Rules Governing Pleadings And Motions Outline

INTERMISSION: RULES GOVERNING PLEADINGS & MOTIONS

1. General Rules of Pleadings – FRCP 4, 5, 8(a), 9(b), 10, 11

   1. Synthesized Rule/Procedure

      1. Π* must file all pleadings with the court and serve each to Δ*.

      2. Each pleading should have a caption and title, numbered paragraphs, and a signature certifying that the pleading is not frivolous and has evidentiary support.

   2. Textual Rule

      1. Service: pleadings addressed to absent parties (e.g. the complaint) must be served via FRCP 4. All other pleadings must be served via FRCP 5. Note that service is complete upon mailing. FRCP 5(b)(3)(C).

      2. Pleadings Allowed: a complaint; an answer to a complaint; an answer to a counterclaim designated as a counterclaim; an answer to a cross claim; a third-party complaint; an answer to a third-party complaint; and if the court orders, a reply to an answer. FRCP 7(a).

      3. Pleading Special Matters: fraud; time & place; and special damages must be pleaded with specificity. Capacity or authority to sue; conditions precedent; official documents; or judgments may be normally pleaded with generality. FRCP 9(b).

      4. Format: all pleadings must be “simple, concise, and direct,” FRCP 8(d)(1), and must have:

         1. a caption with the court’s name, a title, file number and a FRCP 7(a) designation (e.g. 7(a)(1), “a complaint”);

         2. the title must name all of the parties (complaint only) or the first party on each side; and

         3. numbered paragraphs should each limited to a single set of circumstances. FRCP 10.

         4. They also must have the signature of an attorney; if lacking, this should be corrected. FRCP 11(a).

      5. Representations to the Court: Π*’s attorney must certify that it is to the best of her knowledge, information, and belief, that the pleading is not meant to harass; the legal contentions are warranted; the factual contentions have evidentiary support or will likely have evidentiary support; and that denials are warranted on the evidence or reasonably based on a lack of information. FRCP 11(a)–(b).

      6. Construing Pleadings: they should be construed so as to do justice. FRCP 8(e).

2. General Rules of Motions – FRCP 6(c), 7(b), 11.

   1. Synthesized Rule/Procedure

      1. Π* must make a request for a court order by motion. Written motions must be served to Δ*.

   2. Textual Rule

      1. Service: written motions must be served to Δ* unless they may be heard ex parte. FRCP 5(a)(1)(D). Note that service is complete upon mailing. FRCP 5(b)(3)(C).

         1. Hearings: Notice of hearings must be served at least 14 days before the time specified for the hearing unless the motion may be heard ex parte or the court sets a different time. FRCP 6(c)(1).

      2. Affidavits: any affidavit supporting a motion must be served with it; any opposing affidavit must be served at least 7 days before the hearing. FRCP 6(c)(2).

      3. Format: motions must be in writing unless made during a hearing or trial; state with particularity the grounds for seeking the order; and state the relief sought. FRCP 7(b).

         1. The formats for pleadings (e.g. a caption) apply to motions. FRCP 7(b)(2).

         2. They also must have the signature of an attorney; if lacking, this should be corrected. FRCP 11(a).

      4. Representations to the Court: Π*’s attorney must certify that it is to the best of her knowledge, information, and belief, that the pleading is not meant to harass; the legal contentions are warranted; the factual contentions have evidentiary support or will likely have evidentiary support; and that denials are warranted on the evidence or reasonably based on a lack of information. FRCP 11(a)–(b).

3. Multiple & Frivolous Claims –FRCP 8(d)(3), 11, 18, 28 U.S.C. §1927

   1. Synthesized Rule/Procedure

      1. Π* may include multiple claims in her pleading, even if they are inconsistent, so long as they are all to the best of Π*’s belief.

   2. Textual Rule

      1. Multiple Claims: Π* may state as independent, alternative, or contingent claims as many as it has against Δ*, FRCP 18, regardless of consistency or hypotheticality, FRCP 8(d)(3).

      2. Frivolous Claims: are ones in which 11(b) is violated; the court may impose an appropriate sanction, FRCP 11(c)(1), defined by 11(c)(4) (e.g. nonmonetary directives) and limited by 11(c)(5) (e.g. no monetary sanctions for violating 11(b)(2) (legal claims)).

         1. On Motion: Π* must move separately from other motions and serve under FRCP 5, but if Δ amends or withdraws problem within 21 days, no sanctions. Court may award prevailing party expenses. FRCP 11(c)(2).

         2. On Court’s Initiative: court may order Δ* to show cause why conduct has not violated FRCP 11(b). FRCP 11(c)(3).

   3. Analysis

      1. Multiple Claims

         1. Π may plead inconsistent allegations so long as they each satisfy FRCP 11(b) (to the best of Π’s belief...”) and Π does not know one is false. McCormick.

         2. Inconsistent pleadings may be eliminated in...

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