Time Table
Given in Rule 12(a)
1. Complaint – must be served within 120 days of filing Rule 4(m)
2. Answer – must be served within 20 days after service of the complaint EXCEPT:
a. Different state rule
b. Rule 12 motion: if someone loses a rule 12, he has 10 days after to answer
c. 60 days if D waives formal service: 12(a)(1)(A)(ii). Time runs from when request from waiver was sent
3. Counterclaim – plaintiff must serve his reply within 20 days after the service of an answer
Complaint
1. Attorney must not file frivolous pleading (Rule 11): it is lawyer’s job to make sure pleading is not frivolous and not issue to harass or delay the adversary. Lawyer who fails can be sanctioned or fined.
a. Lawyer must sign pleading and is responsible for its contents. He is certifying that the “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances”.
i. The inquiry is not for an improper purpose (delay, increasing cost of litigation)
ii. The claims, defenses, and other legal contentions and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.
iii. The factual contentions have evidentiary support, or will likely have evidentiary support after discovery
iv. The denials of factual contentions are warranted on the evidence or are reasonably based on the lack of information 11(b)
b. Sanctions: the most common sanctions are monetary under 11(C)(4) and are paid to the court. Paid to other party only when warranted. Sanctions are discretionary
c. Lawyer must make a reasonable inquiry before signing the pleading. Lawyer cannot blindly sign the pleading and must at least ask client some questions.
i. If a lawyer later learns that the pleading is not meritorious, he must withdraw it or face sanctions 11(b) – Later advocating
ii. Bad faith no required
d. Rule 11 can be through motion or by the courts own initiative – 11(c)(1)(b)
i. If a party makes the motion, they must first serve the other party with notice of their intention. If the challenged item is withdrawn within 21 days, the motion does not go to the court.
e. Sanctions can extend to a lawyers firms as well as a party (provided the party made false statements of was responsible for the rule 11 violation – 11(c)(1)).
f. May be applied even in the case of Voluntary dismissal, Rule (41)(a)(1)(i)
Complaint
1. Claims do not have to be internally consistent – Under Rule 8(d), pleading in the alternative is allowable
2. Elements of a complaint (and counterclaim, cross claim, third party claim) – complaints are the beginning of an action under rule 3
a. Jurisdiction – a short and plain statement of the grounds for the court’s jurisdiction
b. Statement of claim – a short and plaint statement of the claim showing that the pleader is entitled to relief
i. Has been construed to place the fewest possible technical requirements on the pleader. A LEGAL THEORY IS NOT REQUIRED NEITHER IS A PRIMA FACIE CASE (i.e. all the elements do not have to be laid out as long as there is enough stated to show what is being alleged)
ii. Conclusory statement is not enough – must state basic facts of claim, not just a conclusion
iii. Each claim should be set forth in a separate count, and that the counts should be broken into numbered paragraphs, each of which is limited to the statement of a single set of circumstances
c. Relief – a demand for the relief sought
i. Prayer for relief: at least one of the following
1. Money damages
2. Injunctive of equitable relief
3. A declaratory judgment
ii. Wr
no direct evidence of Bell Atlantics conduct, rather were making inferences from parallel conduct.
i. Must have more than labels and conclusions (speculation), a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level. Rule 8(a)(2) requires a “showing” rather than an assertion. Policy reasons: high discovery costs. Conley v. Gibson: too broad, allows for any statement revealing any theory of a claim to suffice
ii. Interpretation: Factual allegations must, if true, make the claim itself to be a plausible one, not just a speculative one.
c. If dismissed under 12(b)(6), the plaintiff will almost always get to amend without prejudice. If before answer, the as of right. If after, with the courts leave.
i. After amending, the plaintiff can appeal the motion if the final ruling goes against him if the required amendment struck a “vital blow” to his case
ii. Plaintiff unwilling to replead can appeal immediately.
1. If on appeal, plaintiff loses, he needs leave to amend (much stricter in this case)
d. If defendant loses 12(b)(6) he can continue by answering (and maybe appeal if he loses the case) or submit to default judgment and appeal (a gamble and the plaintiff will always be allowed to amend if appeal is in defendant’s favor)
9. Motion for judgment on the pleading: after the defendant answers, the defendant can challenge the sufficiency of the complaint by Rule 12(c). Same substance as 12(b)(6)
