06 Pleadings

In federal court, the [..1..] of the [..2..] commences the action

filing, complaint

The complaint must include a statement of the grounds of […]

SMJ

The complaint must include a short and plain statement of the [..1..] showing the plaintiff is [..2..] to relief

claim, entitled

The complaint must include a [..1..] for the [..2..] sought

demand, relief

The plaintiff need not allege grounds of [..1..] or [..2..] in the complaint

PJ, venue

In stating the claim, the plaintiff must plead [..1..] to support a [..2..]

sufficient facts, plausible claim

To determine plausibility, the judge uses her own [..1..] and [..2..]

experience, common sense

The defendant can [..1..] the complaint by making a motion Motion to Dismiss for Failure to State a Claim under FRCP [..2..]

challenge, 12b6

A defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs [..1..] If he does not, the defendant [..2..] the defense.

first, waives

What must be pleaded with particularity/specificity? (3)

Fraud, mistake, special damages

The defendant must respond in a [..1..] or [..2..]

motion, answer

To avoid default, the defendant must respond no later than [..1..] days after being served with [..2..]

21, process

If the defendant waived service, the defendant has [..1..] days from when the plaintiff mailed the [..2..] to respond

60, waiver form

Motions are not [..1..]. They are requests for a [..2..]

pleadings, court order

Under FRCP 12(e), a Motion for More Definite Statement is used when the complaint is so [..1..] or [..2..] that the defendant cannot [..3..]

vague, ambiguous, respond

A Rule 12(e) Motion for More Definite Statement must be made before […]

answering

A Rule 12(f) motion to strike asks the court to remove information from a pleading that is [..1..], [..2..], or [..3..]

immaterial, redundant, scandalous

Who can move to strike under Rule 12(f)?

Any party

Some Rule 12(b) defenses are waived if not included in the defendant's first Rule 12 response, which is either a [..1..] or [..2..]

motion, answer

The mnemonic "I Prefer Very Processed Soup" stands for the waivable defenses under Rule 12(b), where:

• Prefer is [..1..]

• Very is [..2..]

• Processed is [..3..] and

• Soup is [..4..]

PJ, venue, process, service

In the waivable defenses mnemonic "I Prefer Very Processed Soup," "I" stands for [...]

improper

These are the non-waivable Rule 12(b) defenses that can be made any time through trial:

• failure to [..1..] a [..2..] and

• failure to join an [..3..]

state, claim, indispensable party

Lack of SMJ is never [..1..] and can be raised at [..2..]

waived, any time

If a court determines it lacks SMJ, it must [..1..] the case.

Or—if the case was removed—the court must [..2..] it

dismiss, remand

If a Rule 12(b) motion to dismiss is DENIED, the defendant must serve an answer no later than [...] days after notice of the denial

14

An answer is a […]

pleading

In the answer, the defendant must respond to allegations by:

• [..1..] them,

• [..2..] them, OR

• stating insufficient [..3..] to admit or deny them

admitting, denying, knowledge

A defendant cannot claim […] IF the answer to the allegation is within their [..2..]

insufficient knowledge, control

Failure to deny an allegation IS an [..1..] UNLESS it regards the amount of [..2..]

admission, damages

The mnemonic "If you fail to deny, you may fry" relates to the rule that failure to deny an [..1..] is an [..2..]

allegation, admission

In the answer, the defendant MUST raise […]

affirmative defenses

Affirmative defenses inject a new [...] into the case

fact

All Rule [..1..] defenses can be pleaded as [..2..]

12(b), affirmative defenses

Subject to Rule 12 timing rules, failure to assert an [..1..] in the answer may result in [..2..]

affirmative defense, waiver

(Y/N): Is the plaintiff required to respond to the defendant’s answer?

N

Allegations in the defendant's answer, including affirmative defenses, are presumptively [...] by the plaintiff

denied

Plaintiff has a right to amend the COMPLAINT once no later than [..1..] days after the defendant serves her [..2..]

