Rule 9 (watch for fraud or condition precedent)
Fraud
– must be pled with particularity EXCEPT for mens rea (malice intent)
can be averred generally
Condition Precedent
– can be averred generally BUT denial must be pled with particularity
– must be denied with specificity
Rule 12(b) Motions
Failure to State a Claim (12(b)6)
Look for an element the plaintiff failed to claim…something obvious
Look for the plaintiff pleading himself out of court by
Bringing up a defense for the other side which admits your claim
Pleading facts that the defense should bring up
The obvious standard “so what?” which is really “even if everything you say is true, you are still entitled to n
Motion to Strike
Functional equivalent of a “so what” for an individual paragraph as it relates
This can be used to take things out of the pleadings which would confuse/prejudice the jury
Look for a paragraph that doesn’t relate to the elements of the case
Rule 12(g)—all at once
Any and all pre-answer motions (made during the pre-answer phase) must be made at the exact same time
Rule 11
No Improper Purpose
Harassment
Incurring costs
Causing unnecessary delay
– reasonable investigation under the circumstances
