Deck 6: Defending and Testing the Lawsuit: Motions, Answers, and Other Responsive Pleadings

Question 1

When may an action be removed to federal district court? What is the correct procedure and what form is needed to remove an action to federal court?

Answer 1

The objective of removal is to have the case transferred from state court to federal court jurisdiction. The defendant is given this privilege under 28 U.S.C. § 1441 et seq. It affords the defendant the same opportunity that the plaintiff has to choose either the state or federal court when their respective jurisdictions are concurrent. A case may not be removed unless the federal district court has original jurisdiction over the subject matter of the lawsuit. The procedure for removing a case to federal court is governed by 28 U.S.C. § 1446. This statute requires the following procedure:
1. File a "notice of removal" in the federal district court encompassing the area where the state action is pending. The notice must be signed in compliance with Rule 11 of the Federal Rules of Civil Procedure, and a copy of all "process, pleadings, and orders served on . . . defendants" must be attached to the notice [28 U.S.C. § 1446(a)].
2. The notice is a "short plain statement of the grounds for removal" [§ 1446(a)]. It should state:
3. The notice of removal must be served on all parties and filed within thirty days after commencement of the state action or, if the original action is not removable but becomes removable, thirty days after amendment or service of papers from which it can be determined that the action has become removable.
4. A copy of the notice must be "promptly" filed with the state court; the state court must proceed no further.
5. If the time limit for responding to the initial pleading has expired, the defendant has five days from the date the notice is filed to file any motion, objection, or answer to the plaintiff's complaint [Rule 81(c)].

Question 2

Locate in your state rules the requirements, procedures, and time limits that apply to motions. Write a checklist for drafting, filing, and serving motions for both state and federal court, and place it in your systems folder. Verify the time limits pertaining to motions in the Pleadings, Motions, and Time Limits table at the end of the chapter. Add state deadlines.

Answer 2

You may want to draft a state checklist to use in evaluating students' work.
Federal Motions Checklist
I. Drafting Motions, Rules 7(b) and 11
A. Must be in writing, except at trial or hearing
B. Grounds stated with particularity setting forth order
C. Same caption as complaint (et al. allowed) D. Addresses of parties not necessary
E. Attorney's signature and address necessary
II. Components
A. Motion
B. Notice of Motion to inform opponent of motion and hearing (combined with motion) C. Affidavit to set forth additional facts
D. Memorandum of law to present legal authority
E. Order Granting Motion
III. Filing (this is discussed in Drafting the Documents) A. Obtain hearing date from clerk
B. File original documents with clerk
C. File copies in case file
D. Serve copies on plaintiff's attorney
IV. Service
A. Served on opposing attorney (Rule 5)
B. Served not less than five days before hearing [Rule 6(d)]
C. Affidavits served not less than one day before hearing [Rule 6(d)]

Question 3

What is a motion? State the purposes of motions in general.

Answer 3

A motion is a request to the court for an order granting relief favorable to the moving party. Motions have many purposes-for example, to obtain judicial relief such as dismissal of the action, exclusion of evidence, new trial, and others; to narrow the issues for trial; and to establish a record for appeal. The first of these purposes needs no explanation.

Question 4

What method should you use to determine the weaknesses in a complaint subject to a motion to dismiss the complaint? Explain how the method works.

Question 5

Enter a reference to or copy of the notice of removal to federal court in your systems folder.
Develop your own brief checklist for the required procedural stages and place that in your systems folder.

Question 6

What is the purpose of the following: third-party practice, amending and supplementing the pleadings, a motion for judgment on the pleadings, and a motion for summary judgment?

Question 7

What are the requirements for a motion under federal and your state rules? Identify the particular rules that apply.

Question 8

What are the other motions attacking the complaint? State their purposes.

Question 9

Be able to list style and content considerations for drafting an answer, including those that apply to denials.

Question 10

What is the purpose of a supporting affidavit in motion practice? A supporting memorandum of law? What is the difference between the two?

Question 11

What are the components of an answer and define each of them. What is the procedure for locating the possible defenses to a claim?

Question 12

From the steps for preparing and filing a third-party complaint, create a checklist for third-party practice and place it in your systems folder. See Federal Forms 22A and 22B. Note any variations in local practice.

