / allegations supporting a plausible (not just possible) claim
- i.e., sufficient for court to plausibly infer that D could be liable if allegations are true
- To determine plausibility, the judge uses his own experience and common sense
Can challenge the complaint by making a Rule 12(b)(6) motion
-
Certain claims / issues must be pleaded with Particularity / Specificity — details (time, place, etc) — including:
- (i) Fraud or Mistake
- (ii) Special Damages
- (iii) Judgments or official documents upon which pleading party will rely
5
Q
Answer
A
Response to the complaint, in which D
- (1) Admits / Denies each count of P’s Complaint
- (2) States Defenses to each claim asserted
- Defenses can be pleaded in the alternative
- Ex — in breach of K claim — D can deny K existed — but also answer that if a K did exist, D performed under K
- Defenses can be pleaded in the alternative
Timing — must be filed:
- (1) within 21 days of service of process, or
- If D waives formal service, must answer within 60 days after the request for waiver was mailed to him
- (2) 14 days after a ruling on a Rule 12 motion
_________________________________
REQUIREMENTS — ANSWER MUST
(1) Respond to Allegations of Complaint
Available Responses:
- (a) Admit Allegations
- (b) Deny Allegations
- Failure to deny can constitute admission on any issue
- Except Damages
- Ex — In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” This constitutes an admission by D that he was intoxicated while driving.
- Failure to deny can constitute admission on any issue
- (c) Lack Sufficient Info to Admit or Deny Allegations
- Has the effect of a denial
- D can’t use it for anything within his control (e.g., if in D’s records must look it up)
(2) Raise Affirmative Defenses
Certain defenses are waived if not explicitly pleaded in answer — including:
- Contributory Negligence
- Claim Preclusion
- Statute of Frauds
- Fraud
- Self-Defense
- SOL
(3) Counterclaims
D’s claims against P may be
- required in D’s answer (compulsory), or
- brought separately (permissive)
6
Q
Answer
Timing
Must be Filed:
A
- (1) within 21 days of service of process, or
- If D waives formal service, must answer within 60 days after the request for waiver was mailed to him
- (2) 14 days after a ruling on a Rule 12 motion
(same timing applies to Counter-Claims & Cross-Claims)
____________________________________
Answer = Response to the complaint, in which D
- (1) Admits / Denies each count of P’s Complaint
- (2) States Defenses to each claim asserted
- Defenses can be pleaded in the alternative
- Ex — in breach of K claim — D can deny K existed — but also answer that if a K did exist, D performed under K
- Defenses can be pleaded in the alternative
____________________________________
REQUIREMENTS — ANSWER MUST
(1) Respond to Allegations of Complaint
Available Responses:
- (a) Admit Allegations
- (b) Deny Allegations
- Failure to deny can constitute admission on any issue
- Except Damages
- Ex — In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” This constitutes an admission by D that he was intoxicated while driving.
- Failure to deny can constitute admission on any issue
- (c) Lack Sufficient Info to Admit or Deny Allegations
- Has the effect of a denial
- D can’t use it for anything within his control (e.g., if in D’s records must look it up)
(2) Raise Affirmative Defenses
Certain defenses are waived if not explicitly pleaded in answer — including:
- Contributory Negligence
- Claim Preclusion
- Statute of Frauds
- Fraud
- Self-Defense
- SOL
(3) Counterclaims
D’s claims against P may be
- required in D’s answer (compulsory), or
- brought separately (permissive)
7
Q
If D made no Rule 12 motion,
how long will he have to serve his answer
A
- (1) within 21 days of service of process, or
- I_f D waives formal service_, must answer within 60 days after the request for waiver was mailed to him
- (2) 14 days after a ruling on a Rule 12 motion
(same timing applies to Counter-Claims & Cross-Claims)
____________________________________
Answer = Response to the complaint, in which D
- (1) Admits / Denies each count of P’s Complaint
- (2) States Defenses to each claim asserted
- Defenses can be pleaded in the alternative
- Ex — in breach of K claim — D can deny K existed — but also answer that if a K did exist, D performed under K
- Defenses can be pleaded in the alternative
____________________________________
REQUIREMENTS — ANSWER MUST
(1) Respond to Allegations of Complaint
Available Responses:
- (a) Admit Allegations
- (b) Deny Allegations
- Failure to deny can constitute admission on any issue
- Except Damages
- Ex — In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” This constitutes an admission by D that he was intoxicated while driving.
- Failure to deny can constitute admission on any issue
- (c) Lack Sufficient Info to Admit or Deny Allegations
- Has the effect of a denial
- D can’t use it for anything within his control (e.g., if in D’s records must look it up)
(2) Raise Affirmative Defenses
Certain defenses are waived if not explicitly pleaded in answer — including:
- Contributory Negligence
- Claim Preclusion
- Statute of Frauds
- Fraud
- Self-Defense
- SOL
(3) Counterclaims
D’s claims against P may be
- required in D’s answer (compulsory), or
- brought separately (permissive)
8
Q
Failure to deny an allegation in an Answer can ____
A
- *Constitute an Admission on Any Issue**
- *Except Damages**
Ex — In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” This constitutes an admission by D that he was intoxicated while driving.
