Pleadings & Parties

Question 1

What is a complaint and what must it contain?

Answer 1

Pleading filed to initiate lawsuit.

Must contain:

1. Grounds for SMJ;
2. Statement of claim; and
3. Demand for relief (damages, equitable relief, etc)

FRCP 8(a)

Question 2

What must the statement of claim contain?

Answer 2

“Short and plain statement” showing that P has a plausible claim for relief.

FRCP 8(a)(2)

Question 3

What sort of claims need to be plead with particularity?

Answer 3

Those involving fraud, mistake, or special damages.

See FRCP 9. for specific pleading requirements.

Question 4

D has ____ days after service of process to file an answer.

Answer 4

21.

⚠️ If D waived service, answer is due within 60 days after request for waiver was sent, or within 90 days after it was sent to D outside any judicial district of the United States.

If D is the United States or a US employee, answer is due within 60 days.

FRCP 12(a)(1)(A)(i)

Question 5

What must an answer contain?

Answer 5

1. Admittance or denial of all complaint allegations (failure to deny constitutes admission)
2. Affirmative defenses (if D fails to raise in answer, they will be waived). Examples include:
   
   1. Self-defense
   2. Statute of Frauds
   3. Statute of Limitation
   4. Contributory negligence
   5. Claim preclusion
   6. Fraud

Question 6

What is the effect if a party pleads lack of information because they don’t know whether or not an allegation is true?

Answer 6

Will be treated as a denial.

Question 7

What are the Rule 12(b) grounds for dismissal?

Answer 7

1. Lack of SMJ;
2. Lack of PJ;
3. Improper venue;
4. Insufficient process;
5. Insufficient service of process;
6. Failure to state a claim upon which relief can be granted; and
7. Failure to join a party under Rule 19

FRCP 12(b)

Question 8

What is the deadline for filing 12(b) motions if responsive pleading is allowed?

Answer 8

Before the answer.

FRCP 12(b)

Question 9

What is a 12(b)(6) motion and what is the deadline for filing?

Answer 9

Motion to dismiss for failure to state a claim upon which relief can be granted. Court reviews P’s complaint only - no other evidence - to determine whether to grant the motion.

If a responsive pleading is required - the 12(b)(6) motion must be filed before the answer.

If no responsive pleading is required, the 12(b)(6) motion can be filed anytime before trial or at trial.

Rule 12(b)(6)

Question 10

What is a 12(c) motion and the deadline for filing?

Answer 10

Motion for judgment on the pleadings. Court reviews all pleadings when deciding whether to grant the motion.

Filed after D files answer.

Question 11

Which 12(b) defenses are waived if not included in the 12(b) motion?

Answer 11

• Lack of personal jurisdiction
• Improper venue
• Insufficient process
• Insufficient service of process
• Motion for a more definite statement

FRCP 12(h)

Question 12

Which 12(b) defense is never waived?

Answer 12

Lack of SMJ.

FRCP 12(h)

Question 13

Distinguish between an ordinary defense and an affirmative defense

Answer 13

Ordinary defense: Defense on the basis of the complaint.

Affirmative defense: Introduces new facts to defeat or mitigate D’s liability.

Question 14

When can a party amend its pleading as a matter of course?

Answer 14

1. Parties may amend pleadings once as a matter of course within 21 days of service of process.
2. If responsive pleading required, can amend within 21 days after either responsive pleading or pre-answer motion (whichever came first).

FRCP 15(a)

Question 15

What must a party do if they want to amend twice or after the deadlines have expired?

Answer 15

Seek either the other party’s permission or the court’s permission (by motion).

FRCP 15(a)(2)

Question 16

When do courts grant permission to amend?

Answer 16

Permission is “freely given when justice so requires.” Only denied if other party can show unfair prejudice would result.

⭐️ Note: Leave to amend is liberally granted.

FRCP 15(a)(2)

Question 17

Can you amend during or after trial?

Answer 17

Yes, as long as the court grants permission.

FRCP 15(b)

Question 18

A party has ___ days to respond to an amended pleading

Answer 18

14 days after service of the amended pleading or the time remaining for response to the original pleading (unless the court orders otherwise).

