CP Things I need to Know - 1 I. Initiating Litigation...

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I. Initiating Litigation – Pleadings (3 types: Complaint, Answer, Reply) A. The Complaint Generally, the complaint is the first pleading in a lawsuit and is filed by the P against the D or multiple Ds. The Filing of a complaint commences the action. Service on the D usually must occur within 120 days of filing. 1. Rule 7 2. Rule 8(a) : (i) Three Major Elements of the Complaint : (a) A statement setting forth the court’s jurisdiction over the case. (Statement of SMJ, why are you in court? Is there diversity, Federal question?) (b) A statement of claim specifically stating that the P is entitled to some sort of relief. Short and plain. (i) In federal court we use Notice Pleading (don’t have to give a lot of detail.) P just has to tell the D enough so that D knows what he’s being sued for. 1. Exceptions to notice pleading : a. Rule 9(b): Circumstances of Fraud and Mistake MUST be pleaded with particularity. b. Rule 9(g): Items of special damage (Damages that do not normally flow from an event. Must be pleaded with specificity. (ii) Follow elements of cause of action; if to win you have to show A,B,C,D, then allege A,B,C,D. (c) A demand for judgment in the P’s favor, for whatever relief the P seeks (money, injunction, etc.) Basically, tell court what you want. 3. Amending Rule 15 – How do we amend pleadings? 1. 15(a): Has three rules: i. P has a right to amend once before the D serves his answer. (HYPO: P sues D, D moves to dismiss, P files an amended complaint. Did P have a right to do this? YES . D didn’t give answer, she gave a motion, which is not an answer.) ii. D has a right to amend once within 20 days of serving his answer. iii. If there is no right to amend, ask for court permission. Shall be given if justice so requires it. Court will let you amend UNLESS there is too much delay or prejudice. 1 1
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2. 15(b) Variance – Evidence at trial does not match what was pleaded. Can only become relevant when case goes to trial. Either other side objects, or other side fails to object to variance. If other side fails to object to the variance then we go to the first two sentences of 15(b) – Since you didn’t object, evidence comes in. If other side does object to variance, then you go sentences three and four of 15(b) – Court will say “you’re right” and not allow it. It is possible though that they would let you amend and get it in. 3. 15(c) – Try to Amend after the Statute of Limitations has Run: i. Trying to amend to add a new claim. HYPO – Claim filed on July 1, on July 10 statute of limitations runs. After that, in August, P wants to amend to add a new claim. Under 15(c)(2) we can amend if we get relation back . Means amended pleading is treated as though it was filed when
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This note was uploaded on 04/15/2008 for the course CIVIL PROC 101 taught by Professor Fullerton during the Fall '07 term at Brooklyn Law School.

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CP Things I need to Know - 1 I. Initiating Litigation...

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