Civ Pro

Pleadings/complaints

Complaint

• Used to inform defendant on notice as to what the claims are.

• Used to set out the facts you are alleging against the defendant

• Used to narrow the claims

• Used to screen frivolous claims

What if the complaint is too vague?

• Defendant can file a Rule 12(e) motion. Rule 12(e)Motion for a More Definite Statement

  • Must be filed before filing a responsive pleading

• Only allowed if Complaint is so vague/ambiguous that a responsive pleading cannot reasonably be made

Answer

• A plaintiff must use an answer to admit, deny, or DKI (Denied for lack of knowledge or info) the complaint.

• In order to do this, plaintiff may use Fed.R.Civ.P 8(b) (1-6)

  • Admit things that are true

  • Deny things they know aren’t true

  • Deny knowledge or information sufficient to form a belief (DKI): means “I don’t know”

    •  Denials have to respond to the substance of the allegation (You’ve got a witness or document that disputes what the person says)

• 8 (b) (6)

  Allegation is admitted if a responsive pleading is required and the allegation is not denied.

• Defendant can raise counterclaims- claim for relief by Defendant

  §  Compulsory Counterclaims: MUST be put in answer or are waived (Plaintiff is wrong, I am right)

  §  Permissive Counterclaims: MAY be raised in answer or later (Yes, I did this, but only because Plaintiff did that).

  b.     Fed. R. Civ. P. 8(c)

  ·      Defendant can raise affirmative defenses (non-exhaustive list in 8(c)

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  Reply

·      Answer to the counterclaims by Plaintiff

·      Plaintiff has the same options to (1) admit, (2) deny, or (3) DKI

When complaint is served, Defendant has three choices:

1.     Ignore it

2.     Answer complaint

3.     Make a pre-answer motion to dismiss (Rule 12(b))

a.     Rule 12(b) says the following defenses MAY be asserted by motion but MUST be made before pleading if a responsive  pleading is allowed. These defenses are:

1.     Lack of subject matter jurisdiction

2.     Lack of personal jurisdiction

3.     Improper venue

4.     Insufficient process

5.     Insufficient service of process

6.     Failure to state a claim upon which relief can be granted

7.     Failure to join a party under Rule 19

Rule 12. Defenses and Objections:

§  12(b)(2)-(5) Must be raised in either a pre-answer motion or in the answer. If not raised then it is WAIVED.

§  12(b)(6) & (7) can be raised at any point through trial

§  12(b)(1) can never be waived

 So, If a defendant files a Rule 12 motion, he must file all of them. Whichever he does not file, he waives. (for (2)-(5))

Example: If he filed a 12(b)(2) but not a 12(b)(5), he waives his right to use  12(b)(5).

Motion to strike, Fed. R. Civ. P. 12(f)

If P has included “redundant, immaterial, impertinent or scandalous” 

Court can act (1) on its own or (2) on motion made by a party, either before responding to the pleading or within 21 days of being served if a response isn’t allowed

 

 

 

 

1. D makes a 12(b)motion for failure to state a claim and does not include the defense for lack of subject matter jurisdiction 12 (b)(1). Thus, he waived this defense. T/F?

False, lack of subject matter jurisdiction can be raised at any time. 

 

2.              P serves D by slipping the summons under D’s door. D brings a 12(b)(6) motion to dismiss on the grounds that the statute does not allow for recovery on the facts as pleaded by P. The court denies this motion. Next, D brings a motion under 12 (b)(5) alleging that the service was improper. Will the court grant this motion?

Answer: NO, because D waived the right to bring it. At the time he made his 12 (b)(6) motion, he should have included the insufficient service motion given that he knew all the facts available to him by that time. Rule 12(g)(2). 

3.              Responding to a complaint, a defendant can reserve his right to raise PJ as an issue later in the pleadings. T/F

False, if lack of personal jurisdiction is not asserted in the response, is considered waived and cannot be brought up later in the proceedings.

FRCP 12(a)(1) Time to Serve a Responsive Pleading: In General

Normally, defendant must respond within 21 days of being served with summons and complaint, unless they fall into a number of exception categories.

FRCP 12(a)(4)(A) Time to Serve a Responsive Pleading: Effect of a Motion

When a party files a motion (ex. to dismiss) within the allotted 21 days and the court denies it or postpones its resolution until trial, the responsive pleading must be filed within 14 days of receiving notice of court’s action

FRCP 12(a)(4)(B) Time to Serve a Responsive Pleading: Effect of a Motion

If the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the motion for more definite statement is served.

FRCP 12(b) Time to Serve a Responsive Pleading: How to Present Defenses

Provides a list of defenses that can be submitted by pre-answer motions OR answers. If these affirmative defenses aren’t in the answer or pre-answer motion (which ever comes first), they may be waived/lost/forfeited.

• Lack of Subject Matter Jurisdiction

• Lack of Personal Jurisdiction

• Improper Venue

• Insufficient Process

• Insufficient Service of Process

• Failure to State a Claim upon which Relief Can Be Granted

• Failure to Join a Party under Rule 19

FRCP 12(e) Motion for a More Definite Statement

Party can move for a more definite statement of a pleading which is (1) a responsive pleading and (2) is so vague/ambiguous that the party can’t respond. Motion must (1) be made before filing a responsive pleading and (2) must point out the defects complained of.

