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50 Cards in this Set

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All complaints must contain
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
All averments in a complaint shall be
simple, concise, and direct
Rule 8- Twombly new "Plausibility" Standard
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
Under what instances is more than just a "short and plain statement" of the claim required?
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
Three things a party can do in response to a complaint
Answer & Raise Defenses
File a Pre-Answer Motion
Do nothing and suffer a default (FRCP 55)
An answer contains
Denials and/or defenses.
(deny the allegations and/or assert the defenses)
Denials can be
general or specific
General Denial
The D denies everything in the complaint. A party can almost never safely make a general denial consistent with the requirements of FRCP 11
Specific Denial can take three forms
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
If a Defendant fails to deny an allegation...
It is deemed admitted.
Rule that bars or reduces a defendant's liability
FRCP 8 (c)
19 defenses
Rule for the "Catch All" Provision that makes other defenses available
FRCP Rule 8 (d)
The defendant must plead these in his answer in order to raise them at trial
affirmative defenses
Counterclaim
Claims asserted against the plaintiffs
Cross-Claims
Claims asserted to other defendants or third parties.
Reply
The plaintiffs' response to the defendant's counterclaim.
Allows a defendant to respond to a complaint with a motion asserting any of the following defenses:
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)
FRCP 12 (e)
Allows a party to move for a more definite statement
If motion for Rule 12(e) is granted, then
the order granting the motion must be obeyed within 10 days.
If Motion for 12 (e) granted but not obeyed within 10 days, the Court may
Strike the Pleading
Rule 12 (e) is NOT a defense just an objection to its form.
FRCP 12 (f)
Allows a motion to strike
Rule 12 (f) is not a "defense" just an objection to its form.
FRCP 12 (g)
Allows a party to bring all of the defenses or objections allowed by Rule 12 in a Rule 12 Motion
A Rule 12 motion might...
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.
If a Defendant brings a pre-answer motion raising, for example, one of all of the defenses or objections set forth in Rule 12
he cannot later file a successive Rule 12 motion raising three more Rule 12 defenses or objections.
Is a pre-answer motion required?
No
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:
Lack of Personal Jurisdiction
Improper Venue
Insufficiency of Process
Insufficiency of Service of Process
If a party does not file a pre-answer motion....
she may assert the 4
LPJ
IV
IP
ISP
FRCP 12 (h)1
If 4 major defenses (LPJ, IV, IP, ISP) not in answer, that or those defenses are waived.
FRCP Rule 12(b) Defenses that are NEVER waived
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)
When a Defendant might raise a 12b(6) Motion (Failure to state a claim)
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.
What factor is not a basis for a Rule 12b6 motion?
D's denial of a P's factual allegations (or controverting those allegations with other facts or evidence)
A plaintiff must serve a defendant her complaint...
Within 120 days.
A defendant must answer or file a pre-answer motion
within 120 days of service of the complaint.
If defendant has waived service of process, the time is extended to
60 days.
If D files a Pre-Answer Motion, and the Court denies that motion, then...
the defendant must answer the complain within 10 days after notice of court's action.
If D moves for a more definite statement and the court grants that motion, then....
the D must answer the complaint within 10 days after P serves the more definite statement.
FRCP 15(a)
A Party may amend "once as a matter of course" (without permission from the court or consent of the other parties).
FRCP 15(a) The amendment must come
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.
After the first amendment, a party may amend its pleading
with the opposing party's written consent or Court's permission. The court should freely give leave when justic so requires.
A party can amend its pleadings
during or after trial.
Relation Back
When a party wants to add new claims to his complaint after the statute of limitations for that claim has expired.
If original pleading was filed before SOL expired for newly-asserted claim, and the newly asserted claim relates back, then....
the new claim will not be barred by the SOL
When amendment presents a new claim that is factually unrelated to the original claims, it must....
independently satisfy the statute of limitations.
An amendment changing or adding new parties to the lawsuit relates back to the date of the original complaint when:
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.
FRCP 11
Four things attorney certifies in a pleading, motion, or other paper
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
American Rule for Attorneys Fees
Each Party pays its own attorneys fees
Fee Shifting- one parties' fees are shifted to the other when:
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
Rule 68- Offer of Judgment
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
Rule 68 Offer of Judgment- If P sued under a statute that shifts fees,
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.
If offer not accepted under Rule 68 then P
cannot recover from D the attorneys fees he incurred after D made offer.