Pleadings
What are the pleading requirements?
R.8(a)
1. SPS grounds for SMJ
2. SPS claim showing the pleader is entitled to relief (Plausible)
3. Demand for relief
What are the three ways to respond to a complaint?
1. default
2. motion to dismiss
3. answer
What is the standard for R.11 certifications?
reasonable inquiry-- (1) no improper purpose; (2) evidentiary support; (3) claims are supported by existing law or nonfrivolous arguments for extending/modifying/reserving existing law or for establishing new law
What are the two types of amendments?
1. as a matter of course-- 21 days
2. leave of court
What is a PI?
A temporary injunction issued early in the case to prevent an irreparable injury from occurring before the court has a chance to decide the case.
What is the purpose of pleadings?
1. giving notice of the nature of the claim or defense.
2. stating facts.
3. narrowing issues for litigation.
4. helping the court throw our bogus claims and defenses without the burden of trial.
What is the difference between entry of default and default judgment?
Entry of default-- written indication that the defendant is in default. Motion to vacate entry of default. R.55(C) set aside for good cause.
default judgment-- official notation that defendant has failed to respond. Motion for relief from judgment. R.60 factors (willful, prejudice, meritorious defenses?)
What happens after a party serves a R.11 motion on the offender?
The offender has a 21-day safe harbor to reconsider and withdraw or correct the offending paper.
When can you amend a claim after the statute of limitations?
R.15(c) the claim relate back to the date of the original pleading
1. same t/o
2. whether the defendant was put on notice of the claim.
What are the requirements for PI?
1. strong likelihood of success on the merits
2. movant suffers irreparable harm in the absence of preliminary relief
3. balance of harms between the plaintiff and defendant
4. the injunction is in the public interest
What must be plead with particularity?
1. fraud
2. condition precedent
3. mistake
4. special damages
What are the general guidelines for analyzing a 12(b)(6) motion?
1. four corners of the complaint-- all the elements?
2. accept as true all factual allegations (non-conclusory statements)
3. all reasonable inferences are drawn in favor of the non-moving party.
4. In the event a complaint fails to state a claim, unless amendment would be futile, the district court must give the plaintiff the opportunity to amend her complaint.
How do you recognize nonfrivolous arguments for extending, modifying, or reversing existing law or for establishing new law? (Hunter v. Earthgrains)
1. Cite to the adverse decision
2. distinguish the facts
3. draw on reasonable investigation about why your argument should win (dissents, law journals, public policy, etc.)
Before trial, when will a court grant a leave of court to amend?
Leave to amend shall be freely given when justice so requires.
factors:
1. reason for the amendment
2. the amending party's diligence
3. any prejudice that the amendment may cause the opposing party.
4. whether the amendment would be futile as a matter of law.
5. amending party's prior amendments
What's the difference between a PI and a TRO?
TRO's are more urgent and only last 14 days.
How do you plead with particularity?
state the who, what, when, where, and how
How do you answer a complaint?
1. R.8(b) admit, deny, lacking knowledge or information
2. R.8(c) affirmative defenses
3. Assert counterclaims
What is the purpose of R.11?
Deter not to punish
When can a party amend a pleading during trial?
1. aid in the merits
2. no undue prejudice
Is actual notice required for TRO?
If you can't make actual notice, you need to file an affidavit of no notice (explaining how you made an effort to inform).
What is the Iqbal test?
1. ID the elements of the claim
2. Cut conclusory statements (must be supported by factual allegations)
3. State a plausible claim for relief
What is a R.12(f) motion and a 12(e) motion?
1. 12(f)-- a district court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
2. 12(e)-- allows a party to move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that a party cannot reasonably prepare a response.
To determine if a party has violated R.11, what does the court consider (Hays v. Sony)?
1. the complexity of the factual and legal issues in question
2. the extent to which pertinent facts were under the control of opponent's parties
3. the extent to which the lawyer relied on the client for the facts.
4. whether the case was accepted from another lawyer and the extent to which the receiving lawyer relied on the referring lawyer.
5. the resources reasonably available to the lawyer to conduct the inquiry.
6. the extent to which the lawyer was on notice that further inquiry might be appropriate.
After the statute of limitations, when can a party amend a party?
R.15(c)(3)
Costa Crociere
1. Receives such notice that it would not be prejudiced in defending on the merits
2. Is or should be aware that the action would have been brought against it but for a mistake concerning the property's identity, and
3. Received the notice within the limitation period of 90 days after filing the original complaint.
What are the requirements for TRO?
1. strong likelihood of success on the merits
2. movant suffers irreparable harm absent a TRO
3. balance of harms
4. the TRO is in the public interest
5. notice
6. security bond