FRCP 12(f) Motion to Strike

Court can strike information from a pleading that is (1) redundant, (2) immaterial, (3) impertinent, or (4) scandalous.

Court can act (1) on its own or (2) on motion made by a party, either before responding to the pleading or within 21 days of being served if a response isn’t allowed

FRCP 12(g) Joining Motions

Except for as provided in Rule 12(h)(2) or (3), a party that makes a Rule 12 motion must make them all at once and any that aren’t included may be considered waived/lossed/forfeited

FRCP 12(h) Waiving and Preserving Certain Defenses

Rule 12(b)(1) can be raised at any time in the case (even for the first time on appeal)

Rule 12(b)(2-5) must be put in your first Rule 12 response (pre-answer motion or answer- whichever is first) or else they are waived

Rule 12(b)(6-7) can be raised any time throughout trial (not just in the first response)

Rule 56: Summary Judgment 

•Rule 56

• Summary Judgment -are there any material facts relevant to the cause of the dispute, If there are no facts, there is no reason for a trial. A trial is only necessary if there are facts in conflict.

  • These motions are filed in federal court after the discovery is complete.  

  • Defendant files a motion saying there are no facts in dispute, the plaintiff files saying here are the facts in dispute and uses affidavits to substantiate their claims. 

    • For every fact you’ve submitted in the complaint you lay evidentiary support. You can’t just say I submitted the complaint. 

      • Either goes to trial if there are factual disputes or summary judgment gets granted. 

      • Defendants always file a summary judgment because they have nothing to lose. 

Rule 35: Physical and Mental Examination:  

** You must make a motion to get access or force a π or ∆ to submit for an examination.  (This is because it’s invasive.) 

Rule 36: Requests for Admission:  

** Attach/reference a document or witness who has testified to the fact 🡪 force the other  party to admit to something that cannot possibly be disputed

Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

• 37(a): Motion for an Order Compelling Disclosure or Discovery (1): ** “Meet and confer” – before you file the motion, you have to  tell the court that you’ve tried to resolve this issue on your own.  

Each judge has his/her own rules in addition to each District’s  

rules. “Pre-Motion conference” – before you file the motion, you  must send a request for pre-motion conference and the judge might  resolve the issue right then and there. 

(2): A motion for an order to a party must be made in the court where  the action is pending.  

(3)(B): To compel a Discovery Response:  

(3)(C): Related to a Deposition: when taking an oral deposition, the party, asking a question may complete or adjourn the  

examination before moving for an order. 

(4): Evasive or Incomplete Disclosure, Answer, or Response:  

 37(a): Motion for an Order Compelling Disclosure or Discovery (1): *

“Meet and confer” – before you file the motion, you have to  tell the court that you’ve tried to resolve this issue on your own.  

Each judge has his/her own rules in addition to each District’s  

rules. “Pre-Motion conference” – before you file the motion, you  must send a request for pre-motion conference and the judge might  resolve the issue right then and there. 

(2): A motion for an order to a party must be made in the court where  the action is pending.  

(3)(B): To compel a Discovery Response:  

(3)(C): Related to a Deposition: when taking an oral deposition, the party, asking a question may complete or adjourn the  

examination before moving for an order. 

(4): Evasive or Incomplete Disclosure, Answer, or Response:  

 37(b): Failure to Comply with a Court Order

o Contempt = civil disobeyal of an order: “the failure may be treated as  contempt” 

o Two types of Contempt: 

▪ Civil Contempt: You can be put in jail. This is designed to bring  your behavior back in line with the order. It is not designed to  

punish you – it is designed to coerce/force you to do what the court  wants you to do. When you decide to comply, you are let out of  

jail. The Court can also issue a fine. 

▪ Criminal Contempt: This is designed to punish you for your bad  behavior. This can affect your license or ability to move into other  States. 

Celotex Corp. v. Catrett

 (where π brought an action against ∆s alleging the products  caused asbestos exposure that led to her husband’s death, including the petitioner.  Petitioner moved for summary judgment stating there was no proof that their product  was a proximate cause of her husband’s death. Petitioner only needed to point to a flaw  in the π’s claim because they were the moving party here. In these situations, the moving  party may show the absence of evidence supporting the nonmoving party’s case) • In the defendant’s motion they argued: 

o π failed to produce evidence that Celotex was the proximate cause  o π failed to produce evidence (witnesses) about the decedent’s exposure to  their particular product 

• In response the π offered: (all show that the decedent was exposed to Celotex) o Transcript of the deposition of the decedent 

o Letter from an official of one of the decedent’s former employers – who  was planned to call as a trail witness 

o Letter from an insurance company to the decedent  

 Burden of Production

o Must provide evidence at trail on each element of your claim.  

o When @ trial, π has to offer credible evidence on each element of his  claim. If π meets that burden 🡪 ∆ now has the burden of production to  show their case. 

o It shifts back to the π if the ∆ offers sufficient evidence (This would be  rebuttal – π can put in additional evidence) 

o If the party with the burden of production does not demonstrate all the  elements, then the burden of production does not shift.

 Burden of Persuasion

 Once π/∆ has produced the evidence, they have to convince the factfinder that they have satisfied the elements of the claim. 

o * BURDEN OF PERSUASION DOES NOT SHIFT 

 If ∆ making motion that π does not have claim