Response to the complaint, in which D
- (1) Admits / Denies each count of P’s Complaint
- (2) States Defenses to each claim asserted
- Defenses can be pleaded in the alternative
- Ex — in breach of K claim — D can deny K existed — but also answer that if a K did exist, D performed under K
- Defenses can be pleaded in the alternative
Timing — must be filed:
- (1) within 21 days of service of process, or
- If D waives formal service, must answer within 60 days after the request for waiver was mailed to him
- (2) 14 days after a ruling on a Rule 12 motion
_________________________________
REQUIREMENTS — ANSWER MUST
(1) Respond to Allegations of Complaint
Available Responses:
- (a) Admit Allegations
- (b) Deny Allegations
- Failure to deny can constitute admission on any issue
- Except Damages
- Ex — In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” This constitutes an admission by D that he was intoxicated while driving.
- Failure to deny can constitute admission on any issue
- (c) Lack Sufficient Info to Admit or Deny Allegations
- Has the effect of a denial
- D can’t use it for anything within his control (e.g., if in D’s records must look it up)
(2) Raise Affirmative Defenses
Certain defenses are waived if not explicitly pleaded in answer — including:
- Contributory Negligence
- Claim Preclusion
- Statute of Frauds
- Fraud
- Self-Defense
- SOL
(3) Counterclaims
D’s claims against P may be
- required in D’s answer (compulsory), or
- brought separately (permissive)
9
Q
Certain defenses are waived
if not explicitly pleaded in answer — including:
A
- Contributory Negligence
- Claim Preclusion
- SOF
- Fraud
- Self-Defense
- SOL
Response to the complaint, in which D
- (1) Admits / Denies each count of P’s Complaint
- (2) States Defenses to each claim asserted
- Defenses can be pleaded in the alternative
- Ex — in breach of K claim — D can deny K existed — but also answer that if a K did exist, D performed under K
- Defenses can be pleaded in the alternative
Timing — must be filed:
- (1) within 21 days of service of process, or
- If D waives formal service, must answer within 60 days after the request for waiver was mailed to him
- (2) 14 days after a ruling on a Rule 12 motion
_________________________________
REQUIREMENTS — ANSWER MUST
(1) Respond to Allegations of Complaint
Available Responses:
- (a) Admit Allegations
- (b) Deny Allegations
- Failure to deny can constitute admission on any issue
- Except Damages
- Ex — In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” This constitutes an admission by D that he was intoxicated while driving.
- Failure to deny can constitute admission on any issue
- (c) Lack Sufficient Info to Admit or Deny Allegations
- Has the effect of a denial
- D can’t use it for anything within his control (e.g., if in D’s records must look it up)
(2) Raise Affirmative Defenses
Certain defenses are waived if not explicitly pleaded in answer — including:
- Contributory Negligence
- Claim Preclusion
- Statute of Frauds
- Fraud
- Self-Defense
- SOL
(3) Counterclaims
D’s claims against P may be
- required in D’s answer (compulsory), or
- brought separately (permissive)
10
Q
Answer & Counter-Claims
A
D’s claims against P may be
- required in D’s answer (compulsory), or
- brought separately (permissive)
Response to the complaint, in which D
- (1) Admits / Denies each count of P’s Complaint
- (2) States Defenses to each claim asserted
- Defenses can be pleaded in the alternative
- Ex — in breach of K claim — D can deny K existed — but also answer that if a K did exist, D performed under K
- Defenses can be pleaded in the alternative
Timing — must be filed:
- (1) within 21 days of service of process, or
- If D waives formal service, must answer within 60 days after the request for waiver was mailed to him
- (2) 14 days after a ruling on a Rule 12 motion
_________________________________
REQUIREMENTS — ANSWER MUST
(1) Respond to Allegations of Complaint
Available Responses:
- (a) Admit Allegations
- (b) Deny Allegations
- Failure to deny can constitute admission on any issue
- Except Damages
- Ex — In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” This constitutes an admission by D that he was intoxicated while driving.
- Failure to deny can constitute admission on any issue
- (c) Lack Sufficient Info to Admit or Deny Allegations
- Has the effect of a denial
- D can’t use it for anything within his control (e.g., if in D’s records must look it up)
(2) Raise Affirmative Defenses
Certain defenses are waived if not explicitly pleaded in answer — including:
- Contributory Negligence
- Claim Preclusion
- Statute of Frauds
- Fraud
- Self-Defense
- SOL
(3) Counterclaims
D’s claims against P may be
- required in D’s answer (compulsory), or
- brought separately (permissive)
11
Q
Rule 12 Motion
A
D may attack the validity of P’s complaint through a Rule 12 motion
_________________________________________
Rule 12(b) Defenses
(1) Lack of SMJ
(2) Lack of PJ *
(3) Improper Venue *
(4) Insufficiency of Process *
(5) Insufficiency of Service of Process *
(6) Failure to State a Claim
(7) Failure to Join a Necessary Party
_________________________________________
Other Rule 12 Motions
– – – – – – – – – – – – – – – –
Issues of Form
Motion for More Definitive Statement — Rule 12(e)
- If complaint is so vague or ambiguous that D cannot reasonably prepare a response — D may move for a more definitive statement from P
- Must be made before D files answer
- The opposing party has 14 days after notice of an order to obey unless the court fixes a different time. If not obeyed, the court may strike the pleading or issue any other appropriate order.
