Civil Procedure — Pleadings, Rule 12 Defenses, Amendments & Rule 11

Watch Federal Civil Procedure Deep Dive: Pleadings (Or Read UBE CC: Module 8)

1. What commences a federal civil action?

Filing the complaint.

2. What three things must a complaint contain?

Grounds for subject matter jurisdiction; a short and plain statement showing entitlement to relief; and a demand for relief.

3. Must the complaint allege grounds for personal jurisdiction or venue?

No.

4. What pleading standard applies to an ordinary claim?

Sufficient facts to support a plausible claim.

5. How does the judge assess plausibility?

Using judicial experience and common sense.

6. What motion challenges a complaint for failure to state a claim?

A Rule 12(b)(6) motion.

7. What matters require heightened pleading detail?

Fraud and mistake require particularity; special damages must be specifically stated.

8. Is “the defendant defrauded me” sufficient to plead fraud?

No. The circumstances of the fraud must be pleaded with particularity.

9. How may a defendant initially respond to a complaint?

By motion or answer.

10. What is the ordinary deadline for responding to a complaint?

21 days after service of process.

11. What is the response deadline when the defendant timely waives service?

Generally 60 days after the waiver request was sent, or 90 days if sent outside any U.S. judicial district.

12. Are motions pleadings?

No. Motions request court orders.

13. Are complaints and answers pleadings?

Yes.

14. What is a Rule 12(e) motion?

A motion for a more definite statement.

15. When is a motion for a more definite statement appropriate?

When a pleading is so vague or ambiguous that the party cannot reasonably prepare a response.

16. When must a Rule 12(e) motion be made?

Before filing a responsive pleading.

17. What is a Rule 12(f) motion?

A motion to strike material from a pleading.

18. What may be stricken under Rule 12(f)?

An insufficient defense or redundant, immaterial, impertinent, or scandalous material.

19. Who may move to strike?

Either party.

20. What are the seven Rule 12(b) defenses?

Lack of SMJ; lack of PJ; improper venue; insufficient process; insufficient service of process; failure to state a claim; and failure to join a required party under Rule 19.

21. Which four Rule 12(b) defenses are subject to early waiver?

Lack of PJ, improper venue, insufficient process, and insufficient service of process.

22. What generally happens if an available waivable defense is omitted from the defendant’s first Rule 12 motion?

It is waived.

23. If the defendant files no pre-answer Rule 12 motion, where must waivable defenses be preserved?

In the answer or an amendment permitted as a matter of course under Rule 15(a)(1).

24. What is insufficient process?

A defect in the process papers, such as a defective summons.

25. What is insufficient service of process?

A defect in how process was served.

26. Which Rule 12(b) defenses need not appear in the first response and may be raised through trial?

Failure to state a claim and failure to join a required party under Rule 19.

27. Is lack of subject matter jurisdiction ever waived?

No.

28. What must the court do when it determines that it lacks SMJ?

Dismiss the action, or remand it if the action was removed from state court.

29. Does extensive litigation cure a lack of SMJ?

No.

30. When is diversity of citizenship generally measured?

When the action is filed.

31. When must the defendant generally answer after a Rule 12 motion is denied?

Within 14 days after notice of the denial.

32. What three responses may a defendant make to an allegation?

Admit it, deny it, or state insufficient knowledge or information to form a belief about its truth.

33. What effect does a proper statement of insufficient knowledge or information have?

It functions as a denial.

34. May a defendant claim insufficient knowledge merely to avoid checking information within the defendant’s control?

No.

35. What generally happens when the defendant fails to deny an allegation requiring a response?

The allegation is admitted.

36. What allegation is not admitted merely because the defendant fails to deny it?

The amount of damages.

37. Does “the plaintiff cannot prove I was intoxicated” deny intoxication?

No. Challenging the plaintiff’s proof is not a denial.

38. What is an affirmative defense?

An additional ground that can defeat liability even if the plaintiff otherwise establishes the claim.

39. What are common affirmative defenses?

Statute of limitations, statute of frauds, claim preclusion, and self-defense.

40. Where should affirmative defenses generally be asserted?

In the answer.

41. What may happen if an affirmative defense is omitted from the answer?

The court may treat it as waived, subject to applicable preservation and amendment rules.

42. May Rule 12(b) defenses be asserted in the answer?

Yes, if they have not already been waived.

43. Must the plaintiff ordinarily reply to affirmative defenses in the answer?

No, unless the court orders a reply.

44. How are allegations treated when no responsive pleading is required?

They are considered denied or avoided.

45. What rule governs amendments to pleadings?

Rule 15.

46. How many times may a party amend a pleading as a matter of course?

Once within the applicable Rule 15 period.

