Misc.
In a federal civil case, what is the procedural effect of a party’s failure to deny an allegation in an opposing party’s pleading?
If a responsive pleading is required, and the responding party does not deny an opposing party’s allegation, then that allegation is deemed to be admitted. However, this rule does not apply to any allegation regarding the amount of damages.
Access Now, Inc. v. Southwest Airlines Co. claimed relief pursuant to Title III of the ADA, what was special about this?
Plaintiffs are admitting this case will be a first impression because nothing in Title III says that it applies to cyberspace.
Federal Rule 12 (h) states a party waives any defense listed in what Rule? When he or she omits it from a motion in the circumstances described in Rule 12(g); or fails to either: make it by motion under this rule; or include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course
Rule 12(b)(2)-(5)
Federal Rule 12(h)(1): When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:
Under the Federal Rules of Civil Procedure, which of the following pleadings would potentially allow a defendant to dispose of a case before trial, based on a new defense, after the time for pleadings and amendments has passed?
D A motion for judgment on the pleadings, based on insufficient service of process, requesting dismissal of the case as sanctions against the plaintiff.
Answer option A is correct. Pursuant to the Federal Rules of Civil Procedure (FRCP), failure to state a claim upon which relief may be granted can be raised as a defense after the period for pleadings and amendments has passed by making a motion for "judgment on the pleadings" at any time prior to trial. See FRCP 12(b)(6), 12(g)(2), and 12(h)(2)(B)-(C). Here, the question specifies that the pleadings period has closed, but trial has not begun. Therefore, the defendant may raise the defense of failure to state a claim by moving for "judgment on the pleadings" pursuant to Rule 12(c). This motion would, if successful, dispose of the case.
A plaintiff brought a diversity action against a defendant in federal court. The plaintiff sought to recover for personal injuries sustained when the defendant’s car struck the plaintiff’s car in an intersection. The plaintiff’s complaint identified the time and place of the accident and made two claims about the accident’s cause. First, the plaintiff claimed that the accident occurred because the defendant negligently changed lanes while driving through the intersection. Second, as an alternative version of events, the plaintiff claimed that the accident occurred because the defendant recklessly drove through a red light and into the intersection. The defendant filed a Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief could be granted, arguing that the plaintiff could not properly plead two different claims regarding the cause of the accident.
How is the court likely to rule on the defendant’s motion?
A Grant the motion, because the plaintiff’s complaint alleges two inconsistent causes for the accident.
B Grant the motion, because the complaint includes legal conclusions.
C Deny the motion, because a plaintiff may properly allege alternative or inconsistent claims.
D Deny the motion but require the plaintiff to strike one of the inconsistent claims.
C Deny the motion, because a plaintiff may properly allege alternative or inconsistent claims.
Rule 8 governs many aspects of the form and content of pleadings. Among other provisions, Rule 8(d)(2) allows a party to make alternative or hypothetical statements of a claim or defense. In addition, Rule 8(d)(3) allows a party to plead as many claims or defenses as it has, regardless of whether those claims or defenses are consistent with one another. This flexibility in pleading recognizes that a party’s plausible claims or defenses might not be fully developed at the pleading stage. To further illustrate this flexibility, Rule 11(b)(3) allows a party to plead factual contentions that are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. In other words, the civil rules do not require a party to bind itself to a singular version of events at the pleading stage.
Here, the plaintiff pleaded two potential causes of the accident: either the defendant negligently changed lanes or recklessly ran a red light. These allegations offer two different causes and two different mental states to describe the same accident. But Rule 8 permits such alternative or inconsistent allegations. Thus, of the answer options given, answer option C is the best choice.
A plaintiff sued a defendant in federal district court for breach of contract. The plaintiff’s complaint alleged that the defendant breached the parties’ contract because he delivered the goods late, after the agreed-upon time. The complaint recited the delivery time required by the contract and claimed an actual delivery time that was several hours later. The defendant’s answer denied all allegations in the plaintiff’s complaint and asserted a counterclaim for breach of contract. The defendant asserted in its counterclaim that the plaintiff breached the contract after the plaintiff refused to pay the defendant for the goods the defendant delivered. The defendant attached to its answer a copy of a receipt signed by the plaintiff, which indicated that the goods in question were delivered within the time frame specified in the parties’ contract. The plaintiff replied to the defendant’s counterclaim, asserting that the defendant had forged the time stamp on the receipt and that, in light of the defendant’s untimely delivery, the plaintiff was not obligated to pay for the goods. The plaintiff attached to its reply another copy of the signed receipt with a different time stamp than the receipt the defendant had attached to its answer and counterclaim. The defendant then moved to dismiss the plaintiff’s complaint for failure to state a claim.
