CIVIL PROCEDURE
Why the adversarial system:
a truer decision is reached
parties should bear the burden of the time and energy required
impartial investigation may be better when no final decision need be reached, setting up sides makes it easier for yes or no decision necessary in a law suit
Atavistic instinct to do battle better satisfied
MOTIONS TO DISMISS
DENIAL: RESPONSIVE PLEADING
-admit, deny, dki—deny knowledge and information
-general denial can be done except for specific acceptance
-Answer—8bc, 8c affirmative defenses
-can’t dispute everything, so it makes sense to address each individually. If deny something factual basis to admit, that’s a problem.
Zielinski v. PPI
-PPI transferred to Carload by time of incident
-statute of limitations ran already
-ineffective denial under 8b—denial shall meet substance of averments denied
-PPI and CCI have the same insurance company, same coverage, that makes it ok.
-Ineffective denials result in admissions
-principles of equity—defendant estopped from denying agency
–12f attack the insufficient defense
-verified complaint—the answer must also be verified(verified means sworn to, you swear to the truth of the allegations)
-don’t deny knowledge of your status, any matter presumptively within the defendants knowledge cannot be denied.
-Anything about defendant status, location, business status should all be within their knowledge.
Negative Pregnant—implies that there is a reasonable sum, if you say, this specific number is not ok, anything less is said to be ok by the court—use 12 e today to get a more specific answer.
-if there’s a compound allegation, defendant’s obligation to sort out what’s true and what’s not.
AFFIRMATIVE DEFENSES
8c
Ingraham v. United States
Federal Tort claims Act—cap on medical liability, you must bring this claim in federal court, act where congress made it exclusively federal
-require notification of affirmative defenses because don’t want to ambush the plaintiff, could change the way the plaintiff argues.
—no bad faith, no prejudice, defendant is allowed to amend
-separate trial on factual issue of manufacture
Moore v. Moore
-during trial, she didn’t ask for anything, they give her custody, child support, separate maintenance, and attorney’s fees
-Court allowed the other issues because with child support, implied consent, reasonably foreseeable. By implicit consent it was tried
-nothing in plaintiff’s pleading, object they will amend and insert other issues. If you do nothing, you allowed the evidence in and you implicitly consented
-RULE 15 C—requires notice and knowledge that you would have been sued but for the mistake, and BOTH had to come BEFORE the statute of limitations.
-rule 4m—name correct defendant, statute runs, you have 120 days after filing to amend. You still have 120 days after filing to amend.
