COMPLAINTS & ANSWERS Consistency in Pleading

1. COMPLAINTS & ANSWERSConsistency in Pleading • Complaints • Pleading “in the alternative” permitted • Alternative theories of recovery • Answers • Deny + Affirmative defenses + 12(b) defenses • Affirmative defenses • Cf. Common law “Confession & avoidance” • But c & a admits allegations of complaint • Federal rules = alternative

2. WHERE WE ARE • Pleadings Complaint Answer 12(b) Motions Amended Pleadings Reply • Pre-Trial • Trial & Post-Trial • Appeal

3. PLEADINGAmendments Amended Pleadings FR 15 (b) Conform to Evidence FR 15(c) Relation back FR 15(a) When & How

4. PLEADINGAmendments FR 15(c) Relation Back Permitted under applicable s/l Claim Party Same T&O Notice Knew (s/h/k) correct party

5. SKILLSArguing From Precedent Rule 15(c)(2) Hypothetical (Variation -Haddle, p. 409) • Suppose Haddle had begun by pleading an age discrimination claim • he was fired because of his age • violates federal law • Discovery proceeds • Claim looks more and more tenuous

6. SKILLSArguing From Precedent Rule 15(c)(2) Hypothetical (cont.) • Amend to add 42 U.S.C. Sec 1985 claim? • statute of limitations has run

7. SKILLSArguing From Precedent Rule 15(c)(2) Hypothetical • Arguments using Moore and Bonerb? • When are two claims sufficiently related? • How does surprise factor in?

8. SKILLSArguing From Precedent Reconciling & Distinguishing Cases • Are Moore and Bonerb distinguishable? • Do you agree with either?

9. RULE 15(c)(3) Adding Parties FR 15(c)(3) Hypothetical Variation on Beeck v. Aquaslide • Suppose after Beeck learned that Aquaslide hadn’t manufactured the slide • Sought to amend the complaint • Change name of def from Aquaslide to the “counterfeit” manufacturer • Permissible?

10. TAKEAWAYS • Black Letter Law (the “gist”) • Amendment relates back if • Permitted under s/l, or • New claim • same transaction or occurrence (t & o), or • New party • Notice, so not prejudiced • Knew/should have known was correct party

11. TAKEAWAYS • Practice Pointers • Don’t procrastinate! • Don’t wait until last minute to file complaint • Don’t plead too specifically

12. READING RULESMAP-ing FR 15(c) • An amendment • of a pleading • relates back to • the date of the original pleading • when • (1) relation back is permitted • by the law that provides • the statute of limitations • applicable to the action,

13. READING RULESMAP-ing FR 15(c) • or • (2) the claim or defense • asserted in the amended pleading • arose out of the • conduct, transaction, or occurrence • set forth • or • attempted to be set forth • in the original pleading,

14. READING RULESMap-ing FR 15(c) • within the period provided by Rule 4(m) • for service of the summons and complaint, • the party • to be brought in by amendment • has received such notice • of the institution of the action • that the party will not be prejudiced • in maintaining a defense • on the merits,

15. READING RULESMap-ing FR 15(c) • and • knew • or should have known that, • but for a mistake • concerning the identity of the proper party, • the action would have been brought • against the party.