Which of the following rationales best supports the district court’s decision to deny the defendant’s motion to dismiss for failure to state a claim?
D It is probable that the defendant breached the contract.
To survive a motion to dismiss, a party’s factual allegations in its complaint, if accepted as true, must state a claim that is plausible on its face.(The Plausibility Standard) Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A court is not required to accept as true conclusory legal allegations that simply label the elements of a claim without underlying factual support. Id. The allegations regarding when the defendant delivered the goods in question are factual in nature. If accepted as true, the plaintiff’s factual allegations show that the defendant delivered the goods after the time agreed upon in the contract. The plaintiff is not merely alleging that the defendant breached the contract (a legal conclusion), but is also alleging that the time when the defendant delivered the goods (a factual allegation) was later than that agreed to by the parties. Accepting the plaintiff’s version of events as true regarding when the defendant delivered, it is plausible that the defendant breached the contract.
What is the rule extracted from Bell Atlantic Corp. v. Twombly?
Creates the Plausibility Standard: a pleading needs more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. It needs only enough facts to state a claim to relief that is plausible on its face.
List three examples of affirmative defenses mentioned in Rule 8(c).
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.
A retired scientist learned that several of his former co-workers had contracted illnesses due to their exposure to radioactive materials while working in a laboratory. The scientist saw a physician, who, after a comprehensive exam, pronounced that the scientist was healthy. However, the physician warned the scientist that he could yet develop an illness related to his exposure to radioactive material. The scientist filed a diversity action in federal court against his previous employer, seeking to recover for his "potential contraction of an illness." The courts of the state providing the applicable law have not recognized the scientist's theory as a viable cause of action. The defendant moved to dismiss the scientist's complaint for failure to state a claim upon which relief can be granted. The scientist filed his opposition to the defendant's motion one day late.
How is the court likely to rule on the defendant's motion?
Answer option C is correct. Under the Federal Rules of Civil Procedure (FRCP), a complaint fails to state a claim if it fails to allege facts that constitute a cause of action under applicable law. See FRCP 8(a), 12(b). Here, the facts provide that applicable law does not recognize the scientist's claim as a viable cause of action. Accordingly, the court will dismiss the scientist’s complaint for failure to state a claim upon which relief can be granted.
A defendant served numerous document requests on a plaintiff during litigation in federal district court. While permitted by the Federal Rules of Civil Procedure, the requests sought a substantial amount of material that would take hundreds of hours to compile. The defendant’s team of lawyers had deliberately crafted the requests to burden the plaintiff’s lawyer, who worked as a solo practitioner. The requests were a part of the defense’s overall strategy to make the litigation as burdensome as possible for the plaintiff and attempt to overwhelm the plaintiff’s lawyer. The plaintiff served a motion for Rule 11 sanctions on the defendant and asked the defendant to withdraw the requests. When the defendant refused to do so, the plaintiff filed its motion for sanctions with the district court.
Is the district court likely to sanction the defendant under Rule 11?
A Yes, because the discovery requests were lodged for an improper purpose.
B Yes, because responding to the discovery requests would unduly delay the proceedings.
C No, because the requests are permissible under the Federal Rules of Civil Procedure.
D No, because discovery requests are not governed by Rule 11.
D No, because discovery requests are not governed by Rule 11.
Answer option D is correct. Rule 11 does not apply to disclosure and discovery requests, responses, objections, and motions under Rules 26 through 37. Fed. R. Civ. P. 11(d). Because the challenged conduct here is related to discovery requests, Rule 11 does not apply, and the district court will not sanction the defendant or its lawyers under Rule 11. The Federal Rules of Civil Procedure have separate rules enabling a party to seek sanctions for its opponent’s conduct during discovery. See, e.g., Fed. R. Civ. P. 37. Answer options A, B, and C are necessarily incorrect for this same reason.
