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14 Cards in this Set

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Stating a claim - 12b6 motion?
Permits d to move to dismiss a complainD on the grounds that the p has failed to state a claim upon which relief c/b granted. Attacks the legal sufficiency of the complaint. A ct m/ assume that all of the factual allegations of the complaint are true and s/n dismiss a complaint for failure to state a claim unless it is clear that the p c/ prove no set of facts in support of his claim which w/ entitle him to relief.
Rule 11?
Restricts the lawyer’s ability to file a pleading when he has no more than a hope that favorable facts or law will emerge as the case progresses.
a. most important constraint on lawyers’ behavior during litigation, but it is not the only one.
b. ct have inherent powers to discipline misbehaving lawyers.
Rule 11(c)(1)(A) - motion for sanctions under the rule s/n/b filed until 21 days after it is served on opposing counsel and the challenged paper is not withdrawn or appropriately corrected. (Safe harbor provision).
Rule 11(c)(2)(A) prohibits the imposition of monetary sanctions on a represented party but authorizes to be imposed on law firms, as well as the particular atty who signs the offending pleading. Absent exceptional circumstances, a law firm s/b held jointly responsible for violations committed by its partners, associates and employees.
Lawyer sanctioned under 11(b)(2) [frivolous] b/c d/n do basic legal research.
Burden of pleading?
Party w/ burden of proving a parties element at trial also has BOP that element. Factors: public policy (if P is favored, D m/b given burden of proving difficult elements)
One must allege that element of the claim or defense; one c/n expect the other party to do so. R8(c)
Burden of production?
at trial, one must produce evidence that tend to demonstrate the proposition at stake.
Burden of persuasion -
one must persuade the trier of fact that one’s version of the facts is more likely than not to be true.
D possible responses to P complaint:
a. reasons why the ct s/n proceed with the action
b. questions as to whether the complaint, if true, provides a basis for legal relief or whether P has joined an essential party
c. denials
d. affirmative defenses
e. requests for clarification and more info.
All responses, but (e), m/b included in D answer.
12(f) - motion to strike if the allegation sin the complaint have no relation to the case or are unnecessarily confusing
Rule 12b motions:
12b motion m/b consolidated in preanswer motion or else waiver (1st appearance rule)
12b1 - lack of SMJ c/b raised at any time.
12b6 (failure to state claim) and 12b7 failure to join) m/b included in subseq answer or postanswer motion
Rule 7:
motion is a request to the ct for an order. D/n specify what kinds of documents constitute a motion.
D must answer the complaint if:
D c/n demur to the complaint or dispose of it on any of the grounds listed in 12(b), must respond to its factual allegations.
M/ include any 12b motion, general or specific denials, affirmative defenses, counterclaims, crossclaims or third party claims.
Denials - Rule 8:
Rule 8(b) - D m/ deny only those allegations that he actually disputes
Rule 8(d) - any allegation that is not denied is deemed admitted.
General denial - denies each and every allegation of the complaint.
i) requires P to prove the truth of the denied allegation at trial.
ii) 8b - requires that general denials be made in good faith.
Affirmative defenses - Rule 8c:
A defense in which D, rather than denying the C allegations, confesses the truth of the C allegations but avers that P theory of liability, even though sustained by the evidence, d/n apply to it b/c of additional facts that place D in a position to avoid any legal responsibility for his action.
M/b presented in the answer, if not, it is waived and c/n be introduced at trial.
Listed in R8c - some but not all.
Reply - Rule 7(a):
Requires P to file a responsive pleading to a counterclaim.
Permits the court to order a reply on its own motion or on the motion of a party.
Rarely ordered. The fact that the answer raises affirmative defenses ordinarily is an insufficient basis on which to order a reply.
P acts like D - c/ counterclaim, answer with affirmative defenses or deny.
Amendments - Rule 15:
Rule 15a - allows a party to amend his pleadings one time as a matter of course
(i) before a responsive pleading is served, or
(ii) w/in 20 days after service of a pleading to which no responsive pleading is permitted, provided that the lawsuit has n/b set for trial.

A party m/ obtain permission from the court b/f it c/ amend its pleadings.
Permission “shall be freely given when justice so requires” - as a practical matter it is incumbent on the party opposing amendment to show good cause why the amendment s/n/b allowed.

Rule 15b - No “doctrine of variance” (than an action m/b dismissed when new evidence is introduced at trial, on the ground that such evidence is outside the pleadings):
-when opposing party d/n object to a party’s attempt to amend the pleadings to conform to new matters the latter wishes to introduce at trial - ct will allow the amendment on the basis of the opposing party’s consent.
-when an objection to an amendment is raised by the opposing party - ct is required to grant leave to amend “freely when the presentation of the merits fo the action w/b subserved thereby and the objecting party fails to satisfy the ct that the admission of such evidence w/ prejudice him in maintaining his action or defense upon the merits.”
-if the objecting party shows prejudice, the “ct may grant a continuance to enable the objecting party to meet such evidence.”
Relation back doctrine:
P or D allowed to amend their pleadings to amend their pleadings to add a new legal theory, a new party, or a new defense, whether or not such new matter arises out of the same factual pattern that forms he basis for the original complaint.

New matter is saved from the SOL if it relates back to the time of the original complaint’s filing. If not, it is barred.

Rule 15c2 - when amendments assert new legal theories, the amend relates back to the original date of filing if it “arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” or when “relation back is permitted by the law that provides the SOL applicable to the action.