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Pleadings
| Question | Answer |
|---|---|
| 62. In federal court, Plaintiff's initial pleading is called a COMPLAINT. It must contain: | a. an allegation of subject matter jurisdiction b. a short and plain statement of the claim showing that the pleader is entitled to relief c. a demand for judgment |
| 63. In federal court, defendant's answer must respond to each paragraph of plaintiff's complaint with one of the following: | a. admission b. denial c. statement that defendant lacks sufficient knowledge to respond |
| 64. In addition to the foregoing, defendant may plead affirmative defenses. If defendant fails to plead these, they are waived. Name three examples: | — contributory negligence — assumption of risk — fraud — statute of limitations — discharge in bankruptcy — estoppel — failure of consideration — payment — release — res judicata — statute of frauds |
| 65. Rule 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a REASONABLE INQUIRY, and that the pleading is | not being presented for any IMPROPER PURPOSE WARRANTED BY EXISTING LAW or a NONFRIVOLOUS ARGUMENT for the ext, modif, or revrsl of existing law or the estblshmnt of new law spprted by EVIDENCE or will likely be after a reasnable opport. for discvry |
| 66. If plaintiff's initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a ___ under rule 12(e). This must be filed ___ the Answer. | Motion for More Definite Statement before |
| 67. Defendant may use a ___ under rule 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. | Motion to Strike |
| 68. Defendant should always challenge plaintiff's Complaint by a ___, under rule 12(b)(6). This allows the court to test the ___ of plaintiff's claim. | Motion to Dismiss for Failure to State a Claim legal sufficiency |
| 69. Defendant may challenge ___ at any time. Defendant must challenge ___ and ___ at the first opportunity or waive them. | subject matter jurisdiction personal jurisdiction venue |
| 70. Two types of counterclaim are ___ and ___. A compulsory counterclaim is one related to plaintiff's claim. If it is not asserted, it is ___. | compulsory permissive waived |
| 71. A third party claim is one brought by a defendant against a ___. It is based on ___ liability. ___ may also bring a third party claim in defense of a counterclaim. | new party derivative plaintiff |
| 72. Pleadings may be amended to add new ___, and new ___ or ___. | factual allegations claims causes of action |
| If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the orig. claim and if the new claim would have been timely if filed with the orig. claim. This is the ___ in rule 15(c). | doctrine of relation back |
| 74. The doctrine of relation back also allows a plaintiff to add a new defendant after the statute of limitations has run if the ___ in Rule 15(c) is satisfied. | balancing test |
| 75. If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff's ___. | Motion for Trial Amendment |
| 76. One exception to the liberal federal pleading rule (“short plain statement of the claim”) is that allegations of ___ must be plead with particularity. | fraud |
| 77. Until recently, most state courts used code pleading, which required plaintiff to plead ___ relating to every element of his claim. | ultimate facts |
| 78. Many states have abandoned code pleading, replacing it with ___ requirements based on the ___. | notice pleading Federal Rules of Civil Procedure |
| 79. Texas still requires plaintiff to plead ___. However, it may not be necessary in each case to plead every ___. | causes of action element |
| 80. Many state courts still permit a ___, with which defendant challenges the ___ of plaintiff's claim. This is similar to rule 12(b)(6) Motion to Dismiss for Failure to State a Claim. Texas does not permit a demurrer. | demurrer legal sufficiency |
| Rule 11 also adds ___ must be warranted on the evidence or based on a reasonable lack of information or belief. | fact denials |
Created by:
longhorn90
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