A plaintiff sued a defendant in federal district court after the plaintiff was injured in an automobile accident. The plaintiff alleged in her complaint that the defendant acted negligently while driving. The plaintiff also alleged that at the time of the accident, the defendant’s car was traveling 45 miles per hour in an area with a speed limit of 20 miles per hour. The defendant moved to dismiss the plaintiff’s complaint for failure to state a claim.
Which of the plaintiff’s allegations, if any, must the court accept as true in deciding the defendant’s motion to dismiss?
A The court is not required to accept any of the plaintiff’s allegations as true.
C The court must accept as true the plaintiff’s allegations regarding whether the defendant acted negligently while driving.
Answer option B is correct. In deciding a motion to dismiss for failure to state a claim, a court must accept a party’s factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A court is not required to accept as true conclusory legal allegations that simply label the elements of a claim. Id. Here, the plaintiff’s allegation that the defendant acted negligently while driving is a legal conclusion that simply labels one of the elements of the plaintiff’s claim. It may be helpful practice for a party to include such labels in a complaint, to enable the court and the party’s opponent to follow the party’s reasoning. However, the court is not required to accept these legal conclusions as true in determining whether the plaintiff has adequately stated a claim. In contrast, the plaintiff’s allegations regarding the speed at which the defendant was driving and the speed limit in the area of the accident are factual in nature. For purposes of the defendant’s motion to dismiss, a court must accept these factual allegations as true and decide whether, in light of them, the defendant has stated a plausible legal claim for relief.
What is the fact pattern of Zielinski v. Philadelphia Piers, Inc.?
Plaintiff recorded video from his therapy sessions in 1970 which he let the school library use as rentals. Plaintiff created a book using some of the dialogue and then wanted the video. He requested the tapes back from the library and when they denied, he sued but applied copyright law incorrectly.
True or False: When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings.
True:
Federal Rule 15(b)(2) states:
For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move--at any time, even after judgment--to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
A plaintiff brought a diversity action against a defendant in federal court. The plaintiff served the defendant with a copy of the summons and complaint by leaving a copy of the pleadings at the defendant's home with the defendant's housemaid, just as she was leaving to go home at the end of her shift. The complaint asserted negligence as the grounds for relief, and stated some facts as a basis for the claim, but the defendant had no recollection of being involved in any of the stated facts and was confused by the pleadings. The defendant filed a pretrial motion to dismiss for failure to state a claim or, alternatively, for a more definite statement. The court denied the motion. Thereafter, the defendant immediately, without filing an answer, moved to dismiss for insufficient service of process.
Is the defendant's motion to dismiss likely to succeed?
D No, because the defendant waived the opportunity to raise an insufficient service of process defense.
D No, because the defendant waived the opportunity to raise an insufficient service of process defense.
Rule 12 of the Federal Rules of Civil Procedure (FRCP) provides that if a pre-answer motion asserting any waivable defense is filed, all waivable defenses must be raised in the same motion. After filing a pre-answer motion, a defendant is not permitted to make another pre-answer motion asserting any waivable defenses. See FRCP 12(g)(2); 12(h)(1). Here, the defendant filed a pre-answer motion which was denied by the court. The defendant's failure to raise the defense of insufficient service of process in the previously filed pre-answer motion effectively waived the defendant's right to raise that defense.
A plaintiff filed and served a complaint in federal district court. The plaintiff soon noticed several errors in the complaint. The plaintiff filed an amended complaint 10 days after its original complaint, which attempted to correct the errors. Unfortunately, the plaintiff subsequently noticed additional errors in the amended complaint. Ten days after it had served the amended complaint, the plaintiff filed and served a second amended complaint. The defendant had not yet filed an answer or other response to any of the plaintiff’s complaints at that point.
Is the plaintiff’s second amended complaint properly filed?
Answer option D is correct. Rule 15 permits a party to amend a pleading once as of right within 21 days of when the pleading was served or, if the pleading is one to which a response is required, within the earlier of either 21 days after the responsive pleading is served or a motion under Rule 12(b), (e), or (f) is served. Fed. R. Civ. P. 15(a)(1). However, Rule 15 only permits one amendment as of right. Any subsequent amendments may be made only with an opponent’s written consent or leave of the court. Fed. R. Civ. P. 15(a)(2). Here, the plaintiff has already amended its complaint once as of right. Any additional amendments to the complaint must be made either with written consent from the defendant or with the court’s leave. Because the plaintiff filed a second amended complaint without the defendant’s consent or the court’s leave, the second amended complaint is not properly filed.
