Civ Pro- Waggoner- Fall 2005- Makar

Civ Pro- Waggoner- Fall 2005- Makar - Pleading ~ Rule 7(a)...

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Pleading ~ Rule 7(a) - Complaint ~ Rule 8(a) o Statement of facts Time, Place, Date – Facts Include all possible parties ( Beeck v. Aquaslide ) Can be vague ( Bell v. Novick Transfer Co .) Reference substantive law Can be what you think law should be Jurisdiction Ask for remedy Ask for all possible ~ Rule 8(e)(2) o Exception ~ Rule 9(b) Fraud or mistake Give Particulars ( Stadford v. Zurich ) Time, Place, Nature o Service of Process ~ Rule 4(m) Give to ∆ w/in 120 days of filing - Pre- Answer Motions ~ Rule 12 o Goal: Delay legally drive up π’s cost o 12(a)(4) – time in which you must answer if motion is denied o 12(b)(1) – subject matter jurisdiction ( Walker v. Norwest ) o 12(b)(2) – personal jurisdiction o 12(b)(3) – improper venue o 12(b)(4) – insufficiency of process o 12(b)(5) – insufficient service of process o 12(b)(6) – failure to state a claim upon which relief can be granted assuming facts are correct, gets to merit of the claim results in amendment for π can educate π sometimes better to wait till trial so they look unprepared in from o f a judge o 12(b)(7) – failure to join a party (Rule 19) o 12(c) – judgment on the pleadings, late 12(b)(6), must still be before trial begins o 12(e) – motion for more definitive statement, before answer o 12(f) – motion to strike, π’s 12(b)(6), attacks affirmative defense o 12(g) – consolidation of defenses in motion o 12(h) – waiver/preservation of defenses, 12(b)(2-5) if omitted o 56 – Summary Judgment, facts aren’t true - Signing, etc. and Sanctions ~ Rule 11 o 11(a) – all paperwork must be signed by attorney o 11(b) – certify to best o knowledge/belief proper purpose, warranted, supported (or will be after discovery) o 11(c) – Sanctions can’t be filed until 21 days after service
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must be Rule 11 infraction ( Christian v. Mattell ) doesn’t have to be monetary ( Bridges v. Diesel Service, Inc ) - Amendment ~ Rule 15 o π: once before answer and ∆: once w/in 20 days of answer o 15(b) – conform to evidence, no unfair surprise variance: prove something different then pleading at trial – lose o 15(c) – relation back, relates to previously asserted claim ( Bonerb v. Carol Foundation
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Civ Pro- Waggoner- Fall 2005- Makar - Pleading ~ Rule 7(a)...

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