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38 Cards in this Set

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  • Back
What is the basic purpose of pleading?
To give notice of the general character of the controversy between the parties
What is the high level summary of pleadings in the united states?
First we had the stringent common law forms of action; then, NY led with code pleading; then the federal rules further liberalized pleadings (notice pleading)
What is the standard for a sufficient complaint under federal rules?
A "short and plain statement of the claim showing the pleader is entitled to relief"
When is a civil action commenced?
At the time of filing the complaint
What are the five key parts of the complaint document?
(1) Caption; (2) jurisdictional allegations; (3) body; (4) prayer for relief; (5) subscription
What should the body of the complaint look like?
Under code pleading: a statement of the ultimate facts in the cause of action. Under federal rules: a short and plain statement of the claim showing the pleader is entitled to relief. Each claim or cause of action should be set forth in a separate group of paragraphs, and each paragraph should be limited to a single set of facts.
What is the standard when making allegations in your complaint?
They should be simple, concise, and direct. A plaintiff who lacks personal knowledge on an element may plead "to the best of his knowledge, information, and belief" that the claim is "well grounded in fact". In federal court, reasonable inquiry first must be made pursuant to Rule 11.
What about pleading in the alternative or inconsisten allegations?
You can plead inconsistent legal theories and you can even allege inconsisten facts. However, an election of remedies must be made before judgement
What should the prayer for relief section of the complaint contain?
The amount in controversy. If the defendant defaults, the award cannot be higher than this. Further, you might need to specify whether this is a legal or equitable action.
What does the subscription signature certify on the complaint?
(1) To the best of the attorney's knowledge formed after reasonable inquiry, the evidentiary contentions have evidentiary support or are likely to have support after discovery, (2) the claims or defenses are warranted by existing law or a good faith argument for change in existing law, and (3) the complaint is not presented for any improper purpose.
Which party needs to plead elements in the complaint or answer?
Elements of claim are established be the susbstantive law. Responsibility to plead and prove may be allocated. If a plaintiff must plead an element then it is essential to stating a claim. Otherwise it is an affirmative defense which must be raised by defendant.
Discuss joinder of claims and "permissive joinder"
There is no compulsory joinder. Under federal rules, a signle plaintiff may join as many claims as he has against a single defendant regardless of subject matter. However, in multi party cases at least one of the claims by or against each party must arise out of the same transaction and must involve a common question of law or fact.
What is the motion to dismiss? [+rule number]
It can be made on the grounds such a lack of subject matter or personal jurisdiction, improper venue, or a failure to state a claim. If the motion is granted, a court has discretion to allow the plaintiff to amend the complaint. FRCP 12(b)
What is the test for the sufficiency of the complaint?
Plaintiff need only set out facts sufficient to outline her cause of action or claim
What is the motion for more definite statement? [+rule number]
Permits a very limited attack on the form of pleadings. Granted when a pleading is so vague that it would be unreasonable to require the moving party to reply to it. FRCP 12(e)
How long do you have to file a motion to dismiss?
A rule 12 motion must be filed within the time for answering and its filing extends the time to answer
What about waiver of defenses with the motion to dismiss?
If D fails to file Rule 12 mtion or if she files but fails to include all defenses, she waive objections to the form and the defenses of lack of vnue, personal jurisdiction, or sufficiency of process. However, the defenses of lack of subject matter jurisdiction, failure to join an indispensable party, and failure to state a claim are not waived.
What are Rule 11 sanctions?
They are discretionary. Can be monetary or nonmonetary. Limited to what is necessary to deter repetition. Firms can be jointly liable.
What is the procedure for a Rule 11 motion?
Must give nonmoving party notice and 21 days to withdraw or correct the sanctionable paper. Court can also impose sanctions on its own initiative.
What is the rule for denials in the defendant's answer?
They must contain effective denials to put plaintiff's allegations at issue. If material allegations are not denied then they court will hold them admitted.
Can defendant make a general denial in the answer?
Yes, but because federal practice requires a pleading of good faith a general denial is rarely proper (there is usually something in a complaint that defendant must admit).
What are specific denials in defendant's answer?
Denial by parts. You can negate an allegate (I was not speeding) or aver a lack of sufficient information to respond.
What is the rule for affirmative defenses in the defendant's answer?
Any defense or objection constituting new matter or an affirmative defense must be pleaded in the answer. New matter would be anything D must prove to avoid P's claim. TEST is whether D would bear burden of proof on the point at trial.
What is the procedure for answering a complaint?
Same Rule 11 applies except that the defendant can deny based on "lack of information". Answer must be filed w/in 20 days of service unless defendant files a 12(b) motion.
What is the rule for counterclaims?
Defendant may set forth as many counterclaims in the answer as she wants even if not related to plaintiff's claims in the complaint
What is the different between permissive and compulsory counterclaims?
It is permissive if D's counterclaim is unrelated to plaintiff's claims. It is compulsory when arising out of the same transaction and must be asserted in this action or will not be allowed in later actions.
What is the rule for cross-claims in federal practice?
D may allege in ansewr and claims against a co-defendant that relate to the same transaction or occurrence (especially contribution or indemnification)
What is impleader and what is the rule?
An impleader is a claim against a third party not a party to original action. Only allowed for indemnification and contribution claims.
What is the rule for amending pleadings before trial?
Either party may amend once either before the other party serves a responsive pleading or, if no responsive pleading is permitted and the action is not yet on the trial calendar, within 20 days after he pleading is served. Otherwise, you need the court's permission but this is pretty liberal.
What is the relation back doctrine?
If P wants to amend and statute of limitations has run then if the amended pleading arose out of the same conduct, transaction, or occurrence as the original complaint it will be allowed.
What is the standard for permissive joinder (3)?
(1) A right to relief is asserted by her jointly, severally, or in the alternative; (2) arises out of the same transaction or series of transactions; (3) at least one question of law or fact common to all parties
What is the rule for compulsory joinder?
Required for any person who has a material interest in the case and whose absence would result in substantial prejudice to him or to other parties
What was the traditional approach to compulsory joinder?
Traditionally, a distrinction was made between necessary parties and indispensable parties
What is the modern approach to compulsory joinder?
Focus on practical consequences of an interested person's absence. The interested person should be joined if it would prevent complete relief OR absence would substantially prejudice other parties' interest. If this person should be joined but cannot, court has discretion to determine whether to proceed or dismiss.
What is the procedure for impleader?
Leave of court not required for impleader if D files 3rd party complain w/in 10 days after serving original answer.
Does a cross claim fall under the same standard as impleader?
No. Impleader is against someone not a party. Cross claim need not be based on a claim for indemnification.
What is an intervenor?
A party who wants to join a lawsuit to protect against prejudicial effects
What are the two competing policies when deciding whether to allow in an intervenor?
(1) Plaintiff should be master of the suit and (2) other interested parties and the court have an interest in avoiding multiplicity of litigation or inconsistency of results