47. When may a plaintiff amend a complaint as a matter of course?

Within 21 days after serving it, or, if a responsive pleading is required, within 21 days after service of an answer or a Rule 12(b), (e), or (f) motion, whichever is earlier.

48. When may a defendant ordinarily amend an answer as a matter of course?

Within 21 days after serving it.

49. Can an amendment as a matter of course preserve a waivable defense omitted from the initial answer?

Yes, if no earlier Rule 12 motion already waived the defense.

50. Can amending the answer rescue an available PJ defense omitted from an earlier Rule 12 motion?

No.

51. What is required to amend when amendment as a matter of course is unavailable?

The opposing party’s written consent or leave of court.

52. What standard governs leave to amend?

The court should freely give leave when justice requires.

53. What factors may justify denying leave to amend?

Undue delay, bad faith, repeated failure to cure deficiencies, undue prejudice, or futility.

54. What does futility of amendment mean?

The proposed amendment would still be legally insufficient.

55. What is variance?

Trial evidence goes beyond or differs from the issues raised in the pleadings.

56. What happens when an unpleaded issue is tried by express or implied consent?

It is treated as if raised in the pleadings, which may be amended to conform to the evidence.

57. What is relation back?

Treating an amendment as filed on the date of the original pleading.

58. Why does relation back matter?

It can prevent an amended claim from being barred by the statute of limitations.

59. When does a new claim relate back under the same-occurrence test?

When it arises from the same conduct, transaction, or occurrence described in the original pleading.

60. Does a completely unrelated new claim satisfy the same-occurrence test?

No.

61. What generally must be shown for an amendment changing a defendant to relate back?

The same conduct, transaction, or occurrence; timely notice preventing prejudice; and knowledge that, but for an identity mistake, the defendant would originally have been sued.

62. When must the new defendant receive the required notice and knowledge for relation back?

Within the Rule 4(m) service period, ordinarily 90 days after filing, including applicable extensions.

63. What is the classic fact pattern for changing defendants through relation back?

The plaintiff sued the wrong entity, but the correct entity timely knew about the lawsuit and the identity mistake.

64. What is a supplemental pleading?

A pleading addressing events that occurred after the original pleading was filed.

65. May a party file a supplemental pleading as a matter of course?

No. Court permission is required.

66. What pleading is appropriate to add an assault occurring after the original complaint was filed?

A supplemental complaint.

67. What is the basic distinction between amendment and supplementation?

Amendment changes the pleading; supplementation addresses later events.

68. What papers does Rule 11 generally govern?

Pleadings, written motions, and other papers presented to the court.

69. Does Rule 11 govern discovery materials?

No.

70. What inquiry is required before making Rule 11 certifications?

An inquiry reasonable under the circumstances.

71. What does Rule 11 certify about a paper’s purpose?

It is not presented for an improper purpose, such as harassment, unnecessary delay, or needless expense.

72. What does Rule 11 certify about legal arguments?

They are supported by existing law or a nonfrivolous argument to change the law.

73. What does Rule 11 certify about factual assertions?

They have evidentiary support or, if specifically identified, are likely to obtain support after reasonable investigation or discovery.

74. What does Rule 11 certify about factual denials?

They are warranted by the evidence or reasonably based on lack of information or belief.

75. Does Rule 11 certification apply only when a document is signed?

No. It also applies when the position is later advocated to the court.

76. What is the primary purpose of Rule 11 sanctions?

To deter repetition of the misconduct or comparable misconduct.

77. Who may face Rule 11 sanctions?

Responsible attorneys, law firms, or parties, subject to the rule’s limitations.

78. Is a law firm generally jointly responsible for its attorney’s Rule 11 violation?

Yes, absent exceptional circumstances.

79. What opportunity must be provided before Rule 11 sanctions are imposed?

Notice and a reasonable opportunity to respond.

80. What forms may Rule 11 sanctions take?

Nonmonetary directives, monetary penalties payable to the court, or qualifying attorney’s fees and expenses.

81. What is the Rule 11 safe-harbor procedure for a party’s sanctions motion?

Serve the motion first and allow 21 days to withdraw or correct the challenged material before filing it.

82. What happens if the challenged material is timely withdrawn or corrected during the safe harbor?

The sanctions motion must not be filed.

83. May a party immediately file a Rule 11 sanctions motion without first serving it?

No.

84. May the court initiate Rule 11 sanctions on its own?

Yes, through an order to show cause.

85. Does the 21-day safe harbor apply to court-initiated Rule 11 sanctions?

No.

86. The defendant first moves to dismiss for lack of SMJ, omitting an available PJ defense. After denial, the defendant answers within 11 days and asserts lack of PJ. Is the answer timely, and is PJ preserved?

The answer is timely, but the PJ defense is waived because it was omitted from the first Rule 12 motion.