Pleadings

Front 1

All complaints must contain

Back 1

a short & plain statement of the grounds for subject matter jurisdiction
a short and plain statement of the claim showing that the pleader is entitled to relief
a demand for judgment setting out the relief the pleader seeks

Front 2

All averments in a complaint shall be

Back 2

simple, concise, and direct

Front 3

Rule 8- Twombly new "Plausibility" Standard

Back 3

Must assert enough facts on a sufficient detail to make a given cause of action plausible. The decision could result in a swing towards requiring complaints to set forth facts implicating each element of a claim

Front 4

Under what instances is more than just a "short and plain statement" of the claim required?

Back 4

Cases alleging fraud or mistake (must be stated with particularity)
Special Damages (must be stated with particularity)
A plaintiff's failure to properly plead her claim can subject her to 12 (b)(6) motion

Front 5

Three things a party can do in response to a complaint

Back 5

Answer & Raise Defenses
File a Pre-Answer Motion
Do nothing and suffer a default (FRCP 55)

Front 6

An answer contains

Back 6

Denials and/or defenses.
(deny the allegations and/or assert the defenses)

Front 7

Denials can be

Back 7

general or specific

Front 8

General Denial

Back 8

The D denies everything in the complaint. A party can almost never safely make a general denial consistent with the requirements of FRCP 11

Front 9

Specific Denial can take three forms

Back 9

A Defendant can:
* deny specific allegations of the complaint and admit the rest
* admit specific allegations of a complaint and deny the rest
* if the D lacks sufficient info, he can deny the allegation but must specify his lack of knowledge or info

Front 10

If a Defendant fails to deny an allegation...

Back 10

It is deemed admitted.

Front 11

Rule that bars or reduces a defendant's liability

Back 11

FRCP 8 (c)
19 defenses

Front 12

Rule for the "Catch All" Provision that makes other defenses available

Back 12

FRCP Rule 8 (d)

Front 13

The defendant must plead these in his answer in order to raise them at trial

Back 13

affirmative defenses

Front 14

Counterclaim

Back 14

Claims asserted against the plaintiffs

Front 15

Cross-Claims

Back 15

Claims asserted to other defendants or third parties.

Front 16

Reply

Back 16

The plaintiffs' response to the defendant's counterclaim.

Front 17

Allows a defendant to respond to a complaint with a motion asserting any of the following defenses:

Back 17

FRCP 12 (b)
1. Lack of subject matter jurisdiction- Rule 12b (1)
2. lack of personal jurisdiction Rule 12b (2)
3. Improper Venue- Rule 12b(3)
4. Insufficiency of process- Rule 12b(4)
5. Insufficiency of Service of Process- Rule 12b (5)
6. Failure to State a Claim for which Relief can be Granted- Rule 12b(6)
7. Failure to join a party under Rule 19 (Rule 12b(7)

Front 18

FRCP 12 (e)

Back 18

Allows a party to move for a more definite statement

Front 19

If motion for Rule 12(e) is granted, then

Back 19

the order granting the motion must be obeyed within 10 days.

Front 20

If Motion for 12 (e) granted but not obeyed within 10 days, the Court may

Back 20

Strike the Pleading
Rule 12 (e) is NOT a defense just an objection to its form.

Front 21

FRCP 12 (f)

Back 21

Allows a motion to strike
Rule 12 (f) is not a "defense" just an objection to its form.

Front 22

FRCP 12 (g)

Back 22

Allows a party to bring all of the defenses or objections allowed by Rule 12 in a Rule 12 Motion

Front 23

A Rule 12 motion might...

Back 23

include all of the defenses in Rule 12 (b) and the objections of Rule 12 (e) (more definite statement) and 12 (f)(motion to strike) or only some.

Front 24

If a Defendant brings a pre-answer motion raising, for example, one of all of the defenses or objections set forth in Rule 12

Back 24

he cannot later file a successive Rule 12 motion raising three more Rule 12 defenses or objections.

Front 25

Is a pre-answer motion required?

Back 25

No

Front 26

If a party files a Rule 12 Pre-Answer Motion and omits the following defenses, she is barred not only from raising those defenses in a successive Rule 12 motion but is barred from EVER raising those defenses:

Back 26

Lack of Personal Jurisdiction
Improper Venue
Insufficiency of Process
Insufficiency of Service of Process

Front 27

If a party does not file a pre-answer motion....

