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Flashcards in Pleadings & Parties Deck (72)
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1
Define

Pleading

Beginning stage of a lawsuit in which parties formally submit their claims and defenses. Governed by FRCP 7-16.

See more: Pleading

2

What is a complaint and what must it contain?

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)

3

What was the court's holding in Bell Atlantic v. Twombly?

A sufficient complaint must include “enough factual matter (taken as true) to suggest that an agreement was made.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

4

What was the court's holding in Ashcroft v. Iqbal?

The complaint must contain facts that make P's claim plausible. As a consequence, courts can dismiss suits much more easily for failing to meet this elevated pleading standard.

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

5

What must the statement of claim contain?

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

FRCP 8(a)(2)

6

What sort of claims need to be plead with particularity and what does that entail?

Those involving fraud, mistake, or special damages.

P must state who, what, when, where, and how for each essential element of the claim.

FRCP 9(b)

7

What is responsive pleading?

Response to the merits of the opposing party's prior pleading

8

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

9

What must an answer contain?

  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)
    1. Self-defense
    2. Statute of Frauds
    3. Statute of Limitation
    4. Contributory negligence
    5. Claim preclusion
    6. Fraud

10

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

  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)

11

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

Before the answer. FRCP 12(b)

12

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

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. 

Must be filed before D files answer.

 

 

13

In federal court, is a 12(b)(6) dismissal "on the merits"?

Yes, unless otherwise specified.

FRCP 41(b)

 

14

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

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

Filed after D files answer.

15

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

  • Lack of personal jurisdiction
  • Improper venue
  • Insufficient process
  • Insufficient service of process
  • Motion for a more definite statement
  • Motion to strike (the court may also make this motion sua sponte)

FRCP 12(h)

16

What is a Rule 12(f) motion?

Motion to strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

FRCP 12(f)

17

Which 12(b) defense is never waived

Lack of SMJ. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

FRCP 12(h)(3)

18

Distinguish between an ordinary defense and an affirmative defense

Ordinary defense: Defense on the basis of the complaint.

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

19

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

 

 

  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)

20

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

Seek either the other party's permission or the court's permission (by motion). FRCP 15(a)(2)

21

When do courts grant permission to amend?

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)

22

Can you amend during or after trial?

Yes, as long as the court grants permission. FRCP 15(b)

23

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)

24

What does it mean if an amendment "relates back"?

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)

25

When do amendments adding new claims "relate back"?

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

FRCP 15(c)(1)(B)

26

When do amendments adding parties "relate back"?

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:
    • Received notice & will not be prejudiced; and
    • Knew or should have known that the action would have been brought but for a mistakeconcerning the proper party's identity (i.e. the suit was foreseeable) 

FRCP 15(c)(1)(C)

27
Define

supplemental pleadings

Pleadings that describe a transaction, occurrence, or event that happened after the date of the original pleading.

FRCP 15(d)

28

What is the Rule 11 signing requirement?

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)

 

29

What are Rule 11 sanctions?

If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.

Types of sanctions:

  • 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)

30

What is the Rule 11 "safe harbor" provision?

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)