Civil Lawsuits

Pleading

A paper containing factual assertions that support jurisdiction and legal claims in a civil lawsuit 

• Rule 7(a) 

Complaint

Commences a civil lawsuit by setting out the plaintiff’s allegations against the defendant and requests relief from the defendant, requires jurisdiction, a claim, and a prayer for relief 

• Rule 8 and Rule 10

Twombly-Iqbal Two Prong Test

Are the allegations well pleaded?

• in deciding whether a pleading states a claim showing that the pleader in entitled to relief, the court must accept as true only the well-pleaded allegations

Do the well-pleaded allegations plausibly state a claim for relief?

• when the guilty (liability-creating) and the innocent explanations are possible, the plaintiff must plead something more by way of factual content to nudge his claim ‘across the line from conceivable to plausible”

Well-Pleaded

more than a “mere conclusory statement” — more than just a “threadbare recital of the elements of the cause of action” 

Time Limit to Answer

Rule 12(a)(1) 

• within 21 days of receipt 

• if defendant waived service under Rule 4(d), within 60 days after request for waiver was sent 

• if filing a Rule 12 motion, within 14 days of court denying the motion

Options in Answering

1. do nothing — default 

2. file motions under Rule 12

3. file an answer 

Default Judgment

Rule 55 — Authorizes default judgments if the non-defaulting party and the court carefully follow the prescribed procedures.

Sequence of Events: 1) default, 2) entry of default, 3) default judgment

Entry of Default

official notion that defendant has failed to respond

different process depending on whether the amount is certain or uncertain

Entry of Default - Certain Amount

plaintiff goes to clerk, clerk sends notice to defendant informing of the default judgment about to be entered, after required time passes the judge enters a default judgment

Entry of Default - Uncertain Amount

• plaintiff files (1) a motion for default, (2) brief in support, and (3) affidavit saying how much they believe the defendant owes 

• and the court decides an amount

Rule 12 Motions

Motions (2) to (5) have to filed in the first response of pleading or it is waived (whether the pleading be an answer or a Rule 12 motion)

Rule 12(e) and 12(f) must be filed in a pre-answer motion or they are waived.

Answer

An answer (1) must respond to each allegation of the complaint, (2) raise all affirmative defenses, and (3) raise any claim for relief against existing parties

• Rule 8(b) - responding 

  Rule 8(c) - affirmative defense 

  Rule 12(b)(2-5) - affirmative defense

  Rule 13 - claim for relief

Answer Requirements

• must respond to each allegation, not just each #ed paragraph 

• if part of allegation must be admitted and part denied, you must admit in part and deny in part 

• “Lacking Knowledge or Information”: not just what you don’t know, but also that you don’t have access to the information 

• be clear in what you admit and deny (e.g., “to the extent plaintiff alleges X”)

Affirmative Defenses

Not the same as a denial, excuses defendant from liability even if plaintiff proves all their allegations 

• must provide the plaintiff with notice, with direct or inferential allegations of all elements of the defense (“short and plain terms”)

• plaintiff may challenge the sufficiency of the affirmative defense through a Rule 12(f) motion to strike

• defense of fraud and mistake must meet heightened pleading standard of Rule 9 (“alleged with particularity”) 

Care and Candor

presenting a paper to the court certifies that the presenter believes, after conducting a reasonable inquiry, that the paper has evidentiary support, a legal basis, and a proper purpose

• Rule 11

Rule 11 Santions

initiated by filing a motion which gives the offender 21 days to reconsider or withdraw or correct the offending paper 

• sanctions are discretionary and must be proportional to the offense 

• bad faith is not required for a violation, but it can figure in deciding on appropriate sanctions 

• a court can impose Rule 11 sanctions sua sponte, there is not safe harbors but due process still requires notice and a chance for the offender to explain or defend

AI

never trust, always verify! hallucinations!

Amending Pleadings

Rule 15

Amending Without Leave of Court

A party may amend its pleading once without leave of court no later than:

(A) 21 days after serving the pleading

(b) or if the pleading requires a response, 21 days after service of a responsive pleading or 21 days after service of Rule 12 motion 

(complaints, crossclaims, counterclaims, and 3rd party complaints)

Amending With Leave of Court

In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

Factors Considered by the Court:

• stage of litigation 

• reason for amendment 

• viability of the amended claim or defense

• reason for not including the new allegation in the original pleading 

Amending After the Limitation Period

An amendment which seeks to add a time-barred claim would be futile and should not be allowed unless the otherwise untimely claim “relates back” to the date of the original pleading.

Relation-Back Rule

The amendment asserts a claim or defense that “arose out of the conduct, transaction, or occurrence set out in the original pleading”