Question 13

Note the rules for calculating time for both the federal and your state jurisdiction [see Rule 6(a) and (e)] in your systems folder. Include the formula and the example on how to calculate the due date.

Question 14

Explain the procedure, applicable rules, and time deadlines for filing and serving a motion to dismiss in both federal and your state courts.

Question 15

Enter state time limits parallel to Rule 56 (summary judgment) in the Pleadings, Motions, and Time Limits exhibit at the end of the chapter. Fill in the state rule and deadline section up to the discovery section and add the table or page reference to your systems folder.

Question 16

What is the purpose of the answer? When must it be filed? What rule is applicable?

Question 17

What is a motion to dismiss? What purpose does it serve?

Question 18

Describe the detailed procedure for filing and serving motions. What federal and state rules apply?

Question 19

What are the other Rule 12(b) motions? Must they be made separately?

Question 20

What is a demurrer? What purpose does it serve?

Question 21

Research on the Internet how to prepare the caption in a case where party A sues party B. Party B files a third-party action against party C. Use your jurisdiction as the place where the case is filed. Draft the caption.

Question 22

If your state makes use of the special demurrer or the bill of particulars, prepare a draft of each and place them in your systems folder.

Question 23

Draft the Notice of Removal to have the case against Allen Howard removed to federal court, as Mr.
McDuff requested.

Question 24

What is the purpose of motions? What are the components of motions? What federal rules establish motion requirements?

Question 25

Review the basic facts set out in Chapter 1 for Case IV, Briar Patch Dolls, Inc. v. Teeny Tiny Manufacturing Co., a contract case. Using the method described in the Affirmative Defenses section of the text, make an initial determination of what affirmative defenses under the topic "discharge" might be available to the defendants. Make a list of these defenses and suggest some facts that might be necessary to support the defense. Because there are numerous defenses in contract law, confine yourself in this assignment to those defenses within the concept of "discharge."

Question 26

Place text page references to or copies of the motion, notice of motion, and affidavit in support of motion for summary judgment in your systems folder.

Question 27

Place a page reference to or a copy of the File Pleading Log in your systems folder.

Question 28

You are directed to look over a complaint for negligence. The body of the complaint reads as follows:
a. On March 22, _, Defendant owned and operated the Bay View Motel.
b. On that date Plaintiff was descending a stairway at the motel, and as a result of Defendant's conduct, tripped and fell down the stairway.
c. As a result of Defendant's conduct, Plaintiff suffered a broken wrist, a brain concussion, and numerous bruises over much of his body.
d. Because of the above injuries, Plaintiff had extensive medical bills and lost six weeks of work, to the sum of $25,000.
Using the method suggested in the Determining What to Attack section, determine if the body of this complaint is defective, and if so, why. Explain how the syllogism method of finding defects applies to this case. Be prepared to defend your conclusion.

Question 29

Under Federal Rule 6(a) and (e) (where applicable), what are the following due dates?
a. Three days before a hearing on Monday, April 8.

Question 30

What is the formula for calculating time limit due dates?

Question 31

Develop a checklist for drafting and filing motions and place it in your systems folder.

Question 32

In your systems folder, place a page reference to or copy of the list of style and content suggestions for the answer.

Question 33

Be sure to note the time requirements for a motion for judgment on the pleadings in the Pleadings, Motions, and Time Limits in the exhibit at the end of the chapter.

Question 34

What is a notice of motion and what purpose does it serve? Do the Federal Rules permit it to be combined with the motion?

Question 35

In your systems folder, place page references to the documents in the text needed to file a motion to dismiss the complaint. Add any pertinent state practice forms.

Question 36

Verify in the Pleadings, Motions, and Time Limits table the deadlines for amended pleadings set out in this chapter and in Rule 15. In addition, draft a checklist of procedures and time limits regarding amended pleadings, and add it to the systems folder.

Question 37

Draft (a) a motion to strike and (b) a motion to make more definite and certain. What are the applicable rules?

Question 38

Prepare the Request to Amend Pleadings in Case IV, based on the defendant's answer and affirmative defenses presented in assignment 3 above.

Question 39

What does it mean to preserve an issue for appeal?

Question 40

What time deadlines must be heeded in motion practice? State the applicable rules.

Question 41

What may be changed or added in amendments to pleadings? What may not? Theorize about why this is so.

