Pleadings and Motions
● The documents for parties to set forth claims and defenses
● Notice Pleading: Not have to put a ton of detail in pleadings,
putting the other side on notice
● Twombly and Iqbal: These cases change the standard of
pleading to require more detail
Section A.) Rule 11: Professional Responsibility
● Aimed at avoiding frivolous documents in litigation
● Rule 11 applies to all documents, including pleadings,
except for discovery documents.
● Rule 11(b): when you sign a document you are certifying
to the court that:
1.)
Doc is not for an improper purpose
2.)
Legal contentions are warranted/law supports
what you're saying
3.)
Factual contentions will/will likely have
evidentiary support after investigation
4.)
Factual denial will/ will likely have evidentiary
support after investigation
Rule 11(b) Procedural Points:
1.)
Cert effective every time you advocate a position
from that document, continuing certification
2.)
Sanctions for the violation of Rule 11 are not
required, up to the court.
3.)
Motion for sanctions cannot be filed right away, draft
motion, serve to other party, Safe harbor provision: 21
days to fix the problem
Section B.) The Complaint
● When P files the complaint against D that is commencing
litigation.
● Rule 8(a)(2) complaint must have:
1.)
2.)
3.)
Statement of Subject Matter Jurisdiction
Short and plain statement of the claim.
A demand for relief
Twombly and Iqbal (Statement of the Claim)
● Establishes that P must plead facts that supporting a
plausible claim
● 3 rules from Twibal:
1.)
Ignore conclusions of law, look at allegations of
fact.
2.)
Facts must support a plausible claim, not just a
possible claim.
3.)
To determine plausibility a judge uses own
experience and common sense.
● Very subjective, based on the judge.
9(b) and 9(g): Heightened Pleading Req.
● Even greater detail, requires the particular details
● In 3 Situations:
1.)
Fraud
2.)
Mistake
3.)
Special Damages
● Most Tested Fraud: need specific circumstances
Section C.) Rule 12: Defendant’s Response
When the defendant sued: you can respond by motion or by
answer.
Timing: When must defendant respond?
● General rule: Must respond by motion or answer 21
days after your served with process
● Rule 4(d): Waive service of process, Defendant will
have 60 days to respond
Motion: is a request for a court order, make or move for a
motion.
Rule 12(b) Defenses
● 7 defenses make a motion to dismiss based on any of
these
● Motion to dismiss OR they can be in the answer as
affirmative defense
1.)
12 (b)(1): Subject Matter Jurisdiction, trying to get
rid of the case because it doesn’t belong in federal court
2.)
12 (b)(2): Personal Jurisdiction, state doesn’t have
the proper authority to boss you around
3.)
12(b)(3): Improper Venue, it is not in the correct
federal district.
4.)
12 (b)(4): Improper Process, problem with summons
and copy of the complaint themselves.
5.)
12(b)(5): Service of Process, problem with the
serving of the summons and complaint
6.)
12(b)(6): Failure to state a claim, like in Twiqbal no
plausible claim
7.)
12(b)(7): Failure to join an indispensable party under
Rule 19
12(g) + 12(h) Rules
1.)
12(b) 2, 3, 4, and 5: must be put in your first Rule 12
response (PJ, Venue, Improper Process, Improper
Service of Process) or they are waived,
2.) 12(b) 6 and 7: Can be raised for the first time any time
during a trial. (Failure to state a claim, Failure to join an
indispensable party) Cannot do it on appeal, only during trial
3.) 12(b)(1): Subject matter Jurisdiction can be raised at any
time It is never waived
Classic Hypo for 12(g) and 12 (h):
- D makes first rule 12 response, 12(b)(5) improper service
of process
- Court denies motion, case continues
- D files an answer, saying no 12(b)(2) Personal
Jurisdiction and no 12(b)(5) Improper venue
- D has waived both of these because they were not in the
very first rule 12 motion.
Section D.) The Answer
● The answer is: a pleading
Could do either as a Defendant:
● Sued, may just answer
● Motion, motion denied, then answer
After motion denied: 14 days to file the answer
What’s done in the Answer
1.)
Rule 8(b): Defendant must respond to the complaint
-Admit some stuff
-Deny some stuff
-Say I don't know
● Failure to Deny: If you do not deny, it counts as an
admission on any allegation except damages.
2.)
Rule 8(c): Raise any affirmative defenses in the
answer or its waived
- Different from denials
- List in 8(c)(1)