Module 8 - Pleadings

When does an action commence in federal court?

An action commences when the complaint is filed.

What must a complaint include in federal court?

The complaint must contain:

(1) A statement of grounds for subject matter jurisdiction.

(2) A short and plain statement of the claim showing the plaintiff is entitled to relief.

(3) A demand for relief sought (e.g., damages, injunction, declaratory judgment).

Must a plaintiff allege grounds for personal jurisdiction or venue in the complaint?

No, the plaintiff is not required to allege grounds for personal jurisdiction or venue.

What standard must be met when pleading a claim in a complaint?

The plaintiff must plead sufficient facts to support a plausible claim. The judge determines plausibility based on her own experience and common sense.

What is a Rule 12(b)(6) motion?

A motion to dismiss for failure to state a claim.

Which claims require special pleading with particularity or specificity?

Claims involving fraud, mistake, and special damages must be pleaded with particularity or specificity.

When is an action deemed commenced for statute of limitations purposes in a federal question case?

When the complaint is filed with the court.

How is the commencement of an action for statute of limitations determined in diversity cases?

The state rule for determining when the action is commenced applies, which may be when process is served on the opposing party.

What are the response times for a defendant after being served?

(1) 21 days after being served with process.

(2) 60 days if the defendant waived service.

What are the two ways a defendant can respond under Rule 12?

(1) By motion.

(2) By answer.

When is a Rule 12(e) motion for a more definite statement used?

When the complaint is so vague or ambiguous that the defendant cannot respond.

To avoid default

the defendant must do one of these two things no later than 21 days after being served with process.

If the defendant waived service, the defendant has 60 days from when the plaintiff mailed the waiver form to respond.

What is the purpose of a Rule 12(f) motion to strike?

To ask the court to remove redundant or immaterial items from a pleading.

Any party can move to strike

EG: a defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative defense).

Motions are not

pleadings; they are requests for a court order.

Rule 12 motions address

issues of form.

Which defenses are waived if not included in the first Rule 12 response?

1. Lack of personal jurisdiction.

2. Improper venue.

3. Improper process.

4. Improper service of process.

Which defenses under Rule 12(b) can be raised later, even if not included in the first response?

1. Failure to state a claim.

2. Failure to join an indispensable party.

3. Lack of subject matter jurisdiction (which can be raised at any time).

How long does the defendant have to answer after a Rule 12 motion is denied?

The defendant must answer no later than 14 days after notice of the denial.

An answer

is a pleading.

What must a defendant include in the answer?

1. Respond to allegations in the complaint (admit, deny, or claim insufficient knowledge).

2. Raise affirmative defenses.

In responding to the complaint, the defendant may:

(1) Admit some or all allegations;

(2) Deny some or all allegations; and

(3) State that she has insufficient knowledge to admit or deny some or all of the allegations.

This has the effect of a denial, but a party cannot do this if the answer to the allegation is in her control.

NOTE: The failure to deny an allegation is an admission except regarding the amount of damages.

Affirmative defenses

inject a new fact into the case that would allow the defendant to win.

Classic affirmative defenses are:

1. statute of limitations,

2. Statute of Frauds,

3. res judicata, and

4. self-defense.

What are affirmative defenses?

New facts introduced by the defendant that would allow the defendant to win the case, such as statute of limitations, Statute of Frauds, res judicata, and self-defense.

Additionally, all Rule 12(b) defenses can be

be pleaded as affirmative defenses.

If the defendant fails to assert an affirmative defense in the answer, the court may treat it as waived subject to the timing rules in Rule 12.

When the defendant asserts an affirmative defense

there is no need for the plaintiff to respond, as the allegations in the defendant's answer are deemed denied.

When can a plaintiff amend their complaint as of right?

Once, no later than 21 days after the defendant serves their first Rule 12 response.

When can a defendant amend their answer as of right?

Once, no later than 21 days after serving the answer.

What must a party do if they want to amend a pleading after the right to amend has expired?

They must seek leave of court or get the written consent of the opposing party.

The court will grant leave to amend if "justice so requires."

What factors do courts look to in ruling on this?

Length of delay, prejudice to the other party, and futility of amendment.

If the defendant's first response was an answer, in which he forgot to raise "waivable defenses" and forgot to raise an affirmative defense

he has a right to amend his answer to include the "waivable defenses" and the affirmative defense.

What is variance in pleadings?

Variance occurs when the evidence at trial does not match what was pleaded. If no objection is made, the party can amend the pleadings to conform to the evidence.

When does an amended pleading relate back to the original filing date?

If the amendment concerns the same conduct, transaction, or occurrence as the original pleading.

Relation back means

you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

When does an amendment to change a defendant relate back?

If:

1. It concerns the same conduct, transaction, or occurrence.

2. The new defendant knew about the case within 90 days of filing.

3. The new defendant knew they would have been named but for a mistake.

The knowledge referenced in the last two points must have come within the period for service of process (90 days after the filing of the complaint).

And, this provision applies when the plaintiff sued the wrong defendant first, but the right defendant knew about it.

What is a supplemental pleading?

A pleading that sets forth things that happened after the original pleadings were filed. It requires a motion to file and is granted at the court's discretion.

What is the significance of signing documents under Rule 11?

By signing, the attorney or pro se party certifies that the document is:

1. Not for an improper purpose.

2. Legally warranted.

3. Factually supported.

What is the purpose of Rule 11 sanctions, and who can they be imposed against?

The purpose is to deter improper conduct. Sanctions may be imposed against the party, the lawyer, and/or the lawyer's firm.

Types of Sanctions

Often, courts impose non-monetary sanctions (such as requiring the lawyer to attend professionalism classes).

Monetary sanctions, if imposed, are often paid to court, not to the other party.

Safe Harbor Provision

If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions.

Rather, she serves the motion on other parties but does not file it with the court yet.

The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions.

If she does not do so, then the motion can be filed with the court.