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22 Cards in this Set
- Front
- Back
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Complaint Requirements (Federal) |
Short and plaint statement of grounds for subject matter jurisdiction
Short and plain statement of the claim - most things can be alleged generally
Deamnd for relief |
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Service of Process (Federal) - Timing |
Within 120 days of filing the complaint |
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Methods of Service for Individual (Federal) |
Personally serving complaint/summons on D
Leaving summons & complaint at the D's usual place of abode with a person of suitable age and discretion who resides there
Delivering summons & complaint to an agent appointed by the D or otherwise by law to receive service |
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Service of Process (IL) - Timing |
Summons requiring appearance within 30 days after service may not be served later than 30 days after issuance date |
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Methods of Service for Individual (IL) |
Personally
At D's usual place of abode with family member or person residing there who is at least 13 years old, recipient must be informed of summons contents, and must also send copy to D's abode
Service by Publication/Mail if D not found - take out notice & publish, file affidavit that D can't be found, mail to last known address |
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Methods of Service on Corporations (Federal & IL) |
Deliver summons/complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process
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Complaint Requirements (IL) |
All material facts that make up cause of action
Prayer for relief
All causes of action must be set forth in separate counts |
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Motions Against the Complaint - Timing |
Within 21 days of service
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Rule 12(b) Motion to Dismiss |
Lack of subject matter jx (can raise at any time)
Personal jx, improper venue, insufficient process, insufficient service of process (can be raised in preanswer/answer otherwise waived)
Failure to state a claim upon which relief can be granted and failure to join a necessary party (can be raised in any pleading |
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IL Involuntary Dismissal Based upon Defects/Defenses (Section 2-619) |
Must be brought before filing an answer - grounds include: Lack of subject matter jx Lack of capacity by either party Another pending action Statute of Limitations bars the action Statute of Frauds Barred due to affirmative defense |
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Rule 12(b)(6) Motion to Dismiss |
Claim will be dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support a cognizable claim
Courts treat well-pleaded facts as true, resolve doubts/inferences in P's favor and views pleading in light most favorable to P |
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Strength of Facts (Rule 12b6 Motion) |
Must raise right to relief above speculation
Raise reasonable expectation that discovery will reveal evidence of a necessary element |
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Court's Analysis - Rule 12b6 Motion |
1. Identify and reject legal conclusions unsupported by factual allegations
2. Assume truth of well-pleaded facts and include context specific analysis that draws on court's judicial experience and common sense to determine if allegations plausibly give rise to relief |
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Motion for Judgment on the Pleadings |
After answer filed - allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on content of pleadings |
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Answer Requirements |
Must admit or deny P's allegations or pleade lack of sufficient knowledge (with reasonable investigation)
Must state affirmative defenses or they are waived |
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Failure to deny in Answer |
Every allegation not explicitly denied is deemed admitted |
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Answer Timing Requirements |
No motion to dismiss - within 21 days after being served (or 60 days of service waived timely)
Motion to dismiss - no filing while motion pending, 14 days after notice of court's action |
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Reply |
Within 21 days of service of answer
IL - within 21 days after last day allowed for filing of answer |
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Amendments |
Party may amend a pleading once as a matter of right within 21 dyas if no responsive pleading is required
Otherwise - during/after trial if it conforms to evidence and opposing party has opportunity to prepare
Amendments generally allowed on just and reasonable terms any time before final judgment |
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Amendments - Relation Back - New Claim |
A new claim relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading
Won't be time barred by SOL if original case was within SOL |
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Amendments - Relation Back - New Parties |
New parties can be added: 1. Knew/should've known that mistake was made and suit should've been brought against him and not other party 2. New party actually receives notice within SOL, and 3. Dervies from same conduct, transaction, occurrence as original pleading |
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Motion with respect to pleadings: Section 2-615 (IL) |
Attacks defects on the face of the pleadings: lack of facts, insufficient legal conclusions, more definite statement, necessary parties need to be added |