FRCP 15(a)(3)

Question 19

What does it mean if an amendment “relates back”?

Answer 19

It means that the amendment relates back to the date of the original pleading (often used when statute of limitations has expired)

FRCP 15(c)

Question 20

When do amendments adding new claims “relate back”?

Answer 20

Only when the claim arises out of the same “conduct, transaction, or occurence” as the original pleading.

FRCP 15(c)(1)(B)

Question 21

When do amendments adding parties “relate back”?

Answer 21

If:

1. Amendment arises out of the same conduct, transaction, or occurence as the original pleading; and
2. Within 90 days after the complaint is filed, the new D:
   
   1. Received notice & will not be prejudiced; and
   2. Knew or should have known that the action would have been brought but for a mistake concerning the proper party’s identity (i.e. the suit was foreseeable)

FRCP 15(c)(1)(C)

Question 22

Define

supplemental pleadings

Answer 22

Pleadings that describe a transaction, occurrence, or event that happened after the date of the original pleading. Court may permit on motion and upon reasonable notice.

FRCP 15(d)

Question 23

What is the Rule 11 signing requirement?

Answer 23

Requires that all pleadings and motions be signed by at least one attorney per party (or party himself if pro se) certifying that, to the best of the attorney’s knowledge after reasonable inquiry:

• Pleading is not to harass or for any improper purpose
• Legal arguments are nonfrivolous and supported by existing law; and
• Factual assertions & denials have or will have evidentiary support

FRCP 11(b)

Question 24

What are types of Rule 11 sanctions?

Answer 24

• Monetary/penalty: court fees associated with the cost of seeking sanctions incurred by the other party
• Non-monetary: reprimand or strike the pleadings

FRCP 11(c)

Question 25

What is the Rule 11 “safe harbor” provision?

Answer 25

If the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service, then Rule 11 sanctions should not be filed with the court.

FRCP 11(c)(2)

Question 26

What steps must a party take to move for Rule 11 sanctions?

Answer 26

1. Serve motion for sanctions to the other party; and
2. If error is not corrected within 21 days (within safe harbor period), file the motion with the court

FRCP 11(c)(2)

Question 27

Are Rule 11 sanctions required?

Answer 27

No, whether to grant sanctions is up to the court’s discretion.

FRCP 11(c)

Question 28

Define

joinder of claims

Answer 28

Allows existing parties to file additional claims against each other, regardless of whether they are related. Parties can file as many additional claims as they wish.

FRCP 18

Question 29

When is joinder of a party compulsory?

Answer 29

When the party is a necessary party, meaning →

1. Complete relief cannot be issued in the party’s absence; or
2. Failure to join would impede the rights of either that party or existing parties

FRCP 19(a)(1)

Question 30

When is joinder of additional parties permitted?

Answer 30

Multiple persons can join in one action as P’s or D’s if:

1. D’s are being sued jointly, severally, or in the alternative;
2. Claims arise out of the same transaction or occurrence; and
3. There is a common question of law or fact to all parties joined

FRCP 20(a)

Question 31

Are joint tortfeasors considered necessary parties?

Answer 31

No, joinder is not mandatory for joint tortfeasers.

FRCP 20

Question 32

Is proper SMJ required for joinder?

Answer 32

Yes, joinder will be precluded if adding the party would destroy diversity or otherwise negate SMJ.

Question 33

Does a court need to have personal jurisdiction over all parties joined in an action?

Answer 33

Court needs to have PJ over all D’s and all involuntary P’s. The court does not need to have PJ over voluntary P’s or those who waive PJ.

FRCP 19

Question 34

If a joined party objects to venue, and joinder would make venue improper, what must the court do?

Answer 34

Dismiss the party.

FRCP 19(a)(3)

Question 35

What occurs if a necessary party cannot be joined?

Answer 35

The court uses a balancing test to determine whether the suit should be dismissed. Court asks:

1. Would the judgment rendered in the party’s absence prejudice that person or the existing parties?
2. Could prejudice be lessened or avoided by:
   
   • Protective provisions in the judgment?;
   • Shaping the relief?; or
   • Other measures?
3. Would a judgment rendered in the person’s absence be adequate?
4. Would P have an adequate remedy if the action were dismissed?

