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Pleadings by Mind Map: Pleadings

1. Rule 11

1.1. Establishes the standard parties must meet when filing pleadings motions or other papers

1.1.1. Signature by attorney of record or party if representing self.

1.1.2. Certification to the court

1.1.2.1. Signing party certifies that to the best of his knowledge, information and belief, formed after an inquiry reasonable under the circumstances.:

1.1.2.1.1. Not for improper purpose (harass, delay or increase costs)

1.1.2.1.2. The claims are warranted by existing law or by non frivolous argument

1.1.2.1.3. Factual contentions have evidentiary support, or will have support after reasonable opportunity for discovery

1.1.2.1.4. Denials of contentions are warranted on the evidence or if identified are based on belief or lack of information.

1.1.3. Sanctions

1.1.3.1. Generally, after notice and reasonable opportunity to respond, court may use discretion to impose sanctions upon attorneys, law firms, and parties for violations of Fule 11

2. Notice Pleading

2.1. Federal rules provide for notice pleading.

2.1.1. Does not detail legal theory of case, only give fair notice of pleader's contentions

2.2. Recent Changes heightened the pleading requirement. All allegations must state a plausible case for recovery

2.2.1. Bell Atlantic Corp. v. Twombly

2.2.1.1. Complaint needs to provide facts that allegations are plausible

2.2.2. Ashcroft v. Iqbal

2.2.2.1. Complaint needs to state a claim for relief that is plausible on it's face.

3. Commencement of Proceedings

3.1. Manner

3.1.1. Under Rule 3 a civil action is commenced by filing a complaint with the court clerk.

3.2. Time Computation

3.2.1. General Rule

3.2.1.1. Rule 6

3.2.1.2. Whenever a time period is stated in days, the period excludes the day of the event that triggers the period, and includes every day following, and includes the last day (unless last day is a weekend, holiday then moves to subsequent non-weekend or holiday day)

3.2.1.2.1. Includes Saturdays, Sundays and legal holidays

3.2.2. Motions Hearings, Affidavits

3.2.2.1. Written motion and notice of hearing must be served 14 days prior

3.2.2.1.1. Unless

3.2.2.2. Opposing affidavit must be served at lease 7 days before the hearing, unless otherwise ordered

3.3. Additional Time for responses to electronic and non paper filings

3.3.1. 3 days are added to the prescribed period if the service or filing is made electronically or in a nontraditional manner.

4. Complaint

4.1. Elements

4.1.1. In General, is the pleading in an action filed by the plaintiff and serves as notice to the opposing party

4.1.1.1. Must include a short and plain statement of the grounds that establish SMJ

4.1.1.2. Must include a short and plaint statement of the claim establishing entitlement to relief

4.1.1.3. Must include a demand for judgement for the relief sough by the pleader

4.2. Motions against

4.2.1. Under rule 12

4.2.2. W/in 21 days of service of process, defendant must respond to complaint by answer or pre-answer motion or seek additional time to answer

4.2.3. Motion to Dismiss (FRCP Rule 12(b))

4.2.3.1. Basis

4.2.3.1.1. Prior to filing answer, defendant may file motion to raise any or all of the following defenses, seeking dismissal of the claim.

4.2.3.2. Timing

4.2.3.2.1. Lack of SMJ defense may be raised at any time, including on appeal

4.2.3.2.2. Lack of PJ, Improper Venue, Insufficient process, insufficient service must be raised in pre-answer motion or defenses will be waived

4.2.3.2.3. Failure to state a claim upon which relief can be granted and failure to join a party may be raised in any pleading, in a motion for judgement on pleadings or at trial.

4.2.4. Motion for Failure to state a claim upon which relief can be granted

4.2.4.1. May be dismissied if it fails to assert a legal theory of recovery that is cognizable law or fails to allege facts sufficient to support a cognizable claim

4.2.4.1.1. All well pleaded facts are treated as true, resolve all doubts and inferences in the plaintiff's favor

4.2.4.2. Must be more than speculation. Enough facts must be stated to raise a reasonable expectation that discovery will reveal evidence of the necessary element.

4.2.4.3. Court may consider only allegations to the complaint, exhibits attached to the complaint and any matters subject to judicial notice.

4.2.4.4. Outcome

4.2.4.4.1. Granted

4.2.4.4.2. Denied

4.2.5. Motion for a More Definite Statement

4.2.5.1. Vague and Ambiguous

4.2.5.1.1. If a claim is so vague or ambiguous that a party cannot reasonably draft a responsive pleading, the responding party may move for a more definite statement.

4.2.5.2. Standard

4.2.5.2.1. Courts are generally reluctant to grant

4.2.5.2.2. Whether the pleading provides enough information from which the responding party can draft a responsive pleading.

4.2.6. Motion to Strike

4.2.6.1. If the pleading contains any insufficient defense, or redundant, immaterial, impertinent or scandalous material, the court, upon motion or upon its own initiative may order such a defense or material be stricken.

5. Answer

5.1. Admission or denial

5.1.1. Answer must admit or deny the allegations of the plaintiff's complaint.

5.1.1.1. If the defendant is without knowledge or information to form a belief as to truth or falsity, must state so in answer

5.1.1.1.1. Must make reasonable investigation as to whether the info exsists

5.1.1.2. Specific Denial

5.1.1.2.1. Denial of a particular paragraph or allegation in the complaint or other claim for relief

5.1.1.3. General denial

5.1.1.3.1. States they deny each and every allegation of the complaint.

5.2. Affirmative Defenses

5.2.1. Must state any avoidance or affirmative defense that the defendant has or is deemed waived. Some examples include:

5.2.1.1. Accord and Satisfaction

5.2.1.2. Arbitration and award

5.2.1.3. Assumption of risk

5.2.1.4. Contributory Negligence

5.2.1.5. Duress

5.2.1.6. Estoppel

5.2.1.7. Failure of consideration

5.2.1.8. Fraud

5.2.1.9. Illegality

5.2.1.10. Injury by fellow servant

5.2.1.11. Laches

5.2.1.12. License

5.2.1.13. Payment

5.2.1.14. Release

5.2.1.15. Res Judicata

5.2.1.16. Statute of Frauds

5.2.1.17. Statute of Limitations

5.2.1.18. Waiver

5.3. Counter Claims

5.3.1. If defendant has claim against plaintiff, mmay state it as a counter claim in answer to the complaint. Some are compulsory and must be pleaded.

5.4. Time to Answer

5.4.1. If no motion under Rule 12, then must answer within 21 days of service.

5.4.1.1. If service was waived, 60 days after request was sent.

5.4.2. If motion under rule 12, no answer while motion pending. If denied, must be served within 14 days of notice of court's action.

6. Reply

6.1. Response by the plaintiff to defendant's answer.

6.2. Made only when ordered by the court

6.3. Must be served within 21 days of order to reply.

7. Ammendments

7.1. By right a party may amend a pleading once as of right w/in 21 days if no responsive pleading is required

7.1.1. If responsive pleading required, w/in 21 days of service of responsive pleading or within 21 days of being served a motion, which ever is easier.

7.2. By Court

7.2.1. May amend when justice so requires.