The plaintiff sued the defendant in federal court, alleging that the defendant violated a federal anti-discrimination statute by firing the plaintiff because of the plaintiff’s religion. One year after filing suit, and before trial, the plaintiff sought to amend the complaint to add a claim for intentional infliction of emotional distress. This claim was also based on the plaintiff’s firing. The statute of limitations for this claim expired six months after the plaintiff filed the complaint.
Does the statute of limitations bar the proposed amendment?
No. The statute of limitations does not bar the amendment, because the amendment will relate back to the date on which the original complaint was filed. An amendment to a pleading relates back to the date of the original pleading if the amendment adds a claim that arises from the same conduct, transaction, or occurrence as the original pleading.
Here, the plaintiff’s claim for emotional distress is based on the same conduct that underlies the original complaint, namely, the defendant’s firing of the plaintiff. The plaintiff’s amendment will therefore relate back to the date on which the plaintiff filed the original complaint. On that date, the statute of limitations for intentional infliction of emotional distress had not yet expired. Thus, the statute of limitations will not bar the plaintiff’s amendment.
What is the Rule derived from McCormick v. Kopmann?
Under Rule 8(d)(2) alternative fact allegations made in good faith and based on genuine doubt are not admissions against interest so as to be admissible in evidence against the pleader.
Can a statement in a pleading be adopted by reference elsewhere in the same pleading or in any other pleading or motion?
Yes. Federal Rule 10 (C) states,
Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.
A plaintiff filed and served a complaint for copyright infringement One week later, the defendant filed a Rule 12 motion to dismiss for failure to state a claim. The court set a hearing on the defendant’s motion to dismiss for one month later.
In this situation, how should defendant calculate its deadline to file an answer to the complaint?
Answer option C is correct. If a defendant chooses to present defenses via a Rule 12 motion instead of filing an answer, then the defendant’s time to answer the complaint is postponed until 14 days after the court disposes of the motion. Fed. R. Civ. P. 12(a)(4)(A). Here, the defendant initially responded to the complaint by filing a Rule 12 motion to dismiss instead of an answer. Thus, the defendant’s deadline to file an answer will be 14 days after the court rules on the Rule 12 motion (if an answer is still required at that point).
A plaintiff sued a defendant in federal district court. Ten days after being served with the complaint, the defendant filed a motion under Rule 12(f) to strike portions of the complaint. One month later, the district court denied the motion. The defendant filed an answer to the complaint five days after the district court’s order denying the motion to strike. Fourteen days after being served with the defendant’s answer, the plaintiff wanted to amend her complaint to add new claims.
May the plaintiff amend her complaint without the defendant’s consent or leave from the court?
A Yes, because each party may amend its pleading once as of right at any time.
B Yes, because less than 21 days have passed since the plaintiff was served with the defendant’s answer.
C No, because more than 10 days have passed since the plaintiff was served with the defendant’s answer.
D No, because more than 21 days have passed since the plaintiff was served with the defendant’s motion to strike.
D No, because more than 21 days have passed since the plaintiff was served with the defendant’s motion to strike.
Answer option D is correct. A party may amend its pleading once as of right (without leave from the court or its opponent) within 21 days of serving the pleading or, if the pleading is one to which a responsive pleading is required, the earlier of either (1) 21 days after service of the response, or (2) 21 days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). To determine whether a pleading is one to which a response is required under Rule 15(a), one looks to the text of Rule 7(a); if Rule 7(a) lists a response to the pleading as permitted, then the pleading is one to which a response is required under Rule 15(a). Advisory Committee Notes, 2009 Amendments to Fed. R. Civ. P. 15. Because Rule 7(a) permits answers to complaints, a complaint is therefore a pleading to which a responsive pleading is required. Fed. R. Civ. P. 7(a)(2).
In a responsive pleading, how should a party respond if the party does not know whether an allegation is true or false?
Federal Rule 8(b)(5): A party that does not have enough knowledge or information to determine the truth of an allegation must say so. This has the same effect as a denial.
A similar issue can arise if a party believes that an allegation is false but lacks sufficient knowledge to deny the allegation definitively. In this situation, courts often allow the defendant to deny the allegation so long as the defendant has enough information to form a good-faith belief that the allegation is false.