FRCP 19(b)(1-4)

Question 36

True or False: Compulsory joinder is typically a defense brought by D.

Answer 36

True.

Question 37

Define

bulge provision

Answer 37

Under FRCP 4(k)(b), a third party can be served with proper notice anywhere within 100 miles of the court issuing the summons.

⚠️ Note: Only applies to third party D’s & indispensible parties.

Question 38

Define

impleader

Answer 38

When D adds a third party to the case, alleging third party is responsible for some or all of the liability facing D (i.e. “It wasn’t my fault, it was his fault.”)

Impleader is common for indemnity cases & with joint tortfeasers.

FRCP 14(a)

Question 39

What is the deadlineto file an impleader claim?

Answer 39

1. Within 14 days of serving an answer; or
2. With permission of court

FRCP 14(a)(1)

Question 40

After a party has been impleaded into a lawsuit, what claims can be filed by the:

1. Impleaded party?
2. Original P?

Answer 40

1. Impleaded party: Claims of its own against other parties or impleader claims for additional parties. FRCP 14(a)(2)
2. Original P: Claims against the impleaded D if the claim relates to the original claims. FRCP 14a)(3)

Question 41

What is interpleader and what are the two different types?

Answer 41

Allows a party with multiple, different claims to join all the claimants together.

Types:

1. Rule interpleader (FRCP 22)
2. Statutory interpleader (28 USC § 1335)

Question 42

When is interpleader typically used?

Answer 42

Typically used in cases where property is at issue to determine who has a proper claim or right to property held by a third-party (e.g. who has the right to property held by the executor of a will).

FRCP 22

Question 43

What do you call the property at issue & the parties involved in an interpleader claim?

Answer 43

Stake: whatever is being fought over/claimed by the claimants (ex. estate)

Stakeholder: whoever holds the property. An interpleader allows the stakeholder to turn the property over to the court so that the stakeholder does not face liability.

Claimants: parties fighting over/claiming the stake

Question 44

What are the SMJ, PJ, and venue requirements of rule (FRCP 22) interpleader?

Answer 44

1. SMJ: Stakeholder must be diverse from every claimant (complete diversity required) and amount in controversy >$75K
2. PJ: must exist for all claimants
3. Venue: same rules as other federal cases

FRCP 22

Question 45

What are the SMJ, PJ, and venue requirements for statutory interpleader?

Answer 45

1. SMJ: one claimant must be diverse from at least one other claimant (minimal diversity required) and amount in controversy must be $500 or more.
2. PJ: exists as long as claimants are in the US
3. Venue: proper in any district where any claimant resides

28 USC § 1335

Question 46

What is a Rule 24 intervention?

Answer 46

Intervention that permits a non-party to join a lawsuit through its own initiative.

FRCP 24

Question 47

When is a Rule 24 intervention granted as a matter of right?

Answer 47

On timely motion, court must grant intervention when:

• Right is granted by federal statute; or
• Party has an interest relating to the subject matter of the action and would not be able protect their interest without intervention

FRCP 24(a)

Question 48

When is permissive intervention available?

Answer 48

The court may permit intervention:

1. Upon timely application and at the court’s discretion;
2. When the intervenor has a claim or defense that shares a common nucleus of operative fact with the main claim

FRCP 24(b)

Question 49

Do permissive counterclaims have to arise from the same transaction or occurrence as the original claim?

Answer 49

No.

FRCP 13(b)

Question 50

Does failure to bring a permissive counterclaim preclude D from bringing it later in a separate suit?

Answer 50

No, not precluded in a future suit.

Question 51

When is a counterclaim compulsory?

Answer 51

Any claim against the opposing party that:

1. Arises out of the same transaction or occurrence as the original claim; and
2. Does not require adding another party over whom the court cannot acquire jurisdiction

FRCP 13(a)(1)

Question 52

What does it mean for a claim to arise from the same transaction or occurence?

Answer 52

When the claim is logically related to the original claim or the core facts substantially overlap

Question 53

Does failure to bring a compulsory counterclaim preclude D from bringing it later in a separate suit?

