Pleadings
a. Complaint
i. Rule 8(a)
1.
a.
b.
c.
a demand for judgment for the relief the pleader seeks.a short and plain statement of the claim showing that the pleader is entitled to relief; anda short and plain statement of the grounds upon which the court’s jurisdiction depends;
ii. Two Requirements of Pleadings
1.
2.
Must sketch enough facts, if shown to be true, that fall within that body of law
iii. Testing sufficiency of Complaint
1.
a.
i.
1.
Ex: Torts-What elements need to be met for slip and fall liability
ii.
1.
2.
There is no dispute about the law, but a question of whether it actually happenedWhat really happened?
iii.
1.
Most cases fall under this tier
Dispute about the Law and FactsDispute about the FactsDispute about the Law
Three possibilities for lawsuits:
iv. Ethical Limitations
1. Rule 11 – Sanctions
a. 11(a) – Signatures
i. Every (1) pleading, (2) written motion, (3) and other paper shall be signed by the representing attorney or if the party is filing pro se, by the party
b. 11(b) – Representation to the Court
i.
1.
2.
a. or a nonfrivolous argument for the extension, modification or reversal of existing law
b. orestablishment of a new law
3.
the factual contentions must be supported by evidence or is likely to be supported by evidence after further investigationThe claims, defenses and other legal contentions are warranted by existing law
c.
i.
1.
a.
b.
c.
Parties that have violated subdivison (b).Law FirmsAttorneys
The following can be sanctioned:
If subdivision (b) is violated the court may impose appropriate sanctions
d.
i.
1.
a.
You must give other party notice and let give the 21 days to respond to the claim and fix the problem.
2.
a.
If filed after the 21 days and they do not fix the problem you can get reasonable attorney fees.
AwardTime Limit
ii.
the court can raise the motion on its own initiative Rule 11 sanctions are initiated by motion and have to be made separately from other motions or requests
e.
i.
1.
a.
EX: Written apology.
2.
When 11(b)(2) is violated the attorney must pay, not the represented party.Sanctions may be non monetary
sanctions are limited to what is sufficient t
e.You may form a general denial to all the averments, but you do so subject to the obligations set forth in Rule 11.
2. Affirmative Defenses – Rule 8(c)
a.
b.
i.
1.
2.
a.
You have to give people notice so they are not unfairly surprised at trial.
Something that does not allow p to adequately prepare his caseDefense is alleging facts that were not in the answer
What constitutes an avoidance or affirmative defense?
c.
i.
ii.
If you do assert the AD you run the risk of having to prove it.If you do not assert the AD in your answer you run the risk of losing it
Problems w/ affirmative defenses:Or any other matter constituting an avoidance or affirmative defense.
A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies.
A complaint must contain
ii. Pre-Answer Motion
