Pleadings
Rule 8 (a)
Complaint
1) a short and plain statement of the grounds of the court's jurisdiction
2) a short and plain statement showing that the pleader is entitled to relief
3) demand for the relief, including relief in the alternative or different types of relief
15(A)
1) the 'freebie' - a party may amend its pleading once w/in 21 days of serving OR w/in 21 days from answer or date 12(b)(6) motion was filed
2) other amendments
party may amend w the consent of the opposing party or with the consent of the court as 'justice so requires '
justice so requires: Top considerations: timing and possibility of prejudice
any required response to an amended pleading 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
What is required before the rule 26 conference
Required Disclosures
1) initial disclosure
a party must provide: name/address/phone # of each individual likely to have discoverable information -along w subjects of that info
-copy of all documents/tanglible things disclosing party may use to support its claims or defenses
-a computation of each category of damages claimed by the disclosing party
-any insurance agreement
who can get sanctioned
party, attorney, anyone involved
8(b)
defenses admissions and denials (aka ANSWER)
1) party must
-state in short and plain terms its defenses to each claim asserted against it
-answer must address each count alleged (ie. 4 paragraphs in the complaint, 4 paragraphs in the answer'
answer must admit, deny, or 'defendant lacks information or belief(which will be treated as a denial')
-anything not denied is admitted
15(C)
Relation back of amendments
An amendment to a pleading relates back to the original date of the pleading when:
1)(a): the specific stature of limitations of a cause of action allows relation back
1(b): the amendment asserts a claim or defense that arose out of the same transaction as the og complaint
1(c): the amendment
changes the party or the naming of the party against whom a claim is asserted:
-Same transaction or occurrence
-D was aware of the original lawsuit against other D w/in 90 day serving period
-the new D were they only not included by mistake? (lack of knowledge not a mistake)
Parties may obtain discovery regarding any nonprivileged matter that is :
also what rule is this under
1. relevant to any party's claim or defense and -proportional to the needs of the case."
Relevance = tendency to make a fact of consequence more or less likely to be true
2. proportionality (or effort to obtain the evidence)
3. cannot seek privileged information
Work product is privileged info if
1)it was created in anticipation of litigation
P must show necessity - why they can't proceed w/out this info - it would be injustice w/out it
Rule 11- what does it apply to
Applies to pleadings, motions, and other papers filed w/the court
Does not apply to discovery
Does not apply to conduct
Does not apply to unfiled papers/oral arguments, EXCEPT in cases of later advocacy
8(c)
affirmative defenses
a party must affirmatively state any avoidance or affirmative defense, including; fraud, illegality, statute of limitations etc.
If you do not bring up an affirmative defense in your answer, it is waived
Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated
Later advocacy
failure to correct an error you made with the court and/or oral repetition of error with no effort to correct
Rule 30
Discovery Device - Depositions
Testimony taken before trial or pending appeal, under oath, subject to cross-examination and recorded by audio or stenographic means
No limit to questions, but limit # of depositions (10 depositions)
Can refuse to answer based on privilege but all other questions must be answers (even with objections)
Rule 11(a) (b)(1-4)
(a) signature
(b) representations to the court
Filings need to be submitted truthfully at the time they were filed
When filing with the court, the attorney is certifying to:
Rule 11(b) - "reasonable investigation" before filing pleading
Rule 11(b)(1) - you are not filing this pleading motion or paper for an improper purpose
Can't file something merely to harass, cause unnecessary delay, or needlessly increase the cost of litigation (filing must be "borderline frivolous")
Rule 11(b)(2) - you are certifying by your signature that your references to the law in that paper are correct
Does not mean you can only make arguments that are supported by existing law
Rule 11(b)(3) - you are representing either 1) that you h evidentiary support for the allegation(s), or 2) that you will have evidentiary support in due course (through discovery)
Rule 11(b)(4) - if you're going to deny, you're stating you have evidence that the allegation is untrue
what are the two standards of factual sufficiency - and describe where they stem from
1) Dioguardi and Swanson - open courthouse doors
-notice pleading
-liberalized standard
-in Dioguardi he filed a complaint that an auctioneer wronged him and the courts initially dismissed bc it 'failed to state facts sufficient to constitute a cause of action' BUT 'under new rules of civ pro, you don't need extensive legal knowledge, as long as you can prove you are entitled to relief, the rest can be found during discovery
-in Swanson she filed a complaint against Citibank and the court initially dismissed it for not enough evidence for her claim but then decided she should have her day in court and be given the right to discovery
2) Twombly and Iqbal-closed courthouse doors
-plausibility
-conservative standard
Twombly alleged that the phone providers in his area are in a conspiracy together
Iqbal alleged that two US officials were deliberately engaging in creating discriminating laws
The court dismissed their claims because they lacked plausibility
Mood check - how are you
give a hug to the person to your left
RULE 33 (a) and (b)
Discovery Device-Interrogatories
a) in general
Written Qs propounded by one party to another party who must under oath and in writing.
Questions may relate to anything w/in the limit of Rule 26(b).
Limit of 25 per party
includes "discrete" sub-parts - (ex. name, address, telephone = 3)
Must be relevant and proportional
Need court to compel non-party individuals to respond
Responses to interrogatories can be either answers or objections
b) answers and objections
the responding party must serve its answers and any objections within 30 days after being served with the interrogatories
rule 11(c)
(c) sanctions
Judges have discretion in imposing sanctions for violating Rule 11
Usual factors in consideration:
Willful misconduct or carelessness?
Isolated incident or pattern of conduct?
Extent that the misconduct interfered with the case
Sanctions range from monetary penalties and fines paid to the court to formal warnings, circulating the opinion, or referral to the state bar
Who can be sanctioned?
Lawyer, law firm, and/or party to the case
Judge OR attorney can initiate sanctions
If attorney initiates:
Prepare Rule 11 motion
Rather than filing it, serve it on the party to be sanctioned
Party to be sanctioned has 21 days to correct the problem (Safe Harbor)
If issue is not corrected, you file the motion after 21 days have passed since the date of service
RULE 12 and be specific
Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
How to present defenses
-Legal reason that the P has no right to recovery, even if all the allegations in the complaint are true
-statute of limitations is a common one
-party may assert defenses by motion:
1) lack of subject matter jurisdiction
2) lack of personal jurisdiction
3) improper venue
4) insufficient process
5) insufficient service of process
6)failure to state a claim upon which relief can be granted
12(B)(6)
Motion to dismiss for failure to state a claim upon which relief can be granted
- if all the facts are assumed to be true, is the claim legally and factually sufficient
everyone go in a circle and say one nice thing about yourself
Objections (Rule 33(b)(4))
-Overbroad
Usually applies to things like time, scope
Should answer whatever part of the Q is proper, object to the rest
-Vague and Ambiguous
Not often upheld
Assumes common sense and regular, reasonable definitions
-Overly Burdensome
Too disproportional to get
- Attorney-client privilege
- Work product
-Relevance
-Compound
Failure 37
Failure to Make Disclosures or to Cooperate in Discovery; Sanctions