a)      Denying – 8(b)

(1)   When a defendant admits something, it is taken by the court as true regardless of whether it IS true.

(2)   David v. Crompton & Knowles – Crompton claimed it did not know the answer to the complaint about a product defect in a product made by one of its subsidiaries before Crompton bought the subsidiary. Later, they found the contract that did not hold them liable, and tried to deny.  But case law says that, if the information was uniquely within the power of the defendant, and they only failed to do their research, then it should be admitted.  Counter-intuitive

(3)   Except as above, you don’t have to know it’s a denial to deny.  You can simply not know the answer.

(4)   If plaintiff alleges a whole lot in one sentence, should deny each one separately.  Can avoid trouble later.

b)      Affirmative Defense – 8(c)

(1)   Also known as “confession and avoidance” from above

(2)   Defendant has the burden of proof in affirmative defenses

(3)   12c – plaintiff can file for judgment on the pleadings if the defendant does not raise an affirmative defense. 

(4)   Even if the defendant does file an affirmative defense, the plaintiff can still file under 12c, and hope for a 12f use by the judge that the defense was insufficient

(5)   If defendant does not raise an affirmative defense in the answer, he can try to file later under 15a, “when justice so requires.”

(6)   Qualified immunity is an affirmative defense – See pg. 196.

B.     Motions with Respect to the Pleadings

1.      Pre-Answer Motions - Rule 12

a)      Rule 12e asks for clarification of the complaint

b)      Rule 12f stops redundant and insufficient claims, gives leave to amend

c)      7 motions in 12b for possible dismissal

d)      12g limits using any not yet brought up; 12h limits when they can be brought up

(1)   Least favored defenses – waived if not raised in the first response; don’t get at the merits of the case, but may require initial determination

(a)   Lack of jurisdiction (12b2) – court does not have jurisdiction over the person

(b)   Improper venue (12b3) – a court has power over a person, but it doesn’t make any sense to have the trial in that court (like when ALL the witnesses are in another state for a car accident)

(c)   Insufficiency of process (12b4)

(d)   Insufficiency of service (12b5) – given to a child, etc.

(2)   Favored Defense – can be raised in any pleading, by motion, or at trial

(a)   Failure to State a claim – 12b6/summary judgment/12c

(b)   Failure to Join an Indispensable Party (12b7)

(3)   Most Favored Defense – can be raised at any time

(4)   No jurisdiction over the subject (12b1)

2.      Rule 11

a)      Originally, just about a signature for a “good ground” for complaint, and it was subjective, therefore abused.  “Empty head, clear heart.”

b)      1983 made it harsh – the lawyer had to investigate before filing complaint or would receive mandatory sanctions set by the court, often attorney’s fees.

c)      1993 loosened it up again, though not as much, requiring a “grace period” for removing uninvestigated complaints before sanctioning – called safe harbor – and court may impose sanctions.

d)      Zuk v. Eastern Pennsylvania Psychiatric Institute: Copyright dispute over films whose text was quoted in Zuk’s book at a later time.   Zuk and his lawyer were found jointly &

severally liable for $15K after a Rule 11 violation.  Lawyer’s violation upheld, because no notice was given to the library to stop renting the films in dispute, and because the lawyer clearly had not learned his copyright law, and made assertions he should not have made.

3.      Counterclaims

a)      Compulsory – can be looked at with the same set of evidence.  The counterclaim must be filed along with the original suit, or it will not be permitted to be filed again.  Use-it-or-lose-it.  Efficiency issue.

b)      Permissive – if a counterclaim is not compulsory, it is considered permissive; it must then have independent jurisdictional support in order to stay in the same jurisdiction.

c)      Wigglesworth v. Teamsters Local Union – Wigglesworth filed under federal law that the union stopped him from advising members of their rights.  The Union counterclaimed that Wigglesworth had libeled them at a press conference about the suit.  The court held the counterclaim had no subject jurisdiction; it was not compulsory, as it did not grow out of the same time period of evidence as the original suit, and given this, libel is firmly grounded in state law, and has not place in federal court

d)      Look for the same set of evidence, and look for logical link between the two claims to determine compulsory v. permissive.

e)      When in doubt, try it. 

4.      Voluntary Dismissal

a)      If plaintiff realizes there is no case, or not enough case right now

b)      Can only dismiss and refile once – 41a1

c)      Can only dismiss before answer or motion for summary judgment, or if both parties agree to the dismissal (41a1i, 41a1ii)

d)      Sometimes, judge’s discretion can say the case is too far along – doesn’t jive with 41a1.

e)      Prejudice

(1)   Can dismiss without prejudice if the defendant has suffered no detriment – meaning can file again later.

(2)   Can sometimes dismiss without prejudice, but judge will make plaintiff pay defendant’s attorney’s fees.

(3)   Can always dismiss with prejudice, losing right to file again later

5.      Amendments

a)      Permission to Amend – 15a

(1)   Each pasty has right to amend a pleading ONCE – after that only leave of court

(2)   David v. Crompton (above) – after the screw-up, asked for leave to go back and amend their answer to deny the point.  The plaintiff said that denial would seriously hurt their case.  Court agreed.  Part of the reasoning was that Crompton had taken so long to deny, and at their own fault, that the plaintiff could no longer sue anyone else because the statute of limitations would have passed.

(3)   Leave to amend granted generally on an “abuse of discretion” standard – will they really hurt one side’s case?  What “does justice require”?  -15a

(4)   Can’t prejudice the other party.

(5)   Most likely to be granted early on

b)      Relation Back Amendments and the Statute of Limitations – 15c

(1)   Relates back to the date of the original pleading

(2)   Schwartz v. Gold Dust – lady falls, sues several “John Doe” parties.  Later figures out who one of the parties is, but it’s after the s.o.l.  She clearly filed before the statute of limitations, but didn’t find the new party until after.  Which should be right?

(3)   15c – Relation Back:

(a)   Allowed by law, OR

(b)   New claim or defense “arose out of the conduct, transaction, or occurrence” in original suit, OR

(c)   Amendment changes party, and

(i)    Still arose out of conduct of original suit, as above, and

(ii)  The party should have known that, but for the mistake, they would be a party.

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