Motion to Strike — Rule 12(f)
- D may move to strike from the complaint — or court may strike on its own — any material that is:
- Redundant
- Immaterial
- Impertinent (Disrespectful), or
- Scandalous
- Any party can file
– – – – – – – – – – – – – – – –
Motion for Judgment on the Pleadings — Rule 12(c)
- Similar to Rule 12(b)(6) motion for Failure to State a Claim
- difference depends on timing
12
Q
12(b) Motion
A
- (1) Lack of SMJ
- (2) Lack of PJ **
- (3) Improper Venue **
- (4) Insufficiency of Process **
- something wrong with the documents (e.g., missing summons)
- (5) Insufficiency of Service of Process **
- (6) Failure to State a Claim
- (7) Failure to Join a Necessary Party
- includes necessary and indispensable parties
Subject to Waiver ***
- These defenses are waived if not included in D’s Rule 12 motion, provided they were available
- Rule 12(b) defenses may be raised by
- (a) motion or,
- (b) in the answer
- Must be filed before an answer if responsive pleading allowed
Non-Waivable
- Can be filed any time through trial — don’t need to be included in first Rule 12 response
- The last two defenses (if limited to failure to join an “indispensable party”) can be made at any time prior to trial or “at trial.”
- Motion to dismiss for failure to state a claim that raises issues outside of the pleadings will be treated as a motion for summary judgment.
- SMJ — never waived, and can be raised on appeal
_________________________________________
Other Rule 12 Motions
– – – – – – – – – – – – – – – –
Issues of Form
Motion for More Definitive Statement — Rule 12(e)
- If complaint is so vague or ambiguous that D cannot reasonably prepare a response — D may move for a more definitive statement from P
- Must be made before D files answer
- The opposing party has 14 days after notice of an order to obey unless the court fixes a different time. If not obeyed, the court may strike the pleading or issue any other appropriate order.
Motion to Strike — Rule 12(f)
- D may move to strike from the complaint — or court may strike on its own — any material that is:
- Redundant
- Immaterial
- Impertinent (Disrespectful), or
- Scandalous
- Any party can file
– – – – – – – – – – – – – – – –
Motion for Judgment on the Pleadings — Rule 12(c)
- Similar to Rule 12(b)(6) motion for Failure to State a Claim
- difference depends on timing
13
Q
Rule 12
Issues of Form
A
Motion for More Definitive Statement — Rule 12(e)
- If complaint is so vague or ambiguous that D cannot reasonably prepare a response — D may move for a more definitive statement from P
- Must be made before D files answer
- The opposing party has 14 days after notice of an order to obey unless the court fixes a different time. If not obeyed, the court may strike the pleading or issue any other appropriate order.
Motion to Strike — Rule 12(f)
- D may move to strike from the complaint — or court may strike on its own — any material that is:
- Redundant
- Immaterial
- Impertinent (Disrespectful), or
- Scandalous
- Any party can file
14
Q
if a pleading to which a responsive pleading is allowed is so vague or ambiguous that the party cannot reasonably prepare a response
a party may make a motion for _______
A
More Definitive Statement — Rule 12(e)
- If complaint is so vague or ambiguous that D cannot reasonably prepare a response — D may move for a more definitive statement from P
- Must be made before D files answer
- The opposing party has 14 days after notice of an order to obey unless the court fixes a different time. If not obeyed, the court may strike the pleading or issue any other appropriate order.
Motion to Strike — Rule 12(f)
- D may move to strike from the complaint — or court may strike on its own — any material that is:
- Redundant
- Immaterial
- Impertinent (Disrespectful), or
- Scandalous
- Any party can file
15
Q
- Through a ______ a party may move to ____ from a pleading — or court may strike on its own — any material that is:
- Redundant
- Immaterial
- Impertinent (Disrespectful), or
- Scandalous
A
Motion to Strike — Rule 12(f)
Motion for More Definitive Statement — Rule 12(e)
- If pleading is so vague or ambiguous that a party cannot reasonably prepare a response — party may move for a more definitive statement
- Must be made before D files answer
- The opposing party has 14 days after notice of an order to obey unless the court fixes a different time. If not obeyed, the court may strike the pleading or issue any other appropriate order.
