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23 Cards in this Set
- Front
- Back
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Rule 8(a) |
A claim, counterclaim, cross-claim, or third party claim shall contain (1) A statement of the court's jurisdiction; (2) A short, plain statement of the claim showing the pleader is entitled to relief; (3) A demand for judgment for the relief sought. |
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Rule 9 |
One need not assert the capacity to sue or be sued, a party's authority to sue or be sued in a representative capacity; or the legal existence of an organized association of persons that is made a party. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge and other conditions of a person's mind may be alleged generally. Condition precedent to the performance of a contract need not be specified one by one; it is sufficient to state in general that all of them have been performed. If an item of special damage is claimed, it must be specifically stated. |
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Qualified immunity |
Government officials are liable if their actions or orders violate constitutional rights; but they enjoy qualified immunity if those actions took place under a reasonable misapprehension of law. |
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Burden of pleading |
A person who must plead an element must also undertake the discovery process to gather supporting evidence of the proposition that can be presented at trial. If the evidence that would be produced for trial is peculiarly in the control of the defendant, let the defendant plead and come forward with evidence on the matter. If it seems that proof will not be available on a point, allocating the burden of pleading to one party will effectively mean that person will lose the case. |
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Burden of production |
The duty to present evidence to the fact finder that is sufficient to satisfy the matter prima facie. The burden of production may well shift during a trial. If the party with the initial burden on a given point satisfied it by producing prima facie evidence, then the opposing party will lose on that point unless that person comes forward with refuting evidence. Effectively, the burden of production shifts to the opposing party. |
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The burden of persuasion |
This is the burden that one party or the other must convince the trier of fact to at least a preponderance of evidence. The burden of persuasion will remain constantly on one party or the other, typically the party who had the initial burden of pleading on the matter. In a tie, the party who bears the burden of persuasion will lose. |
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Inconsistent pleadings |
Alternative claims may be pleaded, even if they are inconsistent. |
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Rule 11(b) |
By presenting to the court a pleading, written motion, or other paper, an attorney or unrepresented person is certifying to the person's best knowledge and belief formed after reasonably inquiry under the circumstances that it is not being presented for an improper purpose like harassment or delay; the claims or defenses are warranted by existing law or by non-frivolous argument for the extension, change, or reversal of existing law; the allegations and other factual contentions have evidentiary support or are likely to have such support after an opportunity for further investigation; and the denials of factual contention are warranted by evidence or are reasonably based on lack of information. |
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Sanctions |
If Rule 11 is violated the court may impose an appropriate sanction on the attorney or parties. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates the rule. The motion must be served under rule 5, but must not be filed or resented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees incurred for the motion. |
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Default and default judgment |
A default is simply a notation in the case filed by the clerk that there has been no answer filed within the time permitted by the rules. A default judgment is a judgement, with the same effect as any other judgment, that is entered because the defendant did not oppose the case. Defendant loses the right to contest liability. |
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Motion |
A motion may have up to five components: the request for an order giving relief, stating with particularity the justifying grounds; the notice of the motion telling the opposing party where and when the motion will be heard; an affidavit setting out any necessary factual information; a memorandum of law explaining the legal basis for the motion, including supporting points and authorities; and a proposed form of order that judge could sign. |
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Pre-answer motion |
This is used when the party has certain preliminary defenses to the claim--defenses which would permit a quick dismissal of the complaint with little cost. Filing a pre-answer motion is optional. |
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12(b) motions |
Serving a 12(b) motion means defendant can hold off serving an answer. If the defendant wins its 12(b) motion, the claim or complaint is dismissed (but may possibly be amended and reserved). If the 12(b) motion is denied, defendant has 14 days from notice of court's ruling to serve a responsive pleading like an answer. Any of the various 12(b) motions may be raised in an answer instead, but if one choses to use a 12(b) motion, only one may be filed; all objections and defenses must be consolidated. If no 12(b) motion is filed, the defendant must serve an answer within 21, 60, or 90 days depending on the circumstances of service of the complaint. |
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waivable defenses |
Some defenses are considered waivable. If they are not asserted in the first defensive paper (either the 12(b) motion or the 12(a) answer), they will be lost. If one files a 12(b) motion and leaves out a waivable defense, that defense may not be asserted in the defendant's answer if the 12(b) motion fails. 12(b)(2)-(5) are all waivable. These are clear from the time the complaint is served and that do not go to the merits of the case, so they should be dealt with at the outset. |
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Non-waivable defenses |
The other defenses are said to be nonviable; that is even if one does not raise them in the first defensive paper, they may be asserted later. 12(b)(3), (6), and (7) are all nonwaivable. |
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Definite statement |
If a party receives a pleading that is so vague or ambiguous that the receiving party cannot reasonably respond, Rule 12(e) permits the party to make a motion requesting the judge to order a more definite statement. |
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To strike |
If one is to make the motion it must be made prior to serving a responsive pleading. The more common use of a 12(f) motion is to remove a part of a complaint that is legally insufficient. Doesn't dismiss the entire complaint. A party may request the court to strike from another's pleading material which is redundant, immaterial, impertinent, or scandalous. |
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Judgment on the pleadings |
Fairly rare because of the breadth of the 12(b) motions and because of the modern Summary Judgment. The judgment on the pleadings comes after the answer--after the close of the pleadings. |
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Answer |
This may contain admissions, denials, affirmative defenses, and claims (counterclaims or cross-claims) |
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8(b) |
The party must state the party's defenses to each claim asserted by the adverse party; the party must admit or deny every allegation of the adverse party; all not denied are deemed admitted. Denials must fairly respond to the substance of the allegation. If one is without info on the matter, that may be stated and it has the effect of being a denial. One need not admit matters that turn on witness credibility. When a pleader intends to deny only a party of an allegation, the pleader must admit the part that is true and deny the rest. |
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Affirmative defenses |
If a legal matter is an affirmative defense, defendant must plead it in the answer or risk not being allowed to introduce evidence about the matter at trial. When in doubt, the safest course as a defendant is to treat a matter as an affirmative defense and plead it. This will ensure that defendant may offer evidence of it at trial. |
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Amendment of pleadings |
A party may amend its pleadings one as a matter of course within 21 days of serving it OR if the pleading is one to which a responsive pleading is required, 21 days after service of the responsive pleading, or 21 days after service of most motions under Rule 12 (whichever is earlier). 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. In responding to an amended pleading, one has 14 days after service, or the original time to respond, whichever is the alter date. |
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Relation back of amendments |
Under Rule 15(c), an amendment of a pleading may relate back in time to the date of the original pleading. Rule 15(c) allows relation back if (a) the particular content of the SOL itself permits relation back; or (b) if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading; or if the party or name of the party is being changed, a relation back is possible within 120 days of filing the complaint if (b) above is satisfied and if the party brought in will not be prejudiced and knew of a mistaken identity. |