Answer 53

Yes, unless:

1. D was not aware that he could bring the compulsory counterclaim (Dindo v. Whitney 1971); or
2. D wins an affirmative defense (D can counterclaim on the same facts)

See more: Res Judicata & Counterclaims

Question 54

Define

cross-claim

Answer 54

Claim filed against a co-party (i.e. someone on the same side of the “v”). Must arise out of the same transaction or occurence or relate to any property that is the subject matter of the original action.

Ex. Ian sues Max and Carly. Carly can file a cross-claim against Max as long as it arises out of the same transaction or occurence.

FRCP 13(g)

Question 55

Once D files a cross-claim against a co-D, what type of claim can the co-D then file?

Answer 55

Counterclaim → can be compulsory or permissive.

FRCP 13.

Question 56

Define

class action

Answer 56

A suit brought by one or more persons on behalf of a larger group of individuals (called a class).

FRCP 23

Question 57

What are the 4 prerequisites to beginning a class action under FRCP 23(a)?

Answer 57

Class action is only proper if:

1. Numerosity: the class is so numerous that joinder of all would be impractical;
2. Commonality: there is a question of law or fact common to the class;
3. Typicality: the claims of the representative parties are typical of those of the class, thus ensuring the representatives will have incentive to litigate in a way that will protect the class; and
4. Representativeness: the representative parties will fairly and adequately protect the interests of the class

FRCP 23(a)

Question 58

Define

What are the three types of class actions under Rule 23(b)?

Answer 58

1. When separate actions would create a risk of inconsistent judgments or judgments that would substantially impair the ability of a non-party member to protect his interests (FRCP 23(b)(1))
2. When the class seeks injunctive or declaratory relief (not damages) (FRCP 23(b)(2))
3. Most common: When a class seeks damages and questions of law or fact common to class members predominate over questions affecting individual members, so that a class action is superior to individual suits. (FRCP 23(b)(3))

Question 59

What are the two steps the court takes to determine whether a class action is appropriate?

Answer 59

Asks:

1. Does the class fulfill the four requirements under Rule 23(a)? If yes:
2. Does the class fall under the 3 categories outlined in:

• 23(b)(1)
• 23(b)(2)
• 23(b)(3)

If yes → the court may certify the class.

Question 60

What are the SMJ requirements for a class action under 1332(a)?

Answer 60

Federal question class actions: same requirements as other suits.

Diversity class actions:

1. Class representatives must be diverse from all opposing parties; and
2. Amount in controversy must be > $75K for every class member (⚠️ Note: If the amount in controversy is not met, other members may still be heard via supplemental jurisdiction if the requirements under 28 USC §1367 are met)

⚠️ Under the Class Action Fairness Act 1332(d), diversity in class actions (>100 plaintiffs) can be met if:

1. Any P is diverse from any D; and
2. Aggregate amount in controversy >$5 million

Question 61

What is the effect of a judgment in a class action on the class members?

Answer 61

The judgment binds all members of the class unless a class member notifies court that they do not wish to be bound.

Question 62

What notice is required for classes certified under Rule 23(b)(1) or (2)?

Answer 62

The court has discretion to determine what notice is required.

Question 63

What is required for PJ to exist for a class action under 23(b)(3)?

Answer 63

1. Minimum contacts: only required for present class members
2. Notice: must be given to all members
   
   • Members must be given ability to opt out

FRCP 23

Question 64

Define

Class Action Fairness Act (CAFA)

Answer 64

Allows SMJ to exist when:

1. Class has more than 100 members;
2. Any class member is diverse from any opposing party (minimal diversity); and
3. Aggregated claims are greater than $5 million

See more: CAFA

Question 65

For a class action, when claims arise under state law and parties are citizens of different states that have different laws on the claims, is commonality defeated?

Answer 65

Likely yes.

⚠️ Note: This scenario is frequently tested on the MBE.

Question 66

What are the rules regarding settlements for class actions?

Answer 66

1. Court must approve all settlements;
2. Class members should be provided notice of the possible settlement; and
3. Settlement must be reasonable, fair, and adequate

FRCP 23(e)

Question 67

Define

severance

Answer 67

Allows court to split up cases into smaller suits if it would be more convenient or efficient.