COMPLAINTS ANSWERS Consistency in Pleading n Complaints n

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

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

PLEADING Amendments Amended Pleadings FR 15(a) When & How FR 15 (b) Conform to Evidence FR 15(c) Relation back

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

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

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

SKILLS Arguing From Precedent Rule 15(c)(2) Hypothetical n n n Arguments using Moore and Bonerb? When are two claims sufficiently related? How does surprise factor in?

SKILLS Arguing From Precedent Reconciling & Distinguishing Cases n n Are Moore and Bonerb distinguishable? Do you agree with either?

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

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

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

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

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

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

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