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Pleadings and Motions Attacking Pleadings

    Civil litigation begins with the pleadings. A pleading is a legal document filed with the court that sets forth the position and contentions of a party. The purpose of pleadings in civil actions is to define the issues of the lawsuits. This is accomplished by each pary making allegations of fact and the other party either admitting the allegatons or denying them.

    The first of the pleadings is usually called a complaint. A complaint is a written statement which sets forth the plaintiff’s allegations against the defendant. To be legally sufficient, a complaint must contain one or more “causes of action”, that is, one or more sets of facts or allegations that make up the legal grounds for filing a lawsuit, such as “breach of contract” or “fraud”. Besides, a complaint must state the plaintiff’s claim, i.e., what relief he is seeking to obtain.

    After the plaintiff files with the clerk of the court his complaint, the clerk issues a summons, which, together with a copy of the complaint, is served on the defendant. The summons directs the defendant to appear and defend under penalty of default, and notifies him of the date by which he is required to file his response. Service of summons may be effected by the plaintiff or a court official, and must be of a kind reasonably calculated to bring the action to the defendant’s notice. In cases where the defendant in order to gie him notice of the suit.

    Following the service of the plaintiff’s complaint, the defendant must respond. If he has no basis to attack the sufficiency of the complaint, he may simply file an entry of appearance, which means that he admits the truth of all allegations in the complaint. In most cases, however, the defendant will file an answer either admitting or denying each material allegation of the complaint. The answer will put in issue the allegations of the complaint that are denied. In addition to admissions and denials, the defendant may also make affirmative defenses and counterclaims in the answer. An affirmative defense is an excuse or the assertion of some extenuating circumstances. A counterclaim asks for relief or damages from the plaintiff or sometimes from others. The counterclaim is in essence a complaint by the defendant, and the plaintiff will have to respond to it.

    Upon receipt of the defendant’s answer, the plaintiff will, unless the applicable rules of procedure do not so require, file a reply that specifically admits or denies each new allegation in the defendant’s answer. Thus the allegations of each party are admitted or denied in the pleadings. Allegations of fact claimed by either party and denied by the other become the issues to be decided at the trial.

    A defendant who files no answer to the complaint is in default, and a court may assume that he has admitted the allegation of the plaintiff and enter a default judgment against him.

    Instead of admitting or denying the allegations of the complaint, the defendant may choose to challenge the complaint by a moton to dismiss. A motion to dismiss is the defendant’s request for the judge to dismiss the case. It asserts that even if all the allegations made by the plaintiff in the complaint are true, the plaintiff is not entitled to any legal relief and thus the case should be dismissed. The motion may challenge the court’s jurisdiction over the subject matter or over the person of the defendant, the service of process, or venue. It may also be a motion to dismiss which challenges the legal sufficiency of the complaint. In the letter case, the defendant, for purpose of argument, accepts the facts alleged in the complaint but denies that they are legally sufficient to sustain the claims of plaintiff.

    If the motion to dismiss is denied, the defendant will then be granted time to answer the complaint. If the court allows the motion and dismisses the suit because the complaint is legally insufficient, the plaintiff will be given per mission to file an amended complaint.

小雪

博主小雪出沒於魔都,目前工作是後端程序員,喜歡旅遊,特別是文化歷史遺跡和博物館,一生所愛日本彩虹樂隊 ( L'Arc-en-Ciel) ,家有橘貓朵朵一隻。

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