Question 42

An acceptable way to gain time to prepare the answer is to file a motion to dismiss.

Question 43

Parties generally cooperate in filing a joint application for an order for extension of time.

Question 44

What grounds to dismiss a complaint are covered in Federal Rule of Civil Procedure 12(b)?

Question 45

Compare and contrast counterclaims and cross-claims.

Question 46

It is best not to plead inconsistent facts where verification is required.

Question 47

Argumentative denials are the most persuasive.

Question 48

Any type of case may be removed from state to federal court.

Question 49

Increasingly, an independent jurisdictional basis for a permissive counterclaim is not required for federal supplementary jurisdiction.

Question 50

What weaknesses in the complaint indicate a failure to state a claim and, thus, would be grounds for a motion to dismiss?

Question 51

A motion to strike seeks to rid a pleading of

A) prejudicial language.
B) impertinent language.
C) insufficient defense.
D) all of the above.

Question 52

What is the purpose of removal from state to federal court, and what strategic advantages may result?

Question 53

A response to a motion must be served not later than one day before the hearing on the motion.

Question 54

If a complaint is dismissed

A) the lawsuit is over. b a demurrer must be filed.
C) the plaintiff will probably amend the complaint.
D) the defendant will probably amend the motion.

Question 55

Because electronic service of documents is fast, the time limit for responsive service is reduced by three days.

Question 56

What are the differences between denials and affirmative defenses?

Question 57

A motion must always be accompanied by a(n)

A) affidavit.
B) notice of motion.
C) memorandum of law.
D) all of the above.

Question 58

Why should the motion to strike and the motion to make more definite and certain be kept in mind when you draft pleadings?

Question 59

What defenses must be filed in motions previous to the answer or in the answer? Why is this important?

Question 60

What is the difference between a motion for judgment on the pleadings and a motion for summary judgment?

Question 61

Affirmative defenses are

A) the same as denials.
B) available for only a few types of cases.
C) defined by substantive law.
D) defined by procedural law.

Question 62

How can the syllogism method help you attack a complaint for the defendant?

Question 63

List four possible components of the answer.

Question 64

Give three strategic advantages for removing an action from state to federal court.

Question 65

A motion for summary judgment

A) must allege that there is no question of fact.
B) must allege that there is no question of law.
C) must not include evidence.
D) must be filed before the answer.

Question 66

A response to a motion

A) may be sufficient for a judge to deny the motion without a hearing.
B) can become the basis for a possible oral argument before the judge.
C) is unnecessary if there is a hearing.
D) may not include legal authority.

Question 67

What is the purpose of impleader, and what federal rule governs it?

Question 68

Defenses to be alleged affirmatively include

A) res gestae.
B) failure of payment.
C) latches and hinges.
D) estoppel.

Question 69

According to Federal Rule 6(a), if a complaint is received on Friday, June 14, what is the last date for filing the answer within a 20-day time limit? What if the answer is electronically served?

Question 70

Notice of removal should

A) be served with the answer.
B) state facts in support of state jurisdiction.
C) state that all defendants have joined in the removal action.
D) remand the action to state court.

Question 71

List four grounds for dismissing a complaint.

Question 72

What is the penalty for claiming insufficient information to form a belief in the answer simply to avoid the work of investigation?

Question 73

What does an attorney's signature on a document mean?

Question 74

Removal of an action from state to federal court

A) may be requested by the plaintiff.
B) is allowed only when state and federal jurisdictions are concurrent.
C) allows the advantage of a six-person jury.
D) is a constitutional right.

Question 75

Removal of an action from state court is permitted

A) if unrelated to a federal question case.
B) in workers' compensation cases.
C) by U.S. agencies and officers.
D) in all class action cases.

Question 76

What is the difference between compulsory and permissive counterclaims?

Question 77

Allegations in the complaint will be deemed admitted unless

A) they are denied in the answer.
B) the defendant files a motion to strike.
C) they do not state a cause of action.
D) they are part of a syllogism.

Question 78

What are the basic requirements of a motion in Rule 7(b)?

Question 79

Pleadings may be amended in all of the following except

A) within 20 days of service.
B) with leave of the court.
C) with written consent of opponent.
D) only before trial.

Question 80

How may a plaintiff respond to affirmative defenses?