Seepee: Pl(Ead)Ings

Front 1

What does Rule 7 do?

Back 1

Tells what pleadings are allowed

Front 2

What types of pleadings are allowed, and describe each

Back 2

1. Complaint: paper filed by the Plaintiff that specifies all claims he has against the Defendant
2. Answer: paper filed by the Defendant in which they respond to all of Plaintiff’s claims and files any counterclaims. (However, Defendant may raise certain defenses prior to the answer by filing a motion.)
3. Reply: Plaintiff’s response to a Defendant’s answer. However, this is given only when the Defendant’s answer contains a counterclaim that is explicitly designated a counterclaim (or if court orders a reply).

Hint 2

C-A-R

Front 3

What must be contained in the heading of a pleading?

Back 3

a. ID court
b. Plaintiff
c. Defendant

Front 4

What is required in a motion?

Back 4

a. Motion must be in writing; however, the writing requirement can be satisfied by written notice of hearing on motion
b. Motion must state with particularity the grounds on which the motion is based
c. The motion must state the relief sought
d. All motions must be signed in accordance with Rule 11

Front 5

What does Rule 8 mandate?

Back 5

Contents of a modern complaint:
1. Basis for Jurisdiction
2. Short and plain statement of the claim showing what pleader is entitled to
3. Demand for judgment setting out relief plaintiff seeks

Hint 5

J-C-R

Front 6

When might elevated standards apply to a pleading?

Back 6

1. Elevated standards: Although short and plain statement standard applies to vast majority of claims, the Federal Rules of Civil Procedure impose higher standard of specificity for certain issues
a. Fraud and mistake: A party who brings a claim based on fraud or mistake must state the circumstances surrounding fraud or mistake with particularity (9b)
b. Special Damages: A party who claims any item of special damages must state those damages with particularity (9g)

Front 7

What will the court do if D fails to answer P's complaint?

Back 7

a. The court will force the defendant to respond to plaintiff’s complaint by entering a judgment against her for failing to do so (FRCP 55)

Front 8

What are the 2 basic ways in which D can respond to P's complaint?

Back 8

i. Answer is defendant’s required response in which defendant deals with all of plaintiff’s allegations
ii. However, before filing answer, defendant may make one or more motions challenging specific issues

Front 9

What is the purpose of a pre-answer motion?

Back 9

The pre-answer motion permits defendant to raise certain types of objection to the action at a very early state of the litigation
i. If defendant makes no such motion or if it’s denied, defendant must file additional pleading – an answer

Front 10

How do Rules 7 and 12 treat pre-answer motions?

Back 10

FRCP 7 provides that a party seeking any form of relief from a court will usually ask for that relief by motion
i. In addition, FRCP 12 allows a defendant to raise certain defenses and objections – matters usually raised in the answer – in a pre-answer motion. Rule 12(b) allows defendant to move for dismissal of the case, while Rules 12(e) and (f) ask the plaintiff to correct part of the complaint

Front 11

What are the defenses that Rule 12 allows to be raised by motion?

Back 11

i. Lack of subject matter jurisdiction (FRCP 12(b)(1))
ii. Lack of personal jurisdiction [FRCP 12(b)(2)]
iii. Improper venue [FRCP 12(b)(3)]
iv. Insufficiency of process [12(b)(4)]
v. Insufficiency of service of process [12(b)(5)]
vi. Failure to state a claim upon which relief can be granted [12(b)(6)]
vii. Failure to join a party as required by Rule 19 [12(b)(7)]

Front 12

What is the standard by which a 12(b)(6) defense is judged?

Back 12

When considering a 12(b)(6) motion, Court applies notice pleading standards
1. Thus, a court dismisses only if there is no reasonable way to construe a complaint to allege a recognized cause of action

Front 13

Name 2 ways in which a complaint can be defective

Back 13

1. Facts: Plaintiff may have left out allegations concerning one crucial element of a given claim. Given “notice pleading” approach of rule 8(a), though, these cases are rare
2. Law: Plaintiff may have fully set out facts but those facts don’t allow P to recover under any legal theory

Front 14

What happens if a 12(b)(6) motion includes facts not set forth in the pleadings?

Back 14

the court treats the motion as one for summary judgment

Front 15

What happens in federal court when D's 12(b)(6) motion is granted?

Back 15

in federal court, a 12(b)(6) dismissal for failure to state a claim is a dismissal on the merits unless the court specifies otherwise. FRCP 41(b)
1. Claim preclusion: a dismissal on the merits prevents plaintiff from bringing any claim against the same defendant based on the same underlying set of facts
2. Some states don’t treat dismissal for failure to state a claim as a dismissal on the merits, even if the state rules otherwise mirror federal rules

Front 16

If a party makes a 12(e) motion, what is he claiming?

Back 16

i. Rule 12(e) motion for a more definite statement: 12 also allows defendant to challenge a complaint because it is ambiguous or includes objectionable material
1. Must be specific: The motion must specify the ambiguous portions of the pleading
2. Rarely used: In practice, if claim is truly too ambiguous to allow the party to frame an answer, the party usually simply moves to dismiss for failure to state a claim (12(b)(6)

Front 17

If a party makes a 12(f) motoin, what is he claiming?