16
Q
Effect of Failure to Answer
A
Default
17
Q
Counter-Claim
A
Offensive claim raised by D against P
- Only kind of claim that can be compulsory (i.e., can be waived if not brought)
- Jurisdictional Requirement
- D must ensure court has Jxd to hear any counterclaim
________________________________________
COMPULSORY VS PERMISSIVE
- If D’s claim arises from Same T/O as one of P’s claims — it is Compulsory, and must be filed in D’s answer (to complaint) or it will be waived (i.e., can’t assert in separate action)
Compulsory Counterclaim
- Claim by D against P that arises from the Same T/O as one of P’s claims
- When must be brought
- Must be filed in D’s answer or it will be waived — i.e., D cannot assert it in a separate action at a later time
Permissive Counterclaim
- Claim by D against P that does not arise from the Same T/O as any of P’s claims
- When must be brought — can be
- (1) Filed with D’s answer to P’s complaint, or
- (2) Asserted in a separate action filed by D
Hypo
Suit 1 — A v. B
- A sued B, but B moved to dismiss for improper service of process. Motion granted and case dismissed.
Suit 2 — B v. A
- B sues A for a claim arising from Same T/O as the one brought against B in the previous case
- B is not barred from suing A because of the compulsory counterclaim rule — B was not required to answer (because he got the case dismissed), so he was not required to assert the counterclaim
18
Q
Offensive claim raised by D against P
A
Counter-Claim
- Only kind of claim that can be compulsory (i.e., can be waived if not brought)
- Jurisdictional Requirement
- D must ensure court has Jxd to hear any counterclaim
________________________________________
COMPULSORY VS PERMISSIVE
- If D’s claim arises from Same T/O as one of P’s claims — it is Compulsory, and must be filed in D’s answer (to complaint) or it will be waived (i.e., can’t assert in separate action)
Compulsory Counterclaim
- Claim by D against P that arises from the Same T/O as one of P’s claims
- When must be brought
- Must be filed in D’s answer or it will be waived — i.e., D cannot assert it in a separate action at a later time
Permissive Counterclaim
- Claim by D against P that does not arise from the Same T/O as any of P’s claims
- When must be brought — can be
- (1) Filed with D’s answer to P’s complaint, or
- (2) Asserted in a separate action filed by D
Hypo
Suit 1 — A v. B
- A sued B, but B moved to dismiss for improper service of process. Motion granted and case dismissed.
Suit 2 — B v. A
- B sues A for a claim arising from Same T/O as the one brought against B in the previous case
- B is not barred from suing A because of the compulsory counterclaim rule — B was not required to answer (because he got the case dismissed), so he was not required to assert the counterclaim
19
Q
Claim by D against P
that arises from the Same T/O as one of P’s claims
Called What?
A
Compulsory Counterclaim
-
Must be filed in D’s answer or it will be waived
- i.e., D cannot assert it in a separate action at a later time
Counter-Claim
- Offensive claim raised by D against P
- Only kind of claim that can be compulsory (i.e., can be waived if not brought)
- Jurisdictional Requirement
- D must ensure court has Jxd to hear any counterclaim
________________________________________
COMPULSORY VS PERMISSIVE
- If D’s claim arises from Same T/O as one of P’s claims — it is Compulsory, and must be filed in D’s answer (to complaint) or it will be waived (i.e., can’t assert in separate action)
Permissive Counterclaim
- Claim by D against P that does not arise from the Same T/O as any of P’s claims
- When must be brought — can be
- (1) Filed with D’s answer to P’s complaint, or
- (2) Asserted in a separate action filed by D
Hypo
Suit 1 — A v. B
- A sued B, but B moved to dismiss for improper service of process. Motion granted and case dismissed.
Suit 2 — B v. A
- B sues A for a claim arising from Same T/O as the one brought against B in the previous case
- B is not barred from suing A because of the compulsory counterclaim rule — B was not required to answer (because he got the case dismissed), so he was not required to assert the counterclaim
20
Q
Compulsory Counterclaim (i.e., an offensive claim by D against P, arising from the Same T/O as one of P’s claims)
Must be brought when?
A
-
Must be Filed in D’s Answer or it will be waived
- i.e., D cannot assert it in a separate action at a later time
Counter-Claim
- Offensive claim raised by D against P
- Only kind of claim that can be compulsory (i.e., can be waived if not brought)
- Jurisdictional Requirement
- D must ensure court has Jxd to hear any counterclaim
________________________________________
COMPULSORY VS PERMISSIVE
- If D’s claim arises from Same T/O as one of P’s claims — it is Compulsory, and must be filed in D’s answer (to complaint) or it will be waived (i.e., can’t assert in separate action)
Permissive Counterclaim
- Claim by D against P that does not arise from the Same T/O as any of P’s claims
- When must be brought — can be
- (1) Filed with D’s answer to P’s complaint, or
- (2) Asserted in a separate action filed by D
Hypo
Suit 1 — A v. B
- A sued B, but B moved to dismiss for improper service of process. Motion granted and case dismissed.
Suit 2 — B v. A
- B sues A for a claim arising from Same T/O as the one brought against B in the previous case
- B is not barred from suing A because of the compulsory counterclaim rule — B was not required to answer (because he got the case dismissed), so he was not required to assert the counterclaim
21
Q
When must a Permissive Counterclaim
be brought?
