Glossary of Pleadings-Civ Pro II
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- Notice Pleading (8a)
- Type of pleading used in most states. Notice Pleading must state that the ct where suit is being filed has jurisdiction and it gives notice re the key facts and legal claims.
- FR 8a-Pleading must contain
- a short plain statement of the claim showing the pleader is entitled to relief.
- Caption of Pleading must contain
- 1. Name of the ct
2. Title of the action and names of all parties
3. The file number
4. Designation of the tpe of pleading (ie. civil action...)
- Atty Verification of the Pleading (FR 11)
- The atty must sign the pleading, verifying that the pleading isn't being used for any improper purpose (no bad faith) 11a
- Rule 11 Sanctions generally
- Result if rule 11 is violated. Ct imposes sanction on either violating atty, cliet or both. 11c
- Most common rule 11 sanction
- awarding of atty's fee to opposing party
- Rule 11 Grace Period
- -for a party against whom a rule 11 motion is filed, has 21 days to withdraw or modify the pleading.
- Consistency in Pleadings 8e
- Pleadings need not be consistent-meaning you can plead in the alternative.
- LIMITATIONS on Pleading in the Alternative
- 1. Must be some evidentiary support for the allegations (11b)
2. You can't plead alternatives that you know to be false.
Practical Limitation: jury may not believe you.
- THE COMPLAINT Generally
- Initial Pleading of a lawsuit. The Plaintiff's statement of a cause of action.
- What is included in the complaint? (8a)
- 1. Jurisdiction
2. Statement of Claim
- What is needed for the Jurisdiction element of complaint?
- - short plain statement of the basis for SMJ
- How do you satisfy the "Statement of Claim" element of the complaint?
- -Adequate Notice Standard: facts only. No need to set out legal theory or a Primie Facia Case.
*Limitation: D can make a motion for a more definite statement if the pleading is vague or ambiguous and the other party cannot reasonably respond. 12e
- Element of Relief for the Complaint
- -a demand for judgment for the relief the pl seeks (it must show that the Pleader is entitled to relief).
- Pleading Special Matters Generally
- certain matters require pleading with specificity if they are to be raised at trial
- Matters that Require Special Pleading are...
(apply to the answer as well)
- 1. Capacity
2. Fraud or Mistake
3. Condition Precedent
4. Official Document, Act, or Judgment
5. Time and Place
6. Special Damages
7. Admiralty and Maritime jurisdiction
- Effective Failure to Plead Special Matters
- Pleader take the full risk of failure to plead any special matter. May lose right to plead the special matter at all, unless ct. agrees to specially permit.
- Rule 11 and filing of Frivolous Lawsuits generally Rule 11...
- establishes standards of conduct and prevents baseless filings. Can be held liable for lack of reasonable inquiry into the truth which is measured by an obj standard of reasonableness.
- What conduct is covered by Rule 11b-Representations to the Court?
- 1. No filings for improper purposes
2. Frivolous lawsuits (only lawyers are liable here)
3. Evidentiary support (11c)
- Rule 11 Sanctions (who imposed upon?)
- may be imposed upon lawyers, law firms, and parties who are responsible for the violation.
- Appealing Rule 11 Sanctions
- 37a says that a penalty for the sanction cannot be appealed until the underlying case is over.
-Grace Period/Safe Harbor provision: again allows 21 days to withdraw or amend pleading.
- Time for Pleading (Complaint)
- will be filed before it is served to parties.
- THE ANSWER (def)
- Defendant's statement in short plain terms of his defenses to each claim.
- Denials in the Answer (types)
- 1. General-simple statement dening each and every allegation asserted.
2. Specific- admits allegations that are true and refutes those challenged as untrue.
*Note: if not denied then admitted as true.
- (Answer) Affirmative Defenses
- -must be pleaded specifically. FR8c lists 19 of these, the most common include: Fraud, res judicata, SOL, Contributory Neg and Illegality
- Specificity in Defenses
- -Should take care to be specific regarding any possible defense w/in the Def's knowledge (may include a 12b6 motion)
- Characteristics of the Answer also apply to P's answer to any of D's counterclaims and to an answer of any 3rd party claim.
- Alternative Pleading
- Defenses may be pleaded in the alternative, even if they are incompatible with one another.
- Time of Pleading the Answer
- General Rule = 20 days
-12b motion by D denied = 10 days
- Waiver of Service = 60 days to answer (4d)
- Counterclaims = P gets 20 days to reply from service of answer.
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