Civ Pro II - Civ Pro Chapter 6 Pleading Stating a Claim...

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Civ Pro Chapter 6: Pleading Stating a Claim: Rules 8(a), (e), 10, 11, 12(b)(6) Class Notes: This semester we will be studying the Civil litigation process- from pleading to appeals. - (Pleading, discovery, resolution without trial – default judgment, involuntary/voluntary dismissal, summary judgment – trial, judgment, and appeal) Pleading stage: beginning of litigation. What goes on? Filing complaint party tells his or her story Then there is an initial flurry of documents back and forth What are the docs in Pleading? - Complaint –Answer Read rule 7(a) p. 422 Only complaints, answers, counterclaims, crossclaims, and reply to answer are part of the pleading. Distinction: Pre-answer How do we know what a complaint is? - It’s a pleading Rule 8 is what a complaint is; although it doesn’t actually mention the word “complaint” - Anytime an assertion for a claim is stated for relief, Rule 8 applies - Defendant then asserts a claim against plaintiff- that is called an Answer Files complaint (rule 8) Plaintiff ---------------------------------Defendant ---------------- Then D files counterclaim against P- Rule 13- as part of his answer Amended complaints and amended answers are allows- separate rule applies Pleadings those documents listed in 7a - Other requests are called motions - Other docs: briefs, proposed orders, etc Pleadings either: set forth a claim for relief, or, answer a claim for relief (and defenses) The court may allow a reply to an answer Filing of pleadings: Complaint .Answer Rule 8 governs Filing of Rule 12 motions, filing of Amendments to Pleadings Rule 11 = significant during pleading stage
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Rule 12(b)= allows action to be resolved very early – quick resolution before defendant incurs much expense/research Rule 12(a)= creates/governs filing of an answer - (a)(4) timing altered if a Rule 12 motion is filed Rule 12(b)= Pre answer motion…avoiding the merits of the lawsuit & challenging technical components - Defendants use it is they can, allows them to resolve the action with efficiency 12(b) modern equivalent to old dilatory please Avoids the merits {Not Here, or Not Now, or Not Until Defect Is Fixed 12(b)(6) of preemptory plea of demurrer – “so what” addresses the merits; but before answering -Answer = traverse or confession & avoidance “Not true;” or, “Yes, but” Plaintiff can refile; but if an action is dismissed on the merits- no more opportunities But often, court gives opportunity to amend - Dismissal “with leave to amend” –or- “with prejudice” (which means, no more tries) - 12b motions either avoid or address the merits Pleadings serve purposes – especially if action not dismissed on 12b motion - Must provide sufficient notice of the claim (nature of the claims, defenses, and counterclaims) - To provide opportunity to allege certain relevant facts (to tell your story) - To guide discovery – tied to claims and defenses Forms – jurisdictional statement (form 2, p. 180)…claim for relief p. 180-183 – forms 3,
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This note was uploaded on 04/27/2010 for the course LAW 840 taught by Professor Tim during the Spring '10 term at University of Louisville.

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Civ Pro II - Civ Pro Chapter 6 Pleading Stating a Claim...

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