A
can be
- (1) Filed with D’s answer to P’s complaint, or
- (2) Asserted in a separate action filed by D
Claim by D against P that does not arise from the Same T/O as any of P’s claims
Counter-Claim
- Offensive claim raised by D against P
- Only kind of claim that can be compulsory (i.e., can be waived if not brought)
- Jurisdictional Requirement
- D must ensure court has Jxd to hear any counterclaim
________________________________________
COMPULSORY VS PERMISSIVE
- If D’s claim arises from Same T/O as one of P’s claims — it is Compulsory, and must be filed in D’s answer (to complaint) or it will be waived (i.e., can’t assert in separate action)
Compulsory Counterclaim
- Claim by D against P that arises from the Same T/O as one of P’s claims
- When must be brought
- Must be filed in D’s answer or it will be waived — i.e., D cannot assert it in a separate action at a later time
Hypo
Suit 1 — A v. B
- A sued B, but B moved to dismiss for improper service of process. Motion granted and case dismissed.
Suit 2 — B v. A
- B sues A for a claim arising from Same T/O as the one brought against B in the previous case
- B is not barred from suing A because of the compulsory counterclaim rule — B was not required to answer (because he got the case dismissed), so he was not required to assert the counterclaim
22
Q
Cross-Claim
A
Offensive claim Asserted by a CO-PARTY
(D vs D) or (P vs P)
Requirements to be Brought
-
Same T/O
- Cross-claims must arise from the Same T/O as the underlying action
-
SMJ — must have independent basis for SMJ
- Cross-claims will almost always satisfy Supp Jxd requirements because they must arise from the Same T/O to be brought
Never Compulsory (Unlike Some Counter Claims)
- May assert it here or sue separately
- But — if party sues a co-party — any claim party may want to file against the other becomes a counterclaim
23
Q
Offensive claim asserted by a co-party
(D vs D)(P vs P)
Called What?
A
Cross-Claim
Requirements to be Brought
-
Same T/O
- Cross-claims must arise from the Same T/O as the underlying action
-
SMJ — must have independent basis for SMJ
- Cross-claims will almost always satisfy Supp Jxd requirements because they must arise from the Same T/O to be brought
Never Compulsory (Unlike Some Counter Claims)
- May assert it here or sue separately
- But — if party sues a co-party — any claim party may want to file against the other becomes a counterclaim
24
Q
When is a Cross-Claim Compulsory
(i.e., an offensive claim asserted by a co-party)
(D vs D) or (P vs P)
A
Never Compulsory
(Unlike Some Counter Claims)
- May assert it here or sue separately
-
But — if party sues a co-party
- any claim party may want to file against the other becomes a counterclaim
Requirements to Bring Cross-Claim
-
Same T/O
- Cross-claims must arise from the Same T/O as the underlying action
-
SMJ — must have independent basis for SMJ
- Cross-claims will almost always satisfy Supp Jxd requirements because they must arise from the Same T/O to be brought
25
_Requirements to bring a Cross-Claim_
(i.e., an offensive claim asserted by a co-party)
(D vs D) or (P vs P)
* _Same T/O_
* Cross-claims must arise from the Same T/O as the underlying action
* _SMJ_ — must have independent basis for SMJ
* Cross-claims will almost always satisfy Supp Jxd requirements because they must arise from the Same T/O to be brought
_**Never Compulsory** (Unlike Some Counter Claims)_
* May assert it here or sue separately
* But — if party sues a co-party — any claim party may want to file against the other becomes a counterclaim
26
Reply
Pleading by a P responding to affirmative defenses that are raised by D in an answer.
* Can only be filed if the court orders one.
