#17636 - Pleadings Attack Plan - Civil Procedure II - Pleadings Attack Plan

TOPICAL OUTLINE FOR PLEADINGS

1. PURPOSE AND PLEADINGS

   1. Red Rules

      1. Rule 8(a) (MUST SATISFY ALL)

         1. Rule 8(a)(1) - Short & plain statement of grounds for jurisdiction

         2. Rule 8(a)(2) - Short & plain statement of the claim, showing that the Pleader is entitled to Relief

         3. Rule 8(a)(3) - Demand for Judgment for Relief Sought

      2. Rules that Supplement 8a

         1. More General Rules (MUST SATISFY ALL)

            1. Rule 8(d) – Simple, concise, direct

            2. Rule 8(e) – Construing Pleadings

         2. Specific Rules – Rule 9 (MUST SATISFY ALL THAT APPLY)

            1. Rule 9(a) – Capacity and authority

            2. Rule 9(b) – Fraud or Mistake

            3. Rule 9(b) – Conditions of Mind

            4. Rule 9(c) – Conditions Precedent

            5. Rule 9(e) – Official act; Judgment

            6. Rule 9(f) – Time and Place

            7. Rule 9(g) – Special Damages

            8. Rule 9(h) – Admiralty & Maritime

         3. Format Rule (MUST SATISFY)

            1. Rule 10:

               1. Caption

               2. Names of parties

               3. Numbered paragraphs

               4. Single Set of Circumstances

               5. Separate “Counts”

      3. Signature – Rule 11

         1. Every pleading must be signed

2. RESPONDING TO PLEADINGS – Rule 12(a)

   1. Blue Rules

      1. Option 1: File a Motion – Rule 7(b)(1)

         1. Motion to dismiss

            1. Rule 12(b) – Failure to state a claim

         2. Motion for a More Definite Statement

            1. Rule 12(e) – Response required but pleading vague and ambiguous

         3. Motion to Strike

            1. Rule 12(f) – Pleaded Junk or Insufficient Defenses

         4. Reminder: Pre-Answer Motion not required;

            1. If choose to file Pre-Answer Motion, D must include all Rule 12 defenses they have.

      2. Option 2: File an Answer – Rule 7(a)

         1. An Answer if filed either:

            1. Within original response period for counter pleading; or

            2. If pre-answer motion was filed:

               1. (1) then within 14 days after denial; or

               2. (2) any court-ordered revised pleading is served.

         2. Content of Answer

            1. Paragraphed Responses to each Paragraphed Allegation

               1. A party MUST either:

                  1. Admit

                  2. Deny

                  3. Say I Don’t Know

               2. Rule 8(b)(6) – Effect of Failing to Deny

               3. Rule 8(b)(3) – General and Specific Denials

               4. Rule 8(b)(2)/(4) – Partial Denials

            2. Affirmative Defenses

               1. Rule 8(c) – Non-exhaustive defense

3. AMENDING PLEADINGS

   1. Amending Before Trial – Rule 15(a)

      1. Unilaterally: One time, within 21-days of serving pleading or within 21-days adversary files pleading or motion

      2. With Permission: Consent of adversary or leave of Court

      3. Responses to Amended Pleadings due:

         1. Within original time period or

         2. Within 14-days of service of amended pleading

   2. Amending During/After Trial – Rule 15(b)

      1. With Consent

      2. Without Consent

      3. “Variance”

      4. CL

   3. Relation Back – Rule 15(a)

      1. When?

         1. (1) They only flesh out factual details or

         2. (2) Add another claim out of same transaction.

      2. Occurs

         1. 15(c)(1)(A) – SOL Allows

         2. 15(c)(1)(B) – Similar Claims

         3. 15(c)(1)(C) – New Parties

            1. If A & B are met, the new party:

               1. (1) received notice and

               2. (2) knew

   4. Supplemental Pleadings – Rule 15(d)

      1. When?

         1. By Motion & On “Just” Terms

4. TERMINATING PLEADINGS

   1. Court-Ordered Dismissals – Rule 12(b) (BLUE RULES)

   2. Striking a Defense – Rule 12(f) (BLUE RULES)

   3. Voluntary/Involuntary Dismissals – Rule 41

      1. Rule 41(A) – Voluntary Dismissals

         1. Same plaintiff who filed

         2. Why?

         3. How?

         4. Effect

      2. Rule 41(B) – Involuntary Dismissals

         1. When?

         2. Effect

   4. Defaults – Rule 55

      1. Step 1: Rule 55(a) – Entry of a Default

      2. Step 2: Rule 55(b) – Entry of a Default Judgment

      3. Rule 55(c) – Setting Defaults aside

      4. Rule 55(d) – USA Defaults

TIMING??

