Glossary of Pleadings
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- Code Pleading
- (Some States) Sets forth facts constituting the cause of action in ordinary and concise language.
- Notice Pleading
- (Federal court, most states) Sets for a "short and plain statement" of the claim showing the pleader is entitled to relief.
- Elements of Complaint
- Name court and parties to action.
Fed. Ct. - establish SMJ in first paragraph.
State Ct. - assumed to have jurisdiction
Statement of Claim
Prayer for Relief
Certified by attorney
- Pleading "special" matters
- Fraud - particularity
Special Damages/ proximately caused by D's conduct.
- Challenges to Complaint
- Demurrer (State): Defects on face of complaint
Motion to Strike (Federal): Redundant or irrelevant matter; other defect, i.e., late filing.
- Pre-Answer Motions (12b)
- Motion to dismiss for failure to state a claim (identical to a demurrer) Defense available anytime before or during the law suit.
Judgment on the pleadings; Pleadings are insufficient to establish any valid claim or defense. File anytime before trial.
- Summary of 12b defenses
Insufficiency of process
Insufficiency of service of process (first 4 waived if not raised in pre-answer or answer.
Failure to state a claim
Failure to join indispensable party.(non-waivable).
- Defendant's responsive pleading to a complaint.
Affirmative Defense (new matter)
- Amended Pleadings
- Once as a matter of right
within 20 days of service.
Amendment by leave of court, permission.
- Amendments and Statute of Limitations
Amendment to add a new claim against the same party after the SOL has run.
- State and Fed. allow a new claim to be added against same party, to relate back to the date of the orig. filing., as long as new claim arose out of same T & O.
- Amendment Changing or naming a party after SOL.
Error in identity
- Allows P to amend pleading changing or naming the D, after SOL runs, to relate back to orig. filing date., if arose out of same T&O.
1)D received actual notice of the pendence of the action so that he will not be prejudiced in maintaining a defense.
2) Knew or should have known, but for the mistake, claim would have been brought against him.
Amended pleadings supercede the original.
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