1.26.11

Bring LOCAL rules Tomorrow!

Handouts-
#7 Answer/Answer-Counter/Answer-Cross
#8 Affirmative Defenses- Read; Reminds
Tips- A) for long names, use "Herein after referred to as...."
B) Do not confuse multiple incidents of your cause of action, with multiple causes of action. EX Breach of contract in multiple ways.
C) Numbering your complaint. EX page 138, if you number each paragraph in order, then if a cause is dropped there will be holes in numbering. Instead, use 1.1, 1.2, 1.3 & 2.1, 2.2, 2.3 etc. Makes finding sections easier.

Responding to the Complaint
Rule 12, CR 4(d)(2), RCW 4.28.100, RCW 4.16.170
In state court the parties are free to give each other more time to file pleadings. You can give other side an extension, but give deadline- 30 days, etc. Don't leave it open.
Extension to what?
-"answer" You can only file a true Answer.
-"respond" You can file for dismissal, etc. Always ask for an extension to RESPOND.
In Federal Court you must ask court permission for extension.

General Denial
"Defendant denies each and every allegation of plaintiff's complaint." -Not valid in WA
You must respond to each paragraph.

Specific Denial
How do you respond to allegations which you are not sure are true or false? It is ok to deny things that you don't absolutely know are true. BUT you must make a reasonable effort to find the answer.

Qualified Denial-
In instance when you must admit part, and deny part in SAME PARAGRAPH
List things you admit, "and denies all other allegations", do not name the things you deny (if you miss one of them, it is admitted).
EX "Defendant admits that there was an accident, but denies all other allegations."

Otherwise- ALWAYS name the paragraph(s) that you are denying.
EX "Admit paragraph 1, 2, 3. And deny paragraph 4, 5, 6."

Affirmative Defense
Powerful weapon in your answer.
The Big Four
1.The failure to state cause of action,
2. Comparative Negligence- plaintiff's harms are the fault of the plaintiff him/herself
3. Fault of another party, whether named or un-named
4. Failure to mitigate- the harms and damages were caused by the plaintiffs failure to take reasonable precautions to protect him/herself
-Affirmative Defenses- Can be listed anywhere in answer. Easiest to list at the end.

Tips for drafting the answer
-Make a copy! NEVER EVER EVER WRITE ON AN ORIGINAL (or let your lawyer touch an original). (originals will likely be used during trial)
-p171 NOT a form we should use as an example. Use one denial paragraph for each allegation paragraph.
-p172 #2 Add "...and on that basis denied"

Incorporation by Reference p138
How to respond to incorporated paragraphs- "In answer to Paragraph ... defendant admits, denies, and alleges to the same effect and in the same manner as admitted, denied, and alleged to those specific paragraphs previously in this answer."

Counterclaim, Crossclaim, Third Party Defendant CR 13

Contribution
The right of a person who has paid a debt to get back a fair share of the payment from another defendant who is responsible for the debt.
EX Plaintiff sues D1 and D2, and in cross claim between D1 and D2, D1 seeks to be reimbursed if P wins.

p 179 Counterclaim
Will be similar to allegation, same incident.
Must restate for Self Sufficiency (must "stand alone") Must be a complete complaint in and of itself.

Cross Claims
Indemnity- "the other defendant has a duty to fully reimburse me"
Usually business relationship
EX make contract on behalf of employer, or contractors with subcontractor, you may be sued but your employer should be ultimately responsible.

p 181 Cross Claim
Will be similar to allegation, same incident. Must also stand alone.
p182 paragraph 3 Contribution EX "should judgment be assessed against her..."

p 183 Third Party Complaint FRCP 14a/CR 14a
Everything is Different here.
Caption contains all three parties.
Allegations completely different (EX auto accident in which mechanic is brought in)

Challenging the Complaint CR 12
Rule 12b
1. Subject matter jurisdiction
2. Personal jurisdiction
3. Objection to venue
4. Insufficient process (summons incorrect)
5. Insufficient service of process
6. Failure to state a claim
7. Failure to join an indispensable party (CR 19)
CR 12a(1)- 20 days to file
If you don't object to them they are WAIVED (CR 12h)
What do these have in common?
a) 2,3,4,5- protect defendant
b) 1,2,3- wrong court
c) 1,6,7- Never waived. These can be raised at ANY TIME (jurisdiction cannot be conferred)