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Pleadings/Amendments
CivPro II - Pleadings/Amendments
| Question | Answer |
|---|---|
| FRCP 1 - Scope/Purpose | Rules govern procedure in all civil actions and proceedings in US district courts. Just, speedy, inexpensive determination of every action and proceeding |
| 2: One Form of Action | Civil Action |
| 8a: Claim for Relief | Pleading that states a claim for relief must contain: 1. short/plain statement, court's jurisdiction 2. short/plain statement showing entitle to relief 3. demand for relief sought. Alternative, different types |
| 8a2: Claim for Relief | Short/plain statement showing entitle to relief. Enough factual matter, taken true, to suggest plaintiff entitled relief. P's factual allegations, raise right to relief above speculative level. Plausible. Twombly |
| 12b6: Motion to Dismiss | Failure to state a claim upon which relief may be granted. When filed, D says even if allegations true, they don't state legally cognizable claim |
| Plaintiff's Burden, Pleading & Production | Complaint = P must plead/allege all elements of each cause of action. Trial = P must produce evidence to prove each element of each cause |
| Defendant's Burden, Pleading & Production | Answer - D must plead each affirmative defense Trial - D must produce evidence to prove each affirmative defense |
| 9b: Fraud/Mistake | In alleging fraud/mistake, must state with particularity circumstances constituting fraud/mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally |
| 9g: Special Damages | If special damage, must be specifically stated |
| 54c: Default Judgment | Default judgment must not differ in kind from, or exceed in amount, what is demanded in pleadings. Every other judgment = what P is entitled, even if not demanded |
| 12b Motions | 12b1 - lack of SMJ 12b2 - lack of PJ 12b3 - improper venue b4 - insufficient process b5 - insufficient service of process b6 - failure to state claim upon which relief may be granted b7 - failure to join party under 19 |
| 12h1: Which Affirmative Defenses are Waivable? | 2, 3, 4, 5 Lack of PJ Improper venue Insufficient service Insufficient service of process * Must raise all of these in his motion, can't raise in answer after he filed motion to dismiss under 12b |
| Affirmative Defenses NOT Waivable? | 1, 6, 7 Lack of SMJ Failure to state a claim Failure to join party under 19 * If 12b6 AFTER answering the claim - 12c and is called Motion for Judgment on the Pleadings |
| When will court grant a motion to dismiss under 12b6? | 1. P not alleged cause of action 2. P's complaint reveals absolute defense 3. P failed to plead all elements of his claim (granted w/out prejudice and w/ leave to amend) |
| 12d: 12b6/12c = 56 | If, on a motion under 12b6 or 12c matters outside pleadings permitted and not excluded, motion must be treated as summary judgment under 56. All parties must be given reasonable opportunity to present all material pertinent to the motion |
| 8b: Responding to Pleading | 1A. short/plain terms each defense to each claim asserted and B. admit/deny allegations 4. If party intends, in good faith, deny only part, he must admit that part and deny the rest. 5. lacks knowledge/information sufficient to form belief, denial |
| 8c: Affirmative Defenses | In responding to pleading: acc/satis, arb/award, ass risk, cont neg, dis bank, dur, est, fail consid, fraud, ill, inj, lac, lic, pay, relea, res jud, SOF, SOL, waiv |
| 15a1: Amendments as of Right | Pary may amend once as a matter of course within: A. 21 days after serving it (if an answer)OR b. if complaint, 21 days after service of answer/12 motion, whichever is earlier |
| 15a2: Discretionary Amendments | A party may amend only with opposing party's written consent or court's leave. Court should freely give leave to amend when justice so requires |
| 15a: Amendments to Pleadings | 1. If complaint - P has right, amend, after D serves Answer (or 12b, e, f motion). If Answer, D has a right to amend once w/in 21 days of serving 2. whenever opposing party consents 3. whenever court agrees. No bad faith, oppos party prejud by amend |
| 15a3: Time to respond to amended pleadings | (Typically an answer to amended pleading) Time remaining to respond to original pleading, or 14 days after service of amended pleading, whichever later |
| 15b: Amendments to conform to evidence presented at trial | 1. (Trial) party objects, evidence not within issues, court may permit amend. Court, freely permit, present merits & objecting party fails prej 2. issue not raised, express/implied consent, treated raised. At any time, after jud, amend to conform |
| 15c: Relation Back of Amendments - Adding New Claims or Defenses | 1. Amendment relates back when: A. law with applicable SOL allows B. amendment asserts claim/defense, arose out of conduct, transaction, occurrence set out/attempted, in original pleading |
| 15c: Relation Back, Adding New Parties | 1. Relates back to orig plead when: C. changes the party against whom the claim asserted (if same CTO orig plead) AND w/in 120 days of filing, the party brought in: i. received notice to avoid prej AND ii. knew/should of known action, mistake proper ID |
| When can you amend the complaint to add a new defendant? | 1. SOL not expired, prob. 2. SOL expired, 15c3. 1. When P file orig comp? Add 120 days 2. claims against new D arise STO as orig 3. new D notice, but for mistake, to avoid prej? 4. If 2 & 3 yes, P can amend and relate back. |
| 15d: Supplemental Pleadings | On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event after the date of the pleading to be supplemented |
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PrGrd
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