Back 17

ii. Rule 12(f) motion to strike: 12(f) allows a party to move to strike portions of a pleading that are redundant, immaterial, impertinent or scandalous
1. Timing: motion must be made before a responsive pleading is served or, if no responsive pleading is served, within 20 days of service of the pleading
2. Redundant or superfluous material: Courts rarely grant these motions merely because a pleading contains some redundant or superfluous material. However, if the party served with the pleading faces a considerable burden responding to the immaterial information, the court m ay order the extra material to be stricken
3. Dismissing portions of the complaint: 12(f) may also be used to dismiss some, but not all, of the counts in a complaint. Some courts don’t allow a 12(b)(6) motion to be used in these situations. In these courts, the Rule 12(f) motion can be used to strike the improper counts

Front 18

What do rules 12(g) & 12(h) tell you?

Back 18

12(g) and 12(h) set out strict time deadlines governing when defenses must be raised. If a party fails to raise certain defenses in time, she is deemed to have waived the defense

Front 19

Can a party raise more than one Rule 12 defense in a single motion?

Back 19

b. Joinder of defenses: 12(g) allows a party who raises a Rule 12 defense by pre-answer motion to join all rule 12 defenses available to that party
c. Waiver of omitted defenses: However, if a party raises any Rule 12 defense or objection by pre-answer motion but omits a defense of lack of personal jurisdiction, improper venue, insufficiency of process, or insufficiency of services of process, the party waives the omitted defense for the remainder of the action. [12(h)(1)]
i. 12(g) precludes the party from avoiding waiver by filing a 2nd pre-answer motion
ii. Strict waiver rule doesn’t apply to lack of subject matter jurisdiction, failure to state a claim, and failure to join a party under Rule 19. [12(h)(2)&(3)]
1. Even if a party raises a pre-answer motion asserting a different Rule 12 defense, the party preserves these 3 defenses
2. However, the party may not raise these defenses in a 2nd pre-answer motion. Instead, in the case of failure to state a claim or failure to join a Rule 19 party, the defense may be raised only in a pleading, a motion for judgment on the pleadings, or a trial. Any party can raise the question of subject matter jurisdiction at any time

Front 20

How much time does a party have to file an answer?

Back 20

12(a) requires defendant to file an answer within a certain time period. Period varies depending on defendant and whether plaintiff asked defendant to waive service
1. Default Rule – 20 days: In most cases, defendant must serve its answer within 20 days of the date she was served with the summons and complaint. [12(a)(1)(A0]
2. Effect of waiver of service: If defendant agrees to the plaintiff’s request to waive service, these time periods are automatically extended. A domestic defendant who waives service has 60 days following the date the request was sent to answer. [12(a)(1)(B)]. A defendant situated outside the United States has 90 days following the date the request was sent to answer. [12(a)(1)(B)]
3. US as a defendant: have 60 days to answer

Front 21

What effect does D's filing of a pre-answer motion have on his duty to timely answer?

Back 21

If a party files a pre-answer motion, the time to answer is extended
1. In most cases, the defendant is required to answer within 10 days of the court’s ruling on the motion. [12(a)(4)(A)]. Of course, if the court grants a motion to dismiss the action, defendant is not required to file an answer
2. If the court grants a motion for a more definite statement, the answer must be filed within 10 days of the date the more definite statement is filed. [12(a)(4)(B)]

Front 22

How must a defendant respond to the allegations of P's complaint?

Back 22

Admit or deny

Front 23

What happens if D fails to deny one of P's allegations?

Back 23

Pursuant to 8(d), failure to deny an allegation made in a pleading constitutes an admission of the matter in question
1. Exception: Defendant is not required to deny averments relating to damages. Thus, a defendant can litigate amount of damages at trial even if it did not deny the prayer for relief in its answer
2. Responsive pleading required: Failure to deny operates as an admission only when a responsive pleading is required. If no responsive pleading is required to a particular pleading, all averments in that pleading are automatically deemed to be denied. 8(d)

Front 24

What should D do if he doesn't have enough knowledge but needs to deny a claim?

Back 24

8(b) allows a defendant to plead that it is “without knowledge or information sufficient to form a belief as to the truth of an averment”
1. Effect: A response alleging lack of information is treated as a denial. Thus, the issue remains in controversy for purposes of discovery and trial

Front 25

What does Rule 8(b) demand?

Back 25

All averments in a pleading must be made in good faith and be grounded in fact

Front 26

What happens if an denial does not fairly meet the substance of the averment denied?