* P need not reply to an affirmative defense
* P is deemed to deny or avoid the allegation of the defense
An answer to a counter-claim is due from P if the defendant’s answer asserts a counter-claim
27
Amendment of Pleadings
* Under Rule 15, parties may amend their pleadings once as a matter of course
* Additional amendments may be granted with consent of other parties or court permission (amendment without right)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_(Right to Amend) — Amendment as a Matter of Course_**
May occur either:
* (1) Within 21 days after service of that pleading, or
* If the pleading to be amended is one to which a responsive pleading is not required
* e.g., a reply or an answer not containing counterclaims
* (2) If the pleading is one which requires a response (complaint or an answer with counterclaims) — within 21 days of service of the response to that pleading by the other party — (e.g., a Rule 12 motion)
* _Amendment by P_
* If D responds to P's Complaint with a motion/answer, P has 21 days from receiving service of D’s response to amend complaint
* _Amendment by D_
* Right to amend will save waivable and affirmative defenses, and allow D to deny allegations
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Amendment Without Right_**
Party may only amend with either:
* (1) Written Consent of the Adverse Party, or
* (2) Leave of Court — i.e., court's permission
* Leave of court must be sought through a motion
* Leave will be granted freely when justice requires (lenient standard) — court looks to:
* (a) Delay that will be caused
* (b) Potential Prejudice to parties
* (c) Futility of amendment
* e.g., P wants to amend complaint to add a claim that the law doesn’t recognize
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**Timing of Response to Amended Pleading**
* Party has the longer of
* (a) 14 days from receipt of the amended pleading, or
* (b) the balance (i.e., days remaining) of the initial 21-day deadline
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Relation Back — Rule 15(c)_**
* Relation back doctrine applies when a party (seeks leave to) amend to change a pleading — in order to add a new claim or D — after SOL has run
* If allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed
* *_Requirements to Add:_**
(1) _New Claim_ — amendment to add new claim that was not originally asserted
* Amendment will relate back if the new claim *concerns the Same T/O* *or conduct* as the original pleading
* i.e., if the new claim is based on the same general set of facts as the original pleading
(2) _New or Substituted D_ — applies when P sued the wrong D first, but the right D was aware of the mistake
Amendment will relate back if:
* (1) Amendment concerns the *Same T/O or conduct* as original pleading, and
* (2) Within 90 days of filing of the original pleading, the New D
* (a) Knew of or received notice of action, and
* (b) Knew or should have known that, but for a mistake, he would have been named originally
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Variance_**
**Amendment of Pleadings to Conform to Evidence**
* Where the evidence at trial does not match what was pleaded
* A pleading may be amended during or after trial, or even after judgment, to conform to the evidence, reflect an issue actually tried by the express or implied consent of the parties, or permit the raising of new issues at trial.
* But — a party may not raise a new claim or defense for which the opposing party had no opportunity to prepare and which would result in prejudice in maintaining his action or defense.
Examples:
* P sues for breach of K. D answers. At trial, P introduces evidence that D assaulted him. D doesn’t object.
* Evidence of assault is admitted into evidence (because D didn’t object). At or after trial, P can move to amend the complaint to conform to the evidence. This ensures that the pleadings match what was actually tried.
* Same case, but D does object.
* Evidence of assault is inadmissible because it is “at variance with the pleadings.”
28
(Right to Amend) — Amendment as a Matter of Course
Under Rule 15, parties may amend their pleadings once as a matter of course
May occur either:
* (1) Within 21 days after service of that pleading, or
* If the pleading to be amended is one to which a responsive pleading is not required
* e.g., a reply or an answer not containing counterclaims
* (2) If the pleading is one which requires a response (complaint or an answer with counterclaims) — within 21 days of service of the response to that pleading by the other party — (e.g., a Rule 12 motion)
* _Amendment by P_
* If D responds to P's Complaint with a motion/answer, P has 21 days from receiving service of D’s response to amend complaint
* _Amendment by D_
* Right to amend will save waivable and affirmative defenses, and allow D to deny allegations
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Additional amendments may be granted with consent of other parties or court permission (amendment without right)
**_Amendment Without Right_**
Party may only amend with either:
* (1) Written Consent of the Adverse Party, or
* (2) Leave of Court — i.e., court's permission
* Leave of court must be sought through a motion
* Leave will be granted freely when justice requires (lenient standard) — court looks to:
* (a) Delay that will be caused
* (b) Potential Prejudice to parties
* (c) Futility of amendment
* e.g., P wants to amend complaint to add a claim that the law doesn’t recognize
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**Timing of Response to Amended Pleading**
* Party has the longer of
* (a) 14 days from receipt of the amended pleading, or
* (b) the balance (i.e., days remaining) of the initial 21-day deadline
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Relation Back — Rule 15(c)_**
* Relation back doctrine applies when a party (seeks leave to) amend to change a pleading — in order to add a new claim or D — after SOL has run
* If allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed
* *_Requirements to Add:_**
(1) _New Claim_ — amendment to add new claim that was not originally asserted
* Amendment will relate back if the new claim *concerns the Same T/O* *or conduct* as the original pleading
* i.e., if the new claim is based on the same general set of facts as the original pleading
(2) _New or Substituted D_ — applies when P sued the wrong D first, but the right D was aware of the mistake
Amendment will relate back if:
* (1) Amendment concerns the *Same T/O or conduct* as original pleading, and
* (2) Within 90 days of filing of the original pleading, the New D
* (a) Knew of or received notice of action, and
* (b) Knew or should have known that, but for a mistake, he would have been named originally
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Variance_**
**Amendment of Pleadings to Conform to Evidence**
* Where the evidence at trial does not match what was pleaded
* A pleading may be amended during or after trial, or even after judgment, to conform to the evidence, reflect an issue actually tried by the express or implied consent of the parties, or permit the raising of new issues at trial.
* But — a party may not raise a new claim or defense for which the opposing party had no opportunity to prepare and which would result in prejudice in maintaining his action or defense.
Examples:
* P sues for breach of K. D answers. At trial, P introduces evidence that D assaulted him. D doesn’t object.
* Evidence of assault is admitted into evidence (because D didn’t object). At or after trial, P can move to amend the complaint to conform to the evidence. This ensures that the pleadings match what was actually tried.
* Same case, but D does object.
