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Civil Procedure II
University of Toledo School of Law
Klein, James M.

Civil Procedure II


Pleadings

Pleadings in General (claims and defenses) Rule 8(e)
Should be stated in simple, direct, and concise manner
Purpose: to give notice to opposing parties
Includes: Rule 7
i.      Complaint
ii.      Answer
iii.      Reply to counter-claim
iv.      Answer to cross-claim
v.      Third-party complaint
vi.      Third-party answer
Truthfulness: Rule 11
i.      Requires pleadings, written motions, or other papers be signed by an attorney (or unrepresented party) to certifies to the pleading’s proper purpose and reasonable care in filing
1.      If violated by other counsel
a.       Must give everyone (serve) a copy of the sanctions
b.      Safe-harbor: must then wait 21 days until after service before filing it with the court (a chance for the other council to withdrawal and resubmit papers to correct the mistakes)
c.       Court can also declare a violation, sua sponte
2.      Awarding Sanctions
a.       Money can’t be awarded to a party as a sanction
b.      Sanctions from the court’s initiative cannot award money, unless the court asks to show cause before a voluntary dismissal or settlement of the claims
c.       The court must describe sanctionable conduct and the basis for the sanctions when imposing them
d.      This Rule doesn’t apply to discovery

Complaint: Rule 8
a.      A short and plain statement
1.      Federal Rules: “Notice” Pleading Standard if the pleading notifies the adverse party of the claim and proposed relief sought
a.       Issuable facts, essential material and ultimate facts the case is based on
2.      States: “Fact” pleading standard which requires facts be plead to show the right to remedy
3.      Facts or “evidence” pleaded in complaint cannot be too specific or too generic
4.      When the evidence is unclear, it should be read to favor the plaintiff, thinking that he could provi

     iv.      Alternative and inconsistent allegations
1.      Alternative claims are acceptable
2.      Plaintiff can properly allege facts based on inconsistent legal theories
3.      Pleader can plead inconsistent versions of the facts
4.      Plaintiff can plead one version of facts against one defendant and another version against another def
5.      This enables a plaintiff to sue two parties if unsure who caused damage
6.      Allows plaintiff to find out which party is the correct party during discovery [Rules 26-37]
C.     Pre-Answer Motions: (application to the court for an order) Rule 12
a.      Not responsive pleadings (important for amendment)
b.      Prior to filing an answer (usually), the defendant may file a motion and raise any or all of the following defenses
i.      Note: a motion is not a responsive pleading
Rule 12: Generally