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12 Cards in this Set
- Front
- Back
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Two types of pleadings in a federal action
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Complaint and answer
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Third document that shows up sometimes after the answer
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Reply
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Two times to use a reply
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1) If the answer contains a counterclaim (reply is required)
2)At P's option, if P obtains court order allowing reply |
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Do pleadings in a federal action need to be verified? What are the exceptions to the general rule?
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(Verified means sworn to by litigant) No. Exceptions - complaints in stockholders derivative action and when complaint is seeking a TRO.
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What happens if Rule 11 is violated and the attorney files a pleading for an improper purpose?
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Sanctions may be granted - most commonly, attorney's fees
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How do you avoid sanction if a Rule 11 motion is made against you?
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You have a 21-day safe harbor period to correct the error.
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Describe pleading in the alternative. Give an example.
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Either P or D may set forth two or more statements alternately or hypothetically. FRCP 8(e).
P claims work done for D was done under a valid written K. Then, P claims that if the K was not valid, P rendered value to D and can recover in quantum meruit for the value. |
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When does an action commence?
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When the complaint is filed. This is important for statute of limitation purposes.
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Three essential elements of the complaint.
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1) Short and plains statements of the grounds upon which the jurisdiction depends.
2)Short and plain statement of the claim showing that the pleader is entitled to relief. 3) A demand for judgment for the relief. This comes from FRCP 8(a). |
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Since specificity isn't required in the complaint, what are two things that aren't required?
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Legal theory not required, only the facts.
Facts necessary to demonstrate a prima facie case aren't required. As long as P gives enough facts to put D on notice, then it's irrelevant that P has failed to allege something he will ultimately have to prove, |
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What are the special matters that must be pleaded with particularity if they are to be raised at trial?
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1)Denial or party's legal capacity to sue or be sued
2)Circumstances giving rise to an allegation of fraud or mistake 3)Denial of performance or occurrence of a condition precedent 4)Existence of judgments or official docs on which the pleader plans to rely. 5)Material facts of time and place 6)Special damages 7)Admiralty or maritime jurisdiction |
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What if the special matters aren't in the original claim?
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Even if the issue comes up at trial, the party can't recover the damages unless the court makes an exception.
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