* Evidence of assault is inadmissible because it is “at variance with the pleadings.”
29
Amendment Without Right
Party may only amend with either:
* (1) Written Consent of the Adverse Party, or
* (2) Leave of Court — i.e., court's permission
* Leave of court must be sought through a motion
* Leave will be granted freely when justice requires (lenient standard) — court looks to:
* (a) Delay that will be caused
* (b) Potential Prejudice to parties
* (c) Futility of amendment
* e.g., P wants to amend complaint to add a claim that the law doesn’t recognize
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**Timing of Response to Amended Pleading**
* Party has the longer of
* (a) 14 days from receipt of the amended pleading, or
* (b) the balance (i.e., days remaining) of the initial 21-day deadline
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Relation Back — Rule 15(c)_**
* Relation back doctrine applies when a party (seeks leave to) amend to change a pleading — in order to add a new claim or D — after SOL has run
* If allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed
* *_Requirements to Add:_**
(1) _New Claim_ — amendment to add new claim that was not originally asserted
* Amendment will relate back if the new claim *concerns the Same T/O* *or conduct* as the original pleading
* i.e., if the new claim is based on the same general set of facts as the original pleading
(2) _New or Substituted D_ — applies when P sued the wrong D first, but the right D was aware of the mistake
Amendment will relate back if:
* (1) Amendment concerns the *Same T/O or conduct* as original pleading, and
* (2) Within 90 days of filing of the original pleading, the New D
* (a) Knew of or received notice of action, and
* (b) Knew or should have known that, but for a mistake, he would have been named originally
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Variance_**
**Amendment of Pleadings to Conform to Evidence**
* Where the evidence at trial does not match what was pleaded
* A pleading may be amended during or after trial, or even after judgment, to conform to the evidence, reflect an issue actually tried by the express or implied consent of the parties, or permit the raising of new issues at trial.
* But — a party may not raise a new claim or defense for which the opposing party had no opportunity to prepare and which would result in prejudice in maintaining his action or defense.
Examples:
* P sues for breach of K. D answers. At trial, P introduces evidence that D assaulted him. D doesn’t object.
* Evidence of assault is admitted into evidence (because D didn’t object). At or after trial, P can move to amend the complaint to conform to the evidence. This ensures that the pleadings match what was actually tried.
* Same case, but D does object.
* Evidence of assault is inadmissible because it is “at variance with the pleadings.”
30
Timing of Response to Amended Pleading
Party has the longer of
* (a) 14 days from receipt of the amended pleading, or
* (b) the balance (i.e., days remaining) of the initial 21-day deadline
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
* Under Rule 15, parties may amend their pleadings once as a matter of course
* Additional amendments may be granted with consent of other parties or court permission (amendment without right)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_(Right to Amend) — Amendment as a Matter of Course_**
May occur either:
* (1) Within 21 days after service of that pleading, or
* If the pleading to be amended is one to which a responsive pleading is not required
* e.g., a reply or an answer not containing counterclaims
* (2) If the pleading is one which requires a response (complaint or an answer with counterclaims) — within 21 days of service of the response to that pleading by the other party — (e.g., a Rule 12 motion)
* _Amendment by P_
* If D responds to P's Complaint with a motion/answer, P has 21 days from receiving service of D’s response to amend complaint
* _Amendment by D_
* Right to amend will save waivable and affirmative defenses, and allow D to deny allegations
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Amendment Without Right_**
Party may only amend with either:
* (1) Written Consent of the Adverse Party, or
* (2) Leave of Court — i.e., court's permission
* Leave of court must be sought through a motion
* Leave will be granted freely when justice requires (lenient standard) — court looks to:
* (a) Delay that will be caused
* (b) Potential Prejudice to parties
* (c) Futility of amendment
* e.g., P wants to amend complaint to add a claim that the law doesn’t recognize
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Relation Back — Rule 15(c)_**
* Relation back doctrine applies when a party (seeks leave to) amend to change a pleading — in order to add a new claim or D — after SOL has run
* If allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed
* *_Requirements to Add:_**
(1) _New Claim_ — amendment to add new claim that was not originally asserted
* Amendment will relate back if the new claim *concerns the Same T/O* *or conduct* as the original pleading
* i.e., if the new claim is based on the same general set of facts as the original pleading
(2) _New or Substituted D_ — applies when P sued the wrong D first, but the right D was aware of the mistake
Amendment will relate back if:
* (1) Amendment concerns the *Same T/O or conduct* as original pleading, and
* (2) Within 90 days of filing of the original pleading, the New D
* (a) Knew of or received notice of action, and
* (b) Knew or should have known that, but for a mistake, he would have been named originally
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_Variance_**
**Amendment of Pleadings to Conform to Evidence**
* Where the evidence at trial does not match what was pleaded
* A pleading may be amended during or after trial, or even after judgment, to conform to the evidence, reflect an issue actually tried by the express or implied consent of the parties, or permit the raising of new issues at trial.
* But — a party may not raise a new claim or defense for which the opposing party had no opportunity to prepare and which would result in prejudice in maintaining his action or defense.
