More review

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More review!
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?s Options Rule 12 motion or Answer

• When must ? do something?
• 20 or 60 days, depending on how process was
  served. 12(a)(1).
• What cant ? do
• Move under 12(c).
• Move under Rule 56 (directly but see last
  sentence of Rule 12(b)).
• Okay, I probably overstate the pragmatic side.

• What must ? do?
• file a rule 12 motion, or answer. 12(a)(4).
• If he does nothing 55(a)
• Why if it is available should ? use a Rule 12
  motion rather than answer?

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(No Transcript)
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Problems

• 19
• 1
• 2a
• 2b
• 2c

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Answer

• Admit, deny, or track language of 8(b), 2d
  sentence.
• Include affirmative defenses
• What makes something an affirmative defense as
  opposed to something that can be raised through
  denial?

• Affirmative defenses 1 accord and
  satisfaction, 2 arbitration and award, 3
  assumption of risk, 4 contributory negligence,
  5 discharge in bankruptcy 6 duress, 7
  estoppel, 8 failure of consideration, 9
  fraud, 10 illegality, 11 injury by fellow
  servant, 12 laches, 13 license, 14 payment,
  15 release, 16 res judicata, 17 statute of
  frauds, 18 statute of limitations, 19 waiver,
  20 and any other matter constituting an
  avoidance or affirmative defense."
• What if defendant doesnt plead it?

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Counterclaims

• Authority 13(a)-(f)
• (a) Must (shall) be plead if
• (1)
  and
• See (e) for after-acquired counterclaims.
• (2)
  but does not
• (3)
• Unless
• (1)
  or
• (2)
• OR WHAT???
• (b) May be plead if something other than (a) or
  is within the unless above.
• (f) Amending answers to assert counterclaim
• Which controls, 15(a) or 13(f)? See SW case
  (later)
• (h) If need to add parties.
• Jurisdiction OJ? SJ?

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Problems

• 20
• 1
• 2
• 21

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Impleader by Defendant - 14(a)

• A defendant who sues a third party is called a
  third-party plaintiff.
• The party sued by the third-party plaintiff is a
  third-party defendant.

• A defendant can sue a third party who is or
  may be liable to the defendant for all or a
  part of the plaintiffs claim against the
  defendant.

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Omissions

• Suppose Peters original complaint seeks damages
  only for injuries, not damages to the car.

• (1) What impact does that have on the scope of
  automatic disclosures due from either party?
• (2) What are Peters options if he later during
  this suit he wants to get damages for the car?
• (3) If Peters never takes advantage of that
  option, can he file another suit later on for
  those damages?

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Amendments Two Issues

• Will amendment be allowed?
• Is there a right to amend?
• Will the other party agree to allow amendment?
• Often opponents agree because the rules
  favor allowing an amendment
• (c) If not, what determines whether the court
  will exercise its discretion to grant leave to
  amend?

• (2)If the amendment is allowed and it adds a
  claim, will it relate back to the date the
  original pleading was filed? FRCP 15(c)
• Relation back only matters if the complaint
  was filed before limitations ran on the
  claim-being-added, but ran on it before the
  amendment was served.

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Rule 15(a)

• A pleading to which a responsive pleading is not
  permitted may be amended once as a matter of
  right within 20 days of its service, unless the
  case is set for trial.

• A pleading to which a responsive pleading is
  permitted may be amended once until the
  responsive pleading is served.
• Served
• What if defendant serves the answer on day 18
  can plaintiff amend on day 19?
• What if the defendant files the answer on Day 18
  plaintiff files the amendment on Day 19 and
  defendant mails the answer on Day 20, and
  plaintiff receives it on 21?
• What if the defendant files and mails the answer
  on day 18 plaintiff amends on 19 plaintiff
  receives the answer on 20? See FRCP 5(b)(2)(B)

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Relation Back FRCP 15(c)

• An amendment of a pleading relates back to the
  date of the original pleading when
• relation back is permitted by the law that
  provides the statute of limitations applicable to
  the action or
• 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 or
• the amendment changes the party or the naming of
  the party against whom a claim is asserted if the
  foregoing provision (2) is satisfied and, within
  the period provided by Rule 4(m) for service of
  the summons and complaint, the party to be
  brought in by amendment (A) has received such
  notice of the institution of the action that the
  party will not be prejudiced in maintaining a
  defense on the merits, and (B) 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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MSJ Houchens (35)

• Facts?
• Who was movant?
• Who had BoPers on subject of MSJ?
• What is presumed from the fact that he was
  missing?
• What wasnt presumed?
• Why did that matter?

• Why is the inference of accidental death
  permissible in Martin, Engelhart, and VNB, but
  not here?
• Why does that matter?