PURPOSE AND PLEADINGS THAT STATE CLAIMS

1. What is the Purpose of Pleadings?

   1. To determine all actions in a just, speedy, and inexpensive way.

   2. Only Civil actions

   3. Help set the boundaries for the trial…

RED RULES

2. Pleadings that State Claims: (MUST SATISFY)

   1. Rule 8(a)(1) – Short & Plain statement of grounds for jurisdiction

      1. Must prove one of the “9 Heads”

   2. Rule 8(a)(2) - Short & plain statement of the claim, showing that the Pleader is entitled to Relief

      1. Legally Sufficient and Factually Sufficient Claim

         1. Legally Sufficient

            1. Must allege: (otherwise legally insufficient)

               1. Each Element of…

               2. Some valid, substantive legal claim…

               3. In “short and plain” terms.

            2. Tested:

               1. By a “demurrer” – in Rule 12(b)(6): Failure to state a claim.

         2. Factually Sufficient

            1. Must:

               1. “Show” …

               2. In short and plain terms…

               3. Sufficient facts that would entitle pleader to relief

            2. Tested: When are facts alleged “sufficient”?

               1. By a “demurrer” – in Rule 12(b)(6): Failure to state a claim.

   3. Rule 8(a)(3) - Demand for Judgment for Relief Sought

      1. State type of recovery

3. Rules that Supplement Rule 8a: More General Rules (MUST SATISFY)

   1. Rule 8(d)

      1. Simple, concise, direct.

      2. No technical form req’d.

      3. Alternative pleadings

         1. When a party makes 2 different claims and the fact finder needs to find which one works [?]

      4. Hypothetical pleadings

         1. Cannot guess that something “might happen.”

      5. Inconsistent pleadings

         1. As long as there are facts to support each claim you can have alternate claims on the same case

         2. An inconsistency cannot be used to dismiss a claim

         3. Need to discuss them at the same time

   2. Rule 8(e)

      1. Construing Pleadings

         1. “Pleadings must be construed so as to do justice.”

4. Rules that Supplement Rule 8a: Special Rules (MUST SATISFY IF ANY APPLY)

   1. Rule 9

      1. Capacity and authority (Rule 9a) *SPECIAL CASES*

         1. You need not allege

            1. A party’s capacity to sue or be sued;

            2. A party’s authority to sue or be sued in a representative capacity; or

            3. The legal existence of an organized association of person that is made a party

         2. To raise any of those issues, a party must do so by a specific denial, which must stat any supporting facts that are peculiarly within the party’s knowledge

      2. Fraud or Mistake (Rule 9b)

         1. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.

      3. Conditions of Mind (Rule 9b)

         1. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

      4. Conditions Precedent (Rule 9c)

         1. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed.

         2. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.

      5. Official act; judgment (Rule 9e)

         1. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead that judgment or decision without showing jurisdiction to render it.

      6. Time and Place (Rule 9f)

         1. If a pleader includes times and places in her pleading, and in showing that it is not specific, then it can be dismissed

         2. Ex. Pleading the time occurred outside the statute of limitations

      7. Special Damages (Rule 9g)

         1. A special damage is a category or a quantum in that category that is unexpected.

            1. Damages that cannot be anticipated on the pleading as written

            2. Ex. Starting quarterback heading to the Super Bowl and stubbed his toe in Publix

      8. Admiralty & Maritime (Rule 9h)

         1. Favor sailors

         2. If you want admiralty rules, you must say we want to sue under admiralty rules

         3. UNLESS, it is obvious there is no other way you could get into federal court unless it was an Admiralty or Maritime claim

      9. ONLY FRAUD AND MISTAKE & SPECIFIC DAMAGES NEED TO BE ENHANCED CLAIMS WITH SPECIFIC FACTS

5. Rules that Supplement Rule 8a: Format Rules (MUST SATISFY)

   1. Rule 10

      1. Caption (Supp. 8, Section 4a)

      2. Names of parties

      3. Numbered paragraphs

      4. Single Set of Circumstances

      5. Separate “Counts”

6. MUST BE SIGNED: Rule 11 (MUST SATISFY)

   1. Rule 11 – Signing pleadings

      1. Every pleading must be signed

      2. The act of signing constitutes:

         1. No improper purpose

         2. Claim has legal basis

         3. Claim has factual basis

         4. Defenses not improper

RESPONDING TO PLEADINGS

BLUE RULES

1. Option 1: Can file a Motion (Rule 7(b)(1))

   1. Why file a Pre-Answer Motion?? (Instead of just filing the Answer?)

      1. Quick Resolution of a case (or portions of a case) that cannot succeed, or

         1. If there is a built-in defect, we would file to get it thrown out

      2. Obtain Clarity because the Complaint is so vague that no Answer is possible

   2. What KIND of Motions can be filed Pre-Answer?

      1. Motion to Dismiss

         1. A motion to dismiss a part or the entirety of the claim

         2. When? - All the Rule 12(b) defenses

            1. In Rule 12(b) – Failure to state a claim – is claiming that Rule 8 and/or Rule 9 are missing requirements

            2. What exactly is the failure?

               1. Can’t tell if there is a valid claim here or not; or

                  1. Usual* Remedy: Dismiss without prejudice – allow plaintiff to try to plead again

               2. Can tell – the claim is doomed

                  1. There’s a flaw that cannot be remedied

                  2. Usual* Remedy: Dismiss with prejudice – no reason to allow plaintiff to try again.

      2. Motion for a More Definite Statement

         1. Rule 12(e) – Party is required to respond, but pleading is “so vague or ambiguous” that party cannot figure out what is being alleged (and, so, can’t respond).

            1. 1. Required - Can never use this to attack someone’s answer because I am not required to counter plead to an answer

            2. Only works if I have to…

            3. 2. “So vague or ambiguous” - When I read it over, I have no idea what you are accusing me of

               1. Procedure: The Motion must be specific: pointing out specific defects/missing details

         2. Time to make a motion (When?)

            1. Motion is untimely… unless made before counter pleading (Answer)

         3. Remedy

            1. If court grants: pleader must cure deficiencies by amending within 14 days (or other time court sets), or be dismissed.

      3. Motion to Strike

         1. Rule 12(f)

            1. When portions of a leading may be “stricken”:

               1. Pleaded Junk – (1) any redundant, immaterial, impertinent, or scandalous matter, (2) upon showing of prejudice, or …

                  1. (1) explained: Content added to the complaint to be incendiary. Extra information that is...