CIV PRO I MUELLER - FALL 2004 - A-

CIV PRO I MUELLER - FALL 2004 - A- - DESCRIBING AND...

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DESCRIBING AND DEFINING THE DISPUTE RULES OF PLEADING A. Three purposes for pleading requirements 1. Notice to defendant 2. Notice to the court 3. Deciding the merits a. has the plaintiff adequately plead the elements of a claim. B. The plaintiff must ultimate facts that state a cause of action 1. Not conclusory statements or evidence. C. Must state a claim for relief, to state a claim. Rule 8(a) 1. Short plain statement of grounds for jurisdiction 2. Short plain statement showing entitlement for relief 3. Demand for judgment. D. Defense must respond to each particular accusation. Rule 8(b) 1. Stating you lack knowledge or information sufficient to form a belief on the truth of the accusation acts as a denial, but if the information is solely within our control the court may treat this as an admission. E. Failure to answer a accusation that requires an answer is treated as an admission. Rule 8(d) F. Alternate inconsistent pleading is ok. Rule 8(e) 1. Sound policy favors alternative pleading so that controversies may be settled and complete justice is accomplished in a single action. ( McCormick ) G. If a pleading is to vague or ambiguous the opposing party may move for a more definite statement. Rule 12(e) 1. 12(e) is normally restricted to situations where a pleading in unintelligible.
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2. IF the requirements of Rule 8 are satisfied a 12(e) motion is inappropriate. ( Board of Harbor Commissioners ) HONESTY IN PLEADING A. All pleadings, written motions, ect shall be signed. Rule 11(a) B. Rule 11 (b) When presenting pleadings an attorney is certifying to the best of his knowledge that: 1. It is not being present for an improper purpose 2. The claims, defenses ect. are warranted under existing law or by a nonfrivolous argument to change the law. 3. The allegations have evidentiary support or are likely to have support after reasonable discovery. 4. Denials are warranted based on the facts, or reasonable lack of information or belief. C. If an attorney violates 11(b) sanctions can be initiated by motion or on the courts initiative. Rule 11(c) 1. Sanctions are limited to what is necessary to deter future conduct. 2. “Safe Harbor:” Cannot be sanctioned without being warned and given 21 days to withdraw or correct your mistake, except if sanctions are on the courts initiative. D. Other sanction rules 1. Rule 16 , must cooperate with pretrial 2. Rule 37 , must cooperate with discovery 3. 28 USC §1927 , sanctions for needlessly multiplying proceedings; applies to client. 4. Rule 68 , Plaintiff loses right to collect expenses if he wins less at trial than the defense offered in settlement. 5. Courts say they have the inherent power to sanction.
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SUFFICIENCY OF PLAINTIFFS CLAIM A. Defendant may move to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6) 1. Where the pleadings raise a contested issue of material fact a 12(b)(6) motion must be denied. B.
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CIV PRO I MUELLER - FALL 2004 - A- - DESCRIBING AND...

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