In Tellabs, Inc. Makor Issues & Rights, Ltd. how did the court rule that Motion's to Dismiss pursuant to 12(B)(6) should be looked at?
The United States, or a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within how many days after service on the United States attorney?
60 days.
Federal Rule: 12(a)(2) states:
United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
A plaintiff filed a diversity action in federal court, alleging a breach-of-contract claim. The plaintiff’s complaint asserted that the defendant had breached the contract by delivering goods five days after the agreed-upon date. However, the complaint only mentioned the delivery-date term and did not mention that the contract also expressly provided a 10-day grace period for all deliveries. In response, the defendant attached the full contract document as an exhibit to his answer. The full contract document included the grace-period term and was signed by both parties. After the close of pleadings, the defendant filed a Rule 12(c) motion for judgment on the pleadings, seeking dismissal of the breach-of-contract claim.
May the court consider the contract exhibit in ruling upon the defendant’s motion for judgment on the pleadings?
C No, because the contract exhibit was not attached to the complaint.
Answer option A is correct. In deciding a motion for judgment on the pleadings, a court may consider any material inside the pleadings. Fed. R. Civ. P. 12(c). This includes any written instrument attached to the pleadings as an exhibit, materials incorporated by reference in the pleadings, and materials that, although not incorporated by reference, are integral to the pleadings. See Fed. R. Civ. P. 10(c) (a pleading is deemed to include any written instrument attached to it); Sira v. Morton, 380 F.3d 57, 66-67 (2d Cir. 2004). If a court must consider material outside the pleadings to decide a motion, then the court must convert the motion to one for summary judgment. Sira, 380 F.3d at 66-67. Here, the contract exhibit is part of the pleadings because the defendant attached the contract to his answer. Thus, the contract exhibit may be considered in deciding a Rule 12(c) motion for judgment on the pleadings (without having to convert the motion to a summary-judgment motion). Further, even if the defendant had not attached the contract as an exhibit to the answer, the contract is arguably integral to the plaintiff’s breach-of-contract claim and could still be considered in deciding a Rule 12(c) motion for that reason too. See Bader v. Wells Fargo Home Mortg. Inc. 773 F. Supp. 2d 397, 406-07 (S.D.N.Y. 2011).
A plaintiff sued a defendant in federal district court for false advertising under state law. Two months after filing suit, the plaintiff realized the complaint had inadvertently omitted a claim for breach of contract. After further investigation, the plaintiff’s lawyer realized that he had mistakenly filed a draft version of the complaint instead of the final version of the complaint. The breach-of-contract claim was based upon a different set of facts than the false-advertising claim. The complaint had omitted both the claim and the underlying factual allegations that supported it. The limitations period for the breach-of-contract claim expired three weeks after the plaintiff filed the complaint. The plaintiff asked his lawyer whether an amended complaint that included the breach-of-contract claim would still qualify as timely filed.
Which of the following must be true in order for the amended complaint to relate back to the filing date of the original complaint?
A The limitations period for the breach-of-contract claim must allow relation back of amendments.
B The amended complaint must be filed within 120 days of when the plaintiff realized the mistake.
C The defendant must know or reasonably should know that, but for the plaintiff’s mistake, the original complaint would have included a breach-of-contract claim.
D The defendant must not be prejudiced by having to defend against the breach-of-contract claim.
A The limitations period for the breach-of-contract claim must allow relation back of amendments.
Answer option A is correct. An amended pleading that adds new claims against a litigant who is already a party to the action will relate back to the date of the original pleading if: (1) the applicable limitations periods for the added claims permit relation back, or (2) the added claims arise out of the same conduct, transaction, or occurrence that was set out (or attempted to be set out) in the original pleading. Fed. R. Civ. P. 15(c)(1)(A), (B).
Here, the breach-of-contract claim does not arise out of the same conduct, transaction, or occurrence set out (or attempted to be set out) in the original complaint. The breach-of-contract claim arises out of different facts than the false-advertising claim that was included in the original complaint. The original complaint omitted not only the claim but all of the factual allegations upon which it was based. Therefore, in order for an amended complaint that adds the breach-of-contract claim to relate back to the filing of the original complaint, the applicable limitations period for the breach-of-contract claim must allow relation back of amendments.