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COMPLAINTS & ANSWERS Consistency in Pleading

Learn about the rules and techniques for filing complaints, answering them, and making amendments in legal proceedings. Understand the importance of consistent pleading and how to avoid common pitfalls.

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COMPLAINTS & ANSWERS Consistency in Pleading

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  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.

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