Pleadings

As with so much in Civil Procedure, there's a lot to cover on the topic of pleadings. I think the best way to organize this topic is to consider what you need to know about plaintiff's complaint, and then to consider what you need to know about defendant's answer. Then, a bit about amending pleadings. To begin, plaintiff's complaint. 

There are 3 things that must be included in the complaint. First, a statement of grounds for subject matter jurisdiction. Next, a short and plain statement of the claim showing that plaintiff is entitled to relief. And, lastly, a demand for relief sought. There is one exception to keep in mind: when a complaint alleges fraud, mistake, or special damages, the complaint must be pleaded with more detail. It's said that in such instances, the complaint must be pleaded with particularity or specificity.

When stating a short and plain statement of the claim, plaintiff must plead sufficient facts to support a plausible claim. If defendant believes that plaintiff has not done that, an opportunity arises for defendant to file a 12(b)(6) motion to dismiss the complaint for failure to state a claim. 

Once the complaint has been served to defendant, defendant has 2 options. Defendant can answer the complaint, or respond by motion. Regardless, defendant must respond no later than 21 days after being served with process. That time is extended if defendant waived service; if waived, defendant has 60 days to respond from when plaintiff mailed the waiver form.

A variety of motions are available to defendant when responding to plaintiff's complaint. A rule 12(e) motion for a more definite statement is made prior to an answer and is used when the complaint is so vague or ambiguous that defendant cannot respond. A rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading. 

A 12(b) motion can set forth a variety of defenses. Some of those defenses are waived if not included in the first response to the complaint. Those waivable defenses are lack of personal jurisdiction, improper venue, improper process, and improper service of process.

Other defenses are not waived. Both the defense of failure to state a claim and the defense of failure to join an indispensable party can be made as late as at trial. A defense of lack of subject matter jurisdiction may be raised at any time. 

If defendant makes a 12(e), 12(f) or 12(b) motion and that motion is denied, defendant must then serve an answer no later than 14 days after notice of the denial. 

Next is the answer. In the answer, defendant either admits some or all of the allegations in the complaint, or denies some or all of the allegations. Another option is for defendant to state that there is insufficient knowledge to either admit or to deny some or all of the allegations. Any failure to deny an allegation will be deemed an admission except regarding the amount of damages.

Defendant can also raise affirmative defenses in the answer. When defendant asserts an affirmative defense, there is no need for plaintiff to respond; the allegations in defendant's answer are deemed denied. 

One final area worth discussing here is the amendment of pleadings. Plaintiff has a right to amend a complaint once no later than 21 days after defendant serves the first response. The defendant has a right to amend an answer once no later than 21 days after serving it. Importantly, if defendant's first response was an answer that did not raise a waivable defense (for example, lack of personal jurisdiction), defendant has the right to amend that response to include the defense. In other words, the defense is not waived if the answer is properly amended. 

Once the 21 days to amend is up, the rules change. To amend after this period, the amending party must seek leave of court (or get written consent from the opposing party). The court will grant leave to amend if "justice so requires". 

It's possible that a party might want to amend a pleading after the statute of limitations has run on a claim. This is possible, provided that the amended pleading relates back to the original pleading. The amended pleading will relate back to the original pleading if the amended pleading concerns the same conduct, transaction, or occurrence as the original pleading. 

The rules above relate to parties amending claims within a pleading. There may be instances, however, when plaintiff wants to amend a pleading to change a defendant. If the statute of limitations has run on the claim, then to do so, relation back will be required. Such an amendment will relate back if the amendment concerns the same conduct, transaction, or occurrence as the original claim, the new defendant had knowledge of the case such that the new defendant will be able to avoid prejudice, and the new defendant knew or should have known that, but for a mistake, the new defendant would have been named originally. Put simply, these elements require that plaintiff sued the wrong defendant first, and that the right defendant knew this.