Give me some of that 12
What happens if a Def doesn't respond under R12?
They're in default, PL can get default judgment from Def.
What does Rule 54(c) entail?
Default judgment must not differ from or exceed what's demanded in pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in pleadings.
Under R12, if a motion is denied, how long until the party has to respond?
Def must file an answer within 14 days
Under R8(c) Task 2- what are some Tort Affirmative Defenses?
Remember as > Carn- Ifs
Contributory Negligence
Assumption of Risk
Injury by Fellow Servant
Under R8(c) Task 2- what are some Contract Affirmative Defenses?
Remember as > DIPS - FAS - FOC
Duress
Illegality
Payment
Statute of Frauds
Fraud
Accord & Satisfaction
Failure of Consideration
What motion is a 12(b)/ 12(c)?
A judgment
For rule 8(a)(2) can you set out multiple claims?
Yes, in addition to multiple theories. This is included in Rules 8(d)(2) and (3).
What are the 2 ways that a defendant can respond to complaints?
1) Responsive pleading (answer) > Rule 8
2) File motion to dismiss > Rule 12
Under R8(b) Task 1 defenses, admissions and denials give details on # 1 and 2.
1) In General- Responding party must
* State in short/ plain terms defenses to each claim and
* admit or deny allegations asserted by opposing party
2) Denials- Substance
* Fairly respond to substance of allegations
Under R8(c) Task 2- what are some Settlement Affirmative Defenses?
Remember as > RJ - RAA
Res Judicata
Release
Arbitration & Award
Why would a party file motion 12(b) 1-3?
Party filed in wrong court > lack of SMJ, lack of PJ, or improper venue
What is the goal of 8(e)?
Achieve results based on the merits of the case, not technicalities. Therefore, court should overlook minor errors > like typos and format.
Under R12 motion to dismiss, what must it entail?
12(b) present defenses
Every defense to claim for relief in any pleading must be asserted in pre-answer, if required.
Under R8(b) Task 1 defenses, admissions and denials give details on # 3, 4 and 5.
3) General/ Specific
* Good faith to deny all allegations use general denial.
* If not denying all, specifically deny designated allegation or generally deny all except those specifically admitted.
4) Denying part of allegations
* Admit what's true, deny rest
5) Lacking Knowledge/ Information
* If unable to form belief about the truth, state so- this means a denial
Under R8(c) Task 2- what are some Litigation Delayed Affirmative Defenses?
Remember as > LEWS
Laches
Estoppel
Waiver
SOL
What is 12(b)(6) (PL drafted defective claim)?
PL failed to state claim upon which relief can be granted
What 3 factors go into Rule 8(d)?
1) General allegations to be simple, concise and direct
2) Alternative statements of claims/ defenses. Party may set two or more claims/ defenses in the alternative or hypo in one count or defense.
3) Inconsistent claims or defenses, the party may state them all, even if inconsistent.
Under responsive pleading what 3 tasks must the answer contain?
1) Admit or deny allegations
2) State defenses in short and plain terms
3) Optional - counterclaim and or crossclaim
Note > signature at the end
What are 2 consequences if you should have admitted but denied under 8(b)?
1) Party and atty subject to sanctions under R11
2) May be treated as an admission
Under 12(b) what defenses may a party present by motion?
LSMJ
LPJ
IV
IP
ISP
FSC- RG
FTJ- PUR
1) Lack of SMJ
2) Lack of PJ
3) Improper Venue
4) Insufficient Process
5) Insufficient service of process
6) Failure to state a claim upon relief which can be granted
7) Failure to join a party under R19
What is 12(b)(7) PL forgot to make key person a party?
Failure to join a party under R19
What is 8(a)(3) concerned with?
Remedies > $, injunction, request court declare a result (such as invalid contract)
How can the Def and PL each use R12?
Def uses it to seek dismissal of complaint
PL uses it to seek dismissal of counterclaim in answer
What happens if you fail to respond under 8(b)(6)?
Allegations other than damage amounts- admitted if not denied.
But if answer not required, allegation considered denied or avoided.
Under R12, when must Def respond to motion?
W/in 21 days of being served with summons and complaint