Attack Plan Pleading, Motions Directed to the Pleading, Amendments

Civ Pro

Intro
A civil action beings with the filing of a complaint with a court. Fundamental
purpose of the pleading and answer is to discover what issues the two parties
disagree over.
I.

II.
III.
IV.

Pleading Stage - Functions

a. Notice to opponent
i. You have been served and this is what it is about
b. Identify and get rid of futile/bad claims
c. Avoid surprises and tying the party down to a story
i. The more the pleasing has to tell you the less likely you are to
get surprised at trial
d. Convince opponent/court
i. Entices settlement
e. Do we want pleadings to do these things
i. Yes more detailed system
1. The more you require the claim to front load
2. Unusual high burden on the plaintiff since you dont get to
the discovery process
f. Function of Pleadings -- old view (current view - do we do that)
i. Notice to opponent (yes we do that )
ii. Narrow Issues for Trial (not really)
iii. Tie Parties down to particular allegation (little)
iv. Permanent Record of what is to be (little)
v. Identify and get rid of bad claims (not really)
vi. Persuade opponent/court (not really)
g. Fact Pleading example 1396 a lot is moved to the pre-trial stage i.e
discovery
i. Plaintiff has to allege facts that plead each of the elements of
the claim
ii. You lose if the facts you allege are different than the facts you
prove?
iii. In Louisiana there are both elements of fact pleading and
elements of notice pleading
See Complaint
See Answer
Amendments to pleadings 15
a. Before Trial
i. 15(a)(1)(A) can amend 21 days after serving
ii. 15(a)(1)(B) can amend 21 days after response
iii. 15(a)(2) in other case, need other parties written consent or
courts leave (motion) - Allowed when justice so requires
1. Not prejudicial or in bad faith
iv. 15(a)(3) Amending does not affect time left for the other
party to respond unless it is less than 14, than the other party
has 14 days to respond
b. During/After Trial

Attack Plan Pleading, Motions Directed to the Pleading, Amendments

V.

VI.

Civ Pro

i. Only allowed If it does not show prejudice to opposing party

15(b)(1)
ii. Normally prejudice to add things like affirmative defenses, but
not if it really relates to trail and does not burden, cause
prejudice, or is made in bad faith
c. Relation Back 15(c)
i. If it meets the requirements of A and B than the pleading is
treated as if it is filled at the time of the original pleading.
ii. 15(c)(1)(A) Law that provides the applicable Statute of
limitations allows relation back OR
iii. 15(c)(1)(B) amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out--or
attempted to be set out--in the original pleading OR
iv. 15(c)(1)(C) (requires 15c1b +) if you add/change the
identity of the party you are grabbing someone who thought
they were free and pulling them, within 120(4m) days of
serving complaint/summons
1. 15c1Ci will not prejudice the other party from defending
on the merits; AND
2. 15c1Cii the other party knew or should have known that
the action would have been brought against it, but for a
mistake concerning the proper partys identity.
d. Joining of Parties or Claims through Amendments
i. Follow rules above, start with 15
ii. 20 permissive joinder of parties
iii. 18 permissive joinder of claims
iv. Chains? 15 to amend, 20 to join party, 18 to bring unrelated
claim against party
Supplemental Pleadings
a. 15(d) Amendments are for mistakes, supplements are for extra
information!
Attorneys Representation to Court
a. Every pleading, written motion, and other paper must be signed by
at least one attorney of record in the attorney's name 11(a)
b. certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
11(b)
i. not being presented for any improper purpose 11(b)(1)
ii. contentions are warranted by existing law or by a nonfrivolous argument for modifying existing law or for
establishing new law 11(b)(2)
iii. factual contentions have evidentiary support or will likely
have support 11(b)(3)
1. have to do more than just take clients word
iv. denials of factual contentions are warranted on the evidence
11(b)(4)
c. Sanctions 11(c) may be imposed

Attack Plan Pleading, Motions Directed to the Pleading, Amendments

VII.

VIII.

Civ Pro

d. Safe Harbor Provisions!

i. Must wait 21 days after serving the attorney before filing the
motion with the court 11(c)(2)
ii. Not jurisdictional fail to bring up defense = assumed to have
waived it
Motion to Dismiss
a. Motion 7(b) a request for a court order must be made by a motion
b. Attacks the legal basis of the claim
c. Can be made on the ground of 12(b)(2)-(7)
d. Only one motion 12(g)(2)
Motion for Summary Judgment FRCP 56
a. FRCP 56a court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.
i. There is no controversy there is nothing for jury to do!
ii. Material Fact - Anderson facts that will affect the outcome
of the case the factual elements that have to be
established to prove a claim that you are making. 487
iii. No Genuine Dispute
1. Anderson We demand more than a mere scintilla.
Must show that there is enough evidence that a
reasonably juror might find for the opposing party.
Every reasonable juror would have to come to a particular
conclusion. In this case this court was considering the
heightened standard of proving with clear and
convincing evidence
a. The standard for summary judgment will
depend on the standard for which the claim
must be proved.
b. Brenan losses it since for a judge to answer the
question he would have to weigh the evidence.
2. Celotex Would the result in Ceolotex be the same today
with the change int eh rule
a. At the time celotex was decide to morvant
did not have to point to any evidence on their
side. Only that the plaintiff had to prove something
b. 56c1 now says asserting a fact being in nongenuine dispute has to demonstrate that by
reference to the record.
b. Procedure:
i. Support with facts: A party asserting that a fact is not
genuinely disputed must:
1. Cite the record (documents, interrogatories, etc) to
prove 56c1A or
2. Show that party cannot produce evidence to support
claims 56c1B

Attack Plan Pleading, Motions Directed to the Pleading, Amendments

IX.

X.

XI.

XII.

Civ Pro

ii. If Opposing party succeeds burden shifts to the party facing

summary judgments to prove them wrong
c. 56d If the facts can be found but have not been found yet, the
judge can give the defendant more time to find them. Have to show
you can find something.
d. Either party can motion for summary judgment and can pertain to
only certain issues. 56a
e. Must be filed anytime until 30 days of close of discovery 56b
f. Compared to a motion to dismiss
i. Summary Judgment (Any sort of information that is generated)
1. Only undisputed facts can be used
ii. Dismissal Made on the ground of a pleading (Assuming
everything from the complaint was true)
Motion for Judgment
a. 12(c) after pleadings are closed, but early enough not to delay trial
b. 12c looks to all assertion. 12b looks just to the pleadings.
c. 12c have the motion to dismiss, but you need to go into discovery to
have the proof
Voluntary Dismissal
a. 41(a)
i. By Plaintiff 41(a)(1)
1. 42(a)(1)(B) this is without prejudice
ii. By Court 41(a)(2)
1. this is without prejudice
Involuntary Dismissal
a. 41(b)
i. Failure to prosecute - have to be actively engaged in getting the
case on the calendar. i.e. parties lose interest.
Default Judgment
a. When a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, the clerk must enter the
party's default. 55(a)