Examples:
* P sues for breach of K. D answers. At trial, P introduces evidence that D assaulted him. D doesn’t object.
* Evidence of assault is admitted into evidence (because D didn’t object). At or after trial, P can move to amend the complaint to conform to the evidence. This ensures that the pleadings match what was actually tried.
* Same case, but D does object.
* Evidence of assault is inadmissible because it is “at variance with the pleadings.”
31
Relation Back — Rule 15(c)
**_Relation Back — Rule 15(c)_**
* Relation back doctrine applies when a party (seeks leave to) _amend_ to change a pleading — in order to add a new claim or D — after SOL has run
* If allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed
* *_Requirements to Add:_**
(1) _New Claim_ — amendment to add new claim that was not originally asserted
* Amendment will relate back if the new claim *concerns the Same T/O* *or conduct* as the original pleading
* i.e., if the new claim is based on the same general set of facts as the original pleading
(2) _New or Substituted D_ — applies when P sued the wrong D first, but the right D was aware of the mistake
Amendment will relate back if:
* (1) Amendment concerns the *Same T/O or conduct* as original pleading, and
* (2) Within 90 days of filing of the original pleading, the New D
* (a) Knew of or received notice of action, and
* (b) Knew or should have known that, but for a mistake, he would have been named originally
32
Variance
**_Amendment of Pleadings to Conform to Evidence_**
**Where the evidence at trial does not match what was pleaded**
* A pleading may be amended during or after trial, or even after judgment, to conform to the evidence, reflect an issue actually tried by the express or implied consent of the parties, or permit the raising of new issues at trial.
* But — a party may not raise a new claim or defense for which the opposing party had no opportunity to prepare and which would result in prejudice in maintaining his action or defense.
Examples:
* P sues for breach of K. D answers. At trial, P introduces evidence that D assaulted him. D doesn’t object.
* Evidence of assault is admitted into evidence (because D didn’t object). At or after trial, P can move to amend the complaint to conform to the evidence. This ensures that the pleadings match what was actually tried.
* Same case, but D does object.
* Evidence of assault is inadmissible because it is “at variance with the pleadings.”
33
\_\_\_\_\_\_\_\_\_ relate to matters occurring after the date of the original pleading
**Supplemental Pleadings**
* There is no right to file a supplemental pleading
* P must move to file supplemental pleadings — (not motion to amend)
* Require permission of the court
* Permission may be granted even though the original pleading is defective in its statement of a claim for relief or a defense.
Example
P sues D for breach of K. After the case is filed, D punches P in the nose. P wants to add this tort claim to the existing case. P makes a motion to file a supplemental complaint. (not motion to amend the complaint)
34
Supplemental Pleadings
Supplemental pleadings relate to matters occurring after the date of the original pleading
* There is no right to file a supplemental pleading
* P must move to file supplemental pleadings — (not motion to amend)
* Require permission of the court
* Permission may be granted even though the original pleading is defective in its statement of a claim for relief or a defense.
Example
P sues D for breach of K. After the case is filed, D punches P in the nose. P wants to add this tort claim to the existing case. P makes a motion to file a supplemental complaint. (not motion to amend the complaint)
35
Rule 11 — Certification & Sanctions
* Rule 11 requires the attorney or pro se party to sign all pleadings, written motions, and other papers
* Applies to all documents except discovery (which are treated by a different rule)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_CERTIFICATION_**
(A) _Signature_
When the lawyer / pro se party — signs documents — he certifies that to the best of his knowledge & belief, after reasonable inquiry:
* (1) Not Improper Purpose
* Filing is not for an improper purpose
* e.g., harassment, or delay
* (2) Non-Frivolous Legal Arguments
* Legal arguments made are warranted by law
* or non-frivolous argument for law to change
* (3) Evidentiary Support for Facts
* Factual contentions & denials — have or are likely to have — evidentiary support
(B) _Continuing Certification_
* In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document).
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**_SANCTIONS_**
_Court may issue sanctions for violations — either:_
* (1) After an Opponent Party's Motion
* 21 day safe harbor applies
* (2) Sua Sponte — no safe harbor
* To do so, the court usually issues an “order to show cause” (“OSC”) why sanctions should not be imposed.
* The court must give a chance to be heard before imposing a sanction on anyone — see infra
_Against Whom May Rule 11 Sanctions be Ordered?_
* General rule — the party, attorney, and law firm are jointly responsible
_Safe Harbor_
* Rule 11 motion for sanctions may not be filed by opposing party until 21 days following service of the offending document
* Opposing party may serve the motion on other parties but cannot file it.
* The party who violated may
* (1) withdraw the offending document, or
* (2) remedy the problem
* If not remedied or withdrawn within 21 days — the motion can be filed
_Hearing Required_
* Court must give attorney or party a chance to be heard before imposing sanctions
_Purpose of Rule 11 Sanctions_
* To deter rather than punish
* Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes).
* Monetary sanctions, if imposed, are often paid to court, not to the other party
