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Pleadings Attack Plan Outline

Law Outlines > Civil Procedure II - Pleadings Attack Plan Outlines

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Pleadings Attack Plan
TOPICAL OUTLINE FOR PLEADINGS

1. PURPOSE AND PLEADINGS
a. Red Rules i. 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 ii. Rules that Supplement 8a

1. More General Rules (MUST SATISFY ALL)
a. Rule 8(d) - Simple, concise, direct b. Rule 8(e) - Construing Pleadings

2. Specific Rules - Rule 9 (MUST SATISFY ALL THAT APPLY)
a. Rule 9(a) - Capacity and authority b. Rule 9(b) - Fraud or Mistake c. Rule 9(b) - Conditions of Mind d. Rule 9(c) - Conditions Precedent e. Rule 9(e) - Official act; Judgment f. Rule 9(f) - Time and Place g. Rule 9(g) - Special Damages h. Rule 9(h) - Admiralty & Maritime

3. Format Rule (MUST SATISFY)
a. Rule 10:
i. Caption ii. Names of parties iii. Numbered paragraphs iv. Single Set of Circumstances v. Separate "Counts"
iii. Signature - Rule 11

1. Every pleading must be signed

2. RESPONDING TO PLEADINGS - Rule 12(a)
a. Blue Rules i. Option 1: File a Motion - Rule 7(b)(1)

1. Motion to dismiss a. Rule 12(b) - Failure to state a claim

2. Motion for a More Definite Statement a. Rule 12(e) - Response required but pleading vague and ambiguous

3. Motion to Strike a. Rule 12(f) - Pleaded Junk or Insufficient Defenses

4. Reminder: Pre-Answer Motion not required;
a. If choose to file Pre-Answer Motion, D must include all Rule 12 defenses they have.
1 Pleadings Attack Plan ii. Option 2: File an Answer - Rule 7(a)

1. An Answer if filed either:
a. Within original response period for counter pleading; or b. If pre-answer motion was filed:
i. (1) then within 14 days after denial; or ii. (2) any court-ordered revised pleading is served.

2. Content of Answer a. Paragraphed Responses to each Paragraphed Allegation i. A party MUST either:

1. Admit

2. Deny

3. Say I Don't Know ii. Rule 8(b)(6) - Effect of Failing to Deny iii. Rule 8(b)(3) - General and Specific Denials iv. Rule 8(b)(2)/(4) - Partial Denials b. Affirmative Defenses i. Rule 8(c) - Non-exhaustive defense

3. AMENDING PLEADINGS
a. Amending Before Trial - Rule 15(a)
i. Unilaterally: One time, within 21-days of serving pleading or within 21-days adversary files pleading or motion ii. With Permission: Consent of adversary or leave of Court iii. Responses to Amended Pleadings due:

1. Within original time period or

2. Within 14-days of service of amended pleading b. Amending During/After Trial - Rule 15(b)
i. With Consent ii. Without Consent iii. "Variance"
iv. CL
c. Relation Back - Rule 15(a)
i. When?

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

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

1. 15(c)(1)(A) - SOL Allows

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

3. 15(c)(1)(C) - New Parties a. If A & B are met, the new party:
i. (1) received notice and ii. (2) knew

2 Pleadings Attack Plan d. Supplemental Pleadings - Rule 15(d)
i. When?

1. By Motion & On "Just" Terms

4. TERMINATING PLEADINGS
a. Court-Ordered Dismissals - Rule 12(b) (BLUE RULES)
b. Striking a Defense - Rule 12(f) (BLUE RULES)
c. Voluntary/Involuntary Dismissals - Rule 41 i. Rule 41(A) - Voluntary Dismissals

1. Same plaintiff who filed

2. Why?

3. How?

4. Effect ii. Rule 41(B) - Involuntary Dismissals

1. When?

2. Effect d. Defaults - Rule 55 i. Step 1: Rule 55(a) - Entry of a Default ii. Step 2: Rule 55(b) - Entry of a Default Judgment iii. Rule 55(c) - Setting Defaults aside iv. Rule 55(d) - USA Defaults
TIMING??

3 Pleadings Attack Plan
PURPOSE AND PLEADINGS THAT STATE CLAIMS

1. What is the Purpose of Pleadings?
a. To determine all actions in a just, speedy, and inexpensive way.
b. Only Civil actions c. Help set the boundaries for the trial…
RED RULES

2. Pleadings that State Claims: (MUST SATISFY)
a. Rule 8(a)(1) - Short & Plain statement of grounds for jurisdiction i. Must prove one of the "9 Heads"
b. Rule 8(a)(2) - Short & plain statement of the claim, showing that the Pleader is entitled to Relief i. Legally Sufficient and Factually Sufficient Claim

1. Legally Sufficient a. Must allege: (otherwise legally insufficient)
i. Each Element of…
ii. Some valid, substantive legal claim…
iii. In "short and plain" terms.
b. Tested:
i. By a "demurrer" - in Rule 12(b)(6): Failure to state a claim.

2. Factually Sufficient a. Must:
i. "Show" …
ii. In short and plain terms…
iii. Sufficient facts that would entitle pleader to relief b. Tested: When are facts alleged "sufficient"?
i. By a "demurrer" - in Rule 12(b)(6): Failure to state a claim.
c. Rule 8(a)(3) - Demand for Judgment for Relief Sought i. State type of recovery

3. Rules that Supplement Rule 8a: More General Rules (MUST SATISFY)
a. Rule 8(d)
i. Simple, concise, direct.
ii. No technical form req'd.
iii. Alternative pleadings

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

1. Cannot guess that something "might happen."
v. Inconsistent pleadings

4

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