Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Legal Terminology Fifth Edition by Gordon W. Brown PowerPoints prepared by Kimberly Lundy

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Chapter 4 Defensive Pleadings in Civil Trials

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Defensive Pleadings  Defendant must file one or more defensive pleadings upon service of the summons and complaint.  Must be filed within given number of days or defendant loses by default.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Demurrer  Demurrer – pleading used to attack plaintiff’s complaint by raising a point of law so that even if plaintiff’s allegations are true, no cause of action exists.  Used at common law (and in some states today).

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Grounds for Demurrer  Failure to state facts sufficient to constitute a cause of action.  Lack of subject matter jurisdiction.  Plaintiff lacks capacity to sue.  Another action pending between the same parties for same cause.  Defect or misjoinder of parties.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Actions on Demurrer The court holds a hearing and either:  Sustains (upholds) the demurrer Case ends by nonsuit (termination of action without adjudication on the merits) unless court allows plaintiff to amend complaint; or  Overrules (annuls, makes void) demurrer defendant is given an opportunity to answer.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Motions  Motion A written or oral request made to the court seeking action to be taken. Any party to a suit can make a motion.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Defensive motions  Some important defensive motions: Motion to dismiss Motion for a more definite statement Motion to strike Motion for judgment on pleadings Motion for summary judgment

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Motion to Dismiss  Motions to dismiss seek an order disposing of the case without a trial. Dismissal without prejudice – plaintiff may correct error and bring another action on the same claim. Dismissal with prejudice – plaintiff barred from bringing another action.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Grounds for Motion to Dismiss  Grounds for motion to dismiss include: Lack of jurisdiction of subject matter Lack of jurisdiction over person Improper venue Insufficiency of process Insufficiency of service Failure to state a claim on which relief can be granted Failure to join a necessary party Misnomer (mistake in name) of party Pendency of prior action in court of the same state

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Other Motions  Motion for a more definite statement Used when pleading is so vague other party cannot respond to it.  Motion to strike Used by either side to remove from a pleading insufficient defense or any redundant, immaterial, impertinent or scandalous matter.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Other Motions  Motion for a judgment on the pleadings made by either side after complaint and answer have been filed alleging either: Plaintiff’s complaint does not state a claim on which relief can be granted; or Defendant’s answer does not set forth a legally sufficient defense.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Other Motions  Motion for summary judgment Used when papers filed show lack of genuine issue of fact and that motioning party will win as matter of law.  Summary judgment An immediate decision by the court based on papers filed without a trial.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Answer  Answer – a short and plain statement of defenses. If motion to dismiss is not granted, defendant must file answer within a prescribed period after service of process. Failure to answer results in default judgment (judgment entered on failure of party to appear or plead).

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Affirmative Defenses  Affirmative defense – some reason that will stop plaintiff from winning case even if defendant has done the act for which they are being sued. Called a confession and avoidance at common law.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Counterclaim and Reply  Counterclaim – when the defendant brings suit against plaintiff.  Reply – plaintiff responds to the counterclaim by filing an answer (reply) to the counterclaim.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ All Rights Reserved. Cross Claim  Cross claim – a claim brought by one defendant against another.  Cross complaint – pleading sometimes used in place of counterclaim and cross claim.