Rule 8 and 9
A defendant answers with a counter claim, what must be included?
8(a): A statement of subject matter jurisdiction, a statement of the claim showing defendant is entitled to relief, and a demand for relief
8(b): A statement in short and plain terms of its defenses to each claim asserted against it, admission or denial of each claim asserted against it
8(c): Any affirmative defenses
Every _____, _____ _____, and _____ _____ must be _____ ___ at least one ___________ in the attorney's name. Every paper must state the _____ _____, _____ ______, and _____ ______.
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name. The paper must state the signer’s address, e-mail address, and telephone number.
How may a party waive a defense?
Omitting it from a motion in the circumstances described in Rule 12(g)(2); or
Failing to: make it by motion under Rule 12; or include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
When does a pleading relate back to the original date of the pleading?
The law that provides the applicable statute of limitations allows relation back;
The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading
What is The Front Bottom's best album
Literally every single one of them. kys if u disagree
State the two-step test to determine if a plaintiff has enough facts in their complaint to show that they can plausibly recover on their claim
1). Must first work out what "facts" you can "count."
– The first lesson is that general conclusions or bare assertions just don't count,
– ONLY allegations that are specific, concrete "facts."
2). Once you have decided what "facts" count, the second step is to ask if you have enough non-conclusory facts to make the claim "plausible"
–That is, there is a "reasonable" inference that the plaintiff will recover.
An attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
What happens if matters outside of the pleadings (anything other than the complaint, answer, etc.) are attached to a Rule 12(b)(6) motion or a 12(c) motion?
The motion becomes a motion for summary judgment under Rule 56
When does a party have to get permission from the other side or the court to amend their responsive pleading and a pleading to which a responsive pleading is required?
It is 21 days after serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
How can a defendant appear but still be in default
The defendant files a motion to dismiss, it gets denied, and never answer.
The defendant files a motion for extension of time but never go forward with anything else
The defendant files a motion that gets denied and never taking any other steps
When pleading special matters, what matters must be pled with particularity, specifically stated, and specifically denied?
Pled with particularity: Fraud or mistake, and denying that a condition precedent has occurred
Specifically stated: special damages
Specifically denied: a party’s capacity to sue or be sued; a party’s authority to sue or be sued in a representative capacity; or the legal existence of an organized association of persons that is made a party
Hypo: Attorney Ben Dover says in a hearing that Plaintiff Mike Hock was a regular heroin user and thus not trustworthy without any factual support. Can Mike Hock file a Motion for sanctions?
No. Ben Dover must later advocate something in a signed writing. It is not enough that he advocated it at all. See Rule 11(b)
When can a saved defense be raised?
Per Rule 11(h)(2):
in any pleading allowed or ordered under Rule 7(a);
by a motion under Rule 12(c); or
at trial.
State each Foman factor
Undue prejudice to the other side if the amendment is allowed (e.g.. it is too close to trial).
2. Undue delay on the part of the movant.
3. Bad faith on the part of the movant (including a dilatory motive.)
4. Futility of the proposed amendment (I.e.. the amendment is pointless, because it must fail on the merits, because the court lacks authority to decide it, or because it is barred)
When can a plaintiff seek default judgment from the clerk
(1) P’s claim is for a sum certain or sum that can be made certain by computation; (2) the default is for non-appearance; and (3) D is not a child or incompetent.
What does it mean to "state with particularity the circumstances constituting fraud or mistake"
Answer who, what, where, and when. Include dates and times the fraud occurred, who made the fraudulent statements, where the fraud took place, who heard or read the fraudulent statements, and specific communications such as quotes from emails.
What is the likely result of Attorney Ben Dover not amending his complaint to remove the unfounded claim that Defendant Mike Hock regularly robs orphans
Nothing. Rule 11 does not require you to amend something in a pleading as soon as you find out it is not correct. Rule 11 only imposes a duty not to later advocate something stated in a document once you know it's not true.
Which defenses are waived, saved, and never waived?
Per Rule 12(h):
Waived: Lack of personal jurisdiction, improper venue, insufficient service, and insufficient service of process.
Saved: Failure to state a claim upon which relief can be granted, and failure to join a party under Rule 19
Never waived: Lack of subject matter jurisdiction
When must be true for a plaintiff to be able to change a party named in her complaint?
1. the amendment arise out of the same conduct, transaction or occurrence as the original complaint
2. new Defendant knew of lawsuit
3. new Defendant knew/should know that but for error about ID they would have been named
What is a "sum certain" typically and what is it never
Sums certain is typically liquidated damages (borrowed money and didn’t pay back, defaulted on loan, breached contract for a certain amount, interest rate, etc.)
Sum certain is never includes tortuous or punitive damages
What affirmative defenses does 8(c) cover?
Accord and satisfaction; Arbitration and award; Assumption of risk; Contributory negligence; 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.
When can a represented plaintiff be sanctioned herself (rather than her attorney)?
Sanctions may be imposed on a party who violates Rule 11, the only limit is that represented parties cannot be sanctioned for lack of legal support.
What is the effect of a motion on the timing on the time periods for when the defendant must respond and the plaintiff must make a statement of a claim more definite?
if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
When is a required response to an amended pleading "due"?
The response must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
When and how does a defendant set aside a default judgment
If a default entry AND judgment have been entered, the defendant may file a rule 60 motion asking the court to set aside the judgment. If default judgment is undone under rule 60, D can file an answer and the case will proceed from where it left off.