Showing posts with label Federal Rules of Civil Procedure. Show all posts
Showing posts with label Federal Rules of Civil Procedure. Show all posts
Friday, July 18, 2014
Monday, April 29, 2013
Answers to civil complaints in United States District Court
Answers to civil complaints in United States District Court
are the topic of this blog post. Rule 12
of the Federal Rules of Civil Procedure specifies the time period that a
defendant has to answer or otherwise respond, that time period is 21 calendar
days after being served with the summons and complaint, unless a party has
waived service under Rule 4(d) or other exceptions apply which are listed in
Rule 12.
Any party served with a complaint should carefully review
the complaint and each claim for relief that is asserted in the complaint. This
is important as a complaint that does not state a claim for relief is subject
to a motion to dismiss under Rule 12(b)(6) on the grounds that the complaint
does not state sufficient facts to constitute a claim for relief.
The general practice is for a defendant to deny each statement
in the complaint that is untrue and admit each statement that is true. See Rule
8 (b) of the Federal Rules of Civil Procedure.
If a defendant does not have sufficient information either to admit or
deny a statement in the complaint, a statement may be used such as “Defendant
has no information or belief that the allegations of paragraph __ are true so
defendant denies them.”
Note that any allegations of the complaint that are not
specifically denied are deemed admitted.
In addition to admitting or denying the allegations in the
complaint, defendant should include in their answer any legal defenses they may
have. See Rule 8(c) of the Federal Rules of Civil Procedure. A legal defense is
one in which, even assuming that all plaintiff’s allegations in the complaint were true, the law does not permit
the plaintiff to win the case. Defendant
should be careful in deciding whether to raise a defense as Rule 12(b)
of the Federal Rules of Civil Procedure states that certain defenses may be
waived if they are not raised in the answer or a pre-answer motion.
In other words, if a defendant fails to raise a legal
defense in their answer, they may not be able to raise it later in the case.
Defendant should also state enough facts for each legal defense. If they fail
to do so a plaintiff may file a motion to strike the defense under Rule 12(f)
on the grounds of an insufficient defense, or an immaterial allegation.
Attorneys or parties in who would like to view a sample
answer to a civil complaint in United States District Court sold by the author
can see below.
The author of this blog post, Stan Burman, is a freelance
paralegal who has worked in California and Federal litigation since 1995.
If you enjoy this blog post, tell others about it. They can
subscribe to the author's weekly California and Federal legal newsletter by visiting the
following link: http://www.legaldocspro.net/newsletter.htm
To view all of the sample legal documents for use in
California and Federal Courts sold by the author of this blog post visit
http://www.scribd.com/legaldocspro/documents
Copyright 2013 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman
is NOT an attorney and as such is unable to provide any specific legal advice. The author is
NOT engaged in providing any legal, financial, or other professional services, and any
information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post
have been prepared by Stan Burman for informational purposes only and are not legal advice.
Transmission of the information contained in this blog post is not intended to create, and
receipt does not constitute, any business relationship between the author and any readers. Readers
should not act upon this information without seeking professional counsel.
Wednesday, April 4, 2012
Opposing a motion to dismiss under Rule 12(b)(6)
Opposing a motion to dismiss under Rule 12(b)(6) in United States District Court is the topic of this blog post.
A Motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure as used in the Federal Courts is analogous to a general demurrer as is used in California Courts. The motion seeks to have a Complaint dismissed on the grounds that it fails to state facts sufficient to constitute a cause or causes of action. The motion to dismiss can also be used in Bankruptcy Court litigation as well.
While motions to dismiss under Rule 12(b)(6) are often filed they are rarely successful as numerous Appellate Courts have ruled that a motion to dismiss under Rule 12(b)(6) is disfavored and is rarely granted.
A motion to dismiss under Rule 12(b)(6) is disfavored and rarely granted. Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986) ("It is axiomatic that '[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'") (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1357, at 598.
The issue is not whether the plaintiff will prevail or not. The issue is whether the plaintiff is entitled to offer evidence in support of their claims.
The U.S. Supreme Court has stated: "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely, but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Rather, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
"In reviewing the allegations, this Court construes the complaint in a light most favorable to the plaintiff, accepting all of the factual allegations as true and determines whether the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir. 2004).
Even a cause of action for fraud which must be specifically pleaded satisfies the particularity requirement for fraud if it identifies circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations. Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir.1987).
And Courts rarely grant a dismissal of a complaint without leave to amend.
"Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Schneider v. California DOC, 151 F.3d 1194, 1196 (9th Cir. 1998).
"Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim." Wright and Miller, Federal Practice and Procedure, vol 5A, 1357.
Attorneys or parties who wish to view a portion of a sample opposition to a motion to dismiss for sale by the author please use the link shown below.
http://www.scribd.com/doc/25605615/Sample-Opposition-to-Motion-to-Dismiss-under-Rule-12-b-6
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm
A Motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure as used in the Federal Courts is analogous to a general demurrer as is used in California Courts. The motion seeks to have a Complaint dismissed on the grounds that it fails to state facts sufficient to constitute a cause or causes of action. The motion to dismiss can also be used in Bankruptcy Court litigation as well.
While motions to dismiss under Rule 12(b)(6) are often filed they are rarely successful as numerous Appellate Courts have ruled that a motion to dismiss under Rule 12(b)(6) is disfavored and is rarely granted.
A motion to dismiss under Rule 12(b)(6) is disfavored and rarely granted. Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986) ("It is axiomatic that '[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'") (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1357, at 598.
The issue is not whether the plaintiff will prevail or not. The issue is whether the plaintiff is entitled to offer evidence in support of their claims.
The U.S. Supreme Court has stated: "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely, but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Rather, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
"In reviewing the allegations, this Court construes the complaint in a light most favorable to the plaintiff, accepting all of the factual allegations as true and determines whether the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir. 2004).
Even a cause of action for fraud which must be specifically pleaded satisfies the particularity requirement for fraud if it identifies circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations. Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir.1987).
And Courts rarely grant a dismissal of a complaint without leave to amend.
"Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Schneider v. California DOC, 151 F.3d 1194, 1196 (9th Cir. 1998).
"Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim." Wright and Miller, Federal Practice and Procedure, vol 5A, 1357.
Attorneys or parties who wish to view a portion of a sample opposition to a motion to dismiss for sale by the author please use the link shown below.
http://www.scribd.com/doc/25605615/Sample-Opposition-to-Motion-to-Dismiss-under-Rule-12-b-6
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm
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