Back 26

A denial that fails to meet this standard is called an ineffective denial. An ineffective denial may constitute an admission of the matter in question
1. Partial denials: If defendant in good faith intends to deny only part of an averment, it must specify which portions it denies
2. Objection permitted: No specific rule covers it, but the rules allow a party to object to the form of a denial. [12(h)(2)]
3. Caveat: 8(f) provides that pleadings should be construed to do substantial justice. This applies to answers as well as complaints
a. Therefore, courts are not likely to treat an ineffective denial as an admission unless the defendant intended to mislead the plaintiff or unless the plaintiff has irreversibly relied to its detriment on the misleading denial

Front 27

What is a general denial?

Back 27

rarely done, a general denial is when defendant denies every allegation of the entire complaint. 8(b)

Front 28

What is a defense?

Back 28

A reason, put forth by D, as to why P is not entitled to recovery - D argues even if facts are true, P can't recover

Front 29

What is an ordinary defense?

Back 29

An ordinary defense considers only the complaint and argues that plaintiff may not recover because of procedural, legal, or pleading defect. All of the 12(b) defenses fall in this category

Front 30

What is an affirmative defense?

Back 30

An affirmative defense usually involves the introduction of new facts that, when coupled with the facts alleged by P, prevent P from recovering

Front 31

Name some examples of affirmative defenses

Back 31

8(c) defines following as affirmative defenses: accord and satisfaction, arbitration and award, assumption of the risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations and waiver

Front 32

How do the FR's resolve who has the burden of pleading certain issues?

Back 32

Rules 8(c) & 12(b): These rules help resolve the burden of pleading issues for many common issues. By providing that certain issues are defenses, those rules clearly put the burden of pleading the issue on the defendant

Front 33

Distinguish burden of pleading from burden of production.

Back 33

The burden of pleading must be distinguished from the burden of production. Burden of production determines who must introduce evidence on that issue at trial. It is an issue in summary judgment and judgment as a matter of law

Front 34

Why might one want to amend a pleading?

Back 34

A pleading can be changed to cure a defect in the original, to reflect new information acquired since the original, or to incorporate events that occurred after the pleading was filed

Front 35

Per Rule 15, when may a party amend a pleading?

Back 35

(1) before Answer (if pleading is complaint, answer w/ counter-claim, cross-claim or 3rd party complaint); OR
(2)If no response is required, w/in 20 days after original pleading to be amended was served; (3)Or by leave of court; (4)Or by written consent from opposing party

Front 36

When will leave to amend be denied?

Back 36

Only if it unfairly prejudices other party

Front 37

When is permission of the court required to amend?

Back 37

If party wants to amend after deadlines in Rule 15 or to amend a second time within the period, she must obtain the permission of the court
1.However, Rule 15(a) indicates that leave to amend “shall be freely given when justice so requires”
2.In practice courts are very accommodating

Front 38

What is relation back?

Back 38

15(c) allows some amendments to relate back to the date of the original pleading

Front 39

When is relation back important?

Back 39

when a party wants to add new claims after the statute of limitations has expired

Front 40

What does Rule 15(c) do?

Back 40

determines whether amended pleading is treated as though it was filed on date of original pleading or date of filing amendment

Front 41

Explain how relation back works.

Back 41

When pleading has been amended, if claim or defenses asserted in amended pleading arise out of same transaction, occurrence, or conduct, the amendment “relates back” to date of original pleading. [think sol]
(Remember, this amended not new info arising out of same transaction, occurrence of conduct)

Front 42

When is relating back allowed?

Back 42

(1) when SOL allows relation back of amended pleadings
(2) Same Tx, Oc, Conduct
(3) if new party is named or party's name is unknown
(4) if party knew ID of person involved, but didn't name them in complaint, IT WON'T RELATE BACK

Front 43

When is Rule 15(b) utilized (amendments to conform to evidence)

Back 43

(1)During trial, if a party attempts to introduce evidence on matters outside the pleadings, the other parties may object
(2)However, if a party fails to object, he’s deemed to have impliedly consented to litigation of the issues raised in the evidence
(3)Also, a party may expressly consent to litigation of matters outside pleadings

Front 44

What are the results of using 15(b)?

Back 44

(1)If a party consents, 15(b) says any issues raised “shall be treated in all respects” as if they were raised in the pleadings and allows party to amend pleadings to make them conform to new issues
(2)Even if party objects to introduction of new evidence, issue may end up forming part of trial. 15(b) provides that court should freely allow amendments to pleadings at trial if it will help resolve the merits of the action, unless late amendment would cause the other parties undo prejudice

Front 45

When is the supplemental pleading rule (15(c)) used?

Back 45

When party wants to supplement original pleadings to set forth new matters

Front 46

How does one supplement the pleadings?

Back 46

(1)Must file motion to add pleading for events that have occurred since original pleading
(a)Must be same Tx or Oc

Front 47

Distinguish the purpose of supplemental pleadings from amendments.

Back 47

(1)Supplemental set forth facts that arise after original pleading was filed
(2) Amended deal w/ facts existing at time of legal pleading but change way those facts are alleged or claim defenses arising out of those facts

Front 48

Distinguish getting court permission in supplemental pleadings and amended pleadings

Back 48

(1) supplemental pleadings always require court permission
(2) leave to amend is freely given