Back 27

she may assert the 4
LPJ
IV
IP
ISP

Front 28

FRCP 12 (h)1

Back 28

If 4 major defenses (LPJ, IV, IP, ISP) not in answer, that or those defenses are waived.

Front 29

FRCP Rule 12(b) Defenses that are NEVER waived

Back 29

Lack of Subject Matter Jurisdiction
Failure to state a claim upon which relief can be granted
Failure to join an indispensible party
(Can be raised at any time, even after trial)

Front 30

When a Defendant might raise a 12b(6) Motion (Failure to state a claim)

Back 30

When P failed to plead the necessary elements of a recognized COA
When P fails to plead one of the elements necessary to support her claim
When P asserts in her complaint a claim that simply is not recognized.

Front 31

What factor is not a basis for a Rule 12b6 motion?

Back 31

D's denial of a P's factual allegations (or controverting those allegations with other facts or evidence)

Front 32

A plaintiff must serve a defendant her complaint...

Back 32

Within 120 days.

Front 33

A defendant must answer or file a pre-answer motion

Back 33

within 120 days of service of the complaint.

Front 34

If defendant has waived service of process, the time is extended to

Back 34

60 days.

Front 35

If D files a Pre-Answer Motion, and the Court denies that motion, then...

Back 35

the defendant must answer the complain within 10 days after notice of court's action.

Front 36

If D moves for a more definite statement and the court grants that motion, then....

Back 36

the D must answer the complaint within 10 days after P serves the more definite statement.

Front 37

FRCP 15(a)

Back 37

A Party may amend "once as a matter of course" (without permission from the court or consent of the other parties).

Front 38

FRCP 15(a) The amendment must come

Back 38

before a responsive pleading is served OR
within 20 days of serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.

Front 39

After the first amendment, a party may amend its pleading

Back 39

with the opposing party's written consent or Court's permission. The court should freely give leave when justic so requires.

Front 40

A party can amend its pleadings

Back 40

during or after trial.

Front 41

Relation Back

Back 41

When a party wants to add new claims to his complaint after the statute of limitations for that claim has expired.

Front 42

If original pleading was filed before SOL expired for newly-asserted claim, and the newly asserted claim relates back, then....

Back 42

the new claim will not be barred by the SOL

Front 43

When amendment presents a new claim that is factually unrelated to the original claims, it must....

Back 43

independently satisfy the statute of limitations.

Front 44

An amendment changing or adding new parties to the lawsuit relates back to the date of the original complaint when:

Back 44

the claim against the new party arose out of the conduct, transaction, or occurrence set out in the original pleading AND
if within the time serving teh complain, the party to be added:
received notice of the action so that it will not be prejudice and knew or should have known that the action would have been brought against it.

Front 45

FRCP 11
Four things attorney certifies in a pleading, motion, or other paper

Back 45

1. she is not presenting a paper for any improper purpose, such as to harass, cause unnecessary delay, or increase litigation costs;
2. the legal contentions are warranted by existing law or by a non-frivilous argument for the extent of existing law or establishment of a new law.
3. the factual contentions have evidentiary support after further investigation or discovery;
4. the denials of factual contentions are warranted on the evidence or if specifically so identified are reasonably based n a lack of information or belief

Front 46

American Rule for Attorneys Fees

Back 46

Each Party pays its own attorneys fees

Front 47

Fee Shifting- one parties' fees are shifted to the other when:

Back 47

1. Pursuant to a contract between the parties.
2. Pursuant to a fee-shifting statute-when a legislature creates a COA by statute, it might also provide that the loser pay the winner's attorney's fees

Front 48

Rule 68- Offer of Judgment

Back 48

If P rejects D's formal settlement offer but at trial recovers less than the amount the D offered, the P must pay the cost the D incurred AFTER making the offer

Front 49

Rule 68 Offer of Judgment- If P sued under a statute that shifts fees,

Back 49

costs do include the P's attorneys fees. P is responsible for the fees that the P incurred after the D made the offer of judgment.

Front 50

If offer not accepted under Rule 68 then P

Back 50

cannot recover from D the attorneys fees he incurred after D made offer.