21, first Rule 12 response

Defendant has a right to amend the ANSWER once no later than [..1..] days after [..2..] it

21, serving

[..1..] defenses omitted from an answer can be added via an amendment by right IF made within [..2..] days of serving the answer

Waivable, 21

IF there is no right to amend, a party must seek [..1..] of court or get [..2..] from the opposing party

leave, written consent

The court will grant leave to amend if [..1..] so [..2..]

justice, requires

Factors considered for granting leave to amend include:

• length of [..1..],

• [..2..] to the other party, and

• [..3..] of amendment

delay, prejudice, futility

Variance occurs when evidence at [..1..] does not match what was [..2..]

trial, pleaded

If the opposing party fails to [..1..] to evidence because of variance, that evidence is [..2..] and the introducing party can move to amend the pleading to [..3..]

fails to object, admitted, conform

If the opposing party [..1..] to evidence because of variance, it is [..2..]

objects, inadmissible

An amended pleading adding a new claim relates back if it concerns the same [..1..], [..2..], or [..3..] as the original pleading

conduct, occurrence, transaction

For statute of limitations purposes, relation back means the amended pleading is treated as having been [..1..] on the original [..2..] date

filed, filing

An amendment CHANGING A DEFENDANT after the SOL runs relates back IF:

• the amendment concerns the same [..1..], [..2..], or [..3..] as the original complaint

and

• the new defendant had such [..4..] of the case within 90 days of the complaint being filing, so won't be [..5..]

and

• the new defendant knew—or should have known—within those 90 days that, but for a [..6..] regarding the proper party's identity, the action would have been brought against them.

conduct, transaction, occurrence, knowledge, prejudiced, mistake

Relation back for changing a defendant typically applies when the plaintiff sued the [..1..] defendant initially but the [..2..] defendant knew about the suit within the service period

wrong, correct

Supplemental pleadings set forth things that happened [..1..] the original [..2..] were filed

after, pleadings

There is no right to file a [..1..] pleading. Instead, a party must make a [..2..]

supplemental, motion

Granting leave to file a supplemental pleading is within the [..1..] of the [..2..]

discretion, trial judge

FRCP 11 applies to all [..1..] (e.g. pleadings, motions) EXCEPT [..2..]

papers, discovery documents

Under FRCP 11, signing, presenting, or later advocating for a filed paper certifies that it was formed after a […]

reasonable inquiry

FRCP 11 certification means the paper is not for an [...] (e.g. to harass, cause unnecessary delay, or needlessly increase litigation costs)

improper purpose

FRCP 11 certification means legal contentions are warranted by [..1..] or by a [..2..] argument for changing or establishing law

existing law, nonfrivolous

FRCP 11 certification means factual contentions have [..1..] support OR will likely have it after further investigation or [..2..]

evidentiary, discovery

FRCP 11 certification means denials of factual contentions are:

• warranted on [..1..] or

• reasonably based on a [..2..] or lack of [..3..]

evidence, belief, information

FRCP 11 certification is a continuing [...] every time the position is presented to the court

certification

The purpose of Rule 11 sanctions is to deter [..1..] conduct, not to [..2..]

repeated, punish

FRCP 11 sanctions may be imposed against the:

• [..1..],

• [..2..], or

• [..3..]

firm, attorney, party

A law firm is [..1..] for FRCP 11 violations by its personnel UNLESS [..2..] make it unjust

jointly responsible, exceptional circumstances

The court can raise FRCP 11 violations [..1..] by issuing an order to [..2..]

sua sponte, show cause

Before [..1..] Rule 11 sanctions, the court must give the sanctioned party an opportunity to be [..2..]

imposing, heard

(Y/N): May FRCP 11 sanctions be nonmonetary?

Y

Monetary FRCP 11 sanctions are often paid to the [..1..], not the [..2..]

court, opposing party

Safe Harbor Provision: A party seeking Rule 11 sanctions cannot [...] file the motion for sanctions with the court

immediately

A Rule 11 Safe Harbor Letter must first be [..1..] on the [..2..]

served, offending party

After receiving a Rule 11 Safe Harbor Letter, the [..1..] party has [..2..] days—the safe harbor period—to [..3..] or [..4..] the challenged paper

offending, 21, withdraw, correct

If the problem regarding the Rule 11 Safe Harbor Letter is not [..1..] or [...2..] within 21 days under Safe Harbor, the Rule 11 motion can then be filed with the [..3..]

corrected, withdrawn, court

Complaint (Initial Pleading): Must include:

• Grounds of [..1..].

• A short statement of the claim showing the pleader is [..2..].

• A demand for [..3..] for relief.

federal jurisdiction, entitled to relief, judgment