STEPPING UP & STEPPING OUT Keys to Effective Motions Practice and How to Draft Pleadings in a Civil Case

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1 STEPPING UP & STEPPING OUT Keys to Effective Motions Practice and How to Draft Pleadings in a Civil Case Rex P. Fennessey Mark B. Leadlove

2 How to Draft Pleadings in a Civil Case

3 What Are Pleadings? Missouri Supreme Court Rule Pleading Required There shall be a petition and an answer; and there shall be a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party petition, if a person who was not an original party is summoned under the provisions of Rule 52.11; and there shall be a third-party answer, if a third-party petition is served. A defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be pleaded. No other pleading shall be required except as ordered by the court.

4 What Are Pleadings? Federal Rule of Civil Procedure 7 (a) PLEADINGS. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.

5 What s In a Pleading? Missouri Supreme Court Rule Caption of Pleading - What Set Forth Every pleading shall contain a caption setting forth the name of the court, the title of the civil action, the file number and a designation as in Rule In the petition, the title of the civil action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

6 What s In a Pleading? Federal Rule of Civil Procedure 10 Rule 10. Form of Pleadings (a) CAPTION; NAMES OF PARTIES. Every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. (b) PARAGRAPHS; SEPARATE STATEMENTS. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence and each defense other than a denial must be stated in a separate count or defense.

7 What s In a Pleading? Federal Rule of Civil Procedure 9 Rule 9. Pleading Special Matters (b) FRAUD OR MISTAKE; CONDITIONS OF MIND. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. (c) CONDITIONS PRECEDENT. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity. (d) OFFICIAL DOCUMENT OR ACT. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done. (e) JUDGMENT. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it. (f) TIME AND PLACE. An allegation of time or place is material when testing the sufficiency of a pleading. (g) SPECIAL DAMAGES. If an item of special damage is claimed, it must be specifically stated.

8 What s In a Pleading? Missouri Supreme Court Rule 55.03(a) SIGNING OF PLEADINGS (a) Signature Required. Every pleading, motion and other filing shall be signed by at least one attorney of record in the attorney's individual name or by the selfrepresented party. An attorney who assists in the preparation of a pleading, motion, or other filing for an otherwise self-represented person is not required to sign the document. Every filing made electronically must add a certificate verifying that the attorney or party signed the original. The original signed filing must be maintained by the filer for a period of not less than the maximum allowable time to complete the appellate process. Below the signature shall be printed the signer's name, Missouri bar number (if applicable), address, telephone number, facsimile number, and electronic mail address, if any. An unsigned filing or an electronic filing without the required certification shall be stricken unless the omission is corrected promptly after being called to the attention of the attorney or party filing same.

9 What s In a Pleading? Missouri Supreme Court Rule 55.03(a) SIGNING OF PLEADINGS (b) Entry of Appearance of Counsel. An attorney who appears in a case shall be considered as representing the parties for whom the attorney appears for all purposes in that case, except as otherwise provided in a written entry of limited appearance. If an entry of limited appearance is filed, service shall be made as provided in Rule 43.01(b). An attorney appears in a case by: (1) Participating in any proceeding as counsel for any party unless limited by an entry of limited appearance; (2) Signing the attorney's name on any pleading, motion, or other filing; however, if an attorney is identified on a pleading, motion, or other filing as having only assisted in the preparation of the pleading, motion, or other filing, the attorney has not entered an appearance in the matter; or (3) Filing a written entry of appearance. A written entry of appearance may be limited by its terms to a particular proceeding or matter. If so limited, the written entry of appearance shall be titled "Entry of Limited Appearance" and shall state the physical and mailing addresses, telephone number, facsimile number, and electronic mail address, if any, of each person for whom the attorney is making a limited appearance.

10 What s In a Pleading? Missouri Supreme Court Rule 55.03(a) SIGNING OF PLEADINGS (c) Representation to the Court. By presenting and maintaining a claim, defense, request, demand, objection, contention, or argument in a pleading, motion, or other paper filed with or submitted to the court, an attorney or party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) The claim, defense, request, demand, objection, contention, or argument is not presented or maintained for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. An attorney providing drafting assistance may rely on the otherwise self-represented person's representation of facts, unless the attorney knows that such representations are false; and (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

11 What s In a Pleading? Federal Rule 11 Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions (a) SIGNATURE. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name or by a party personally if the party is unrepresented. The paper must state the signer's address, address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

12 What s In a Pleading? Federal Rule 11 (cont) Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions (b) REPRESENTATIONS TO THE COURT. By presenting to the court a pleading, written motion, or other paper whether by signing, filing, submitting, or later advocating it an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

13 What s In a Pleading? Federal Rule 11 (cont) Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions (b) REPRESENTATIONS TO THE COURT. By presenting to the court a pleading, written motion, or other paper whether by signing, filing, submitting, or later advocating it an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

14 Notice or Fact Pleading? United States Courts Notice Pleading Rule 8. General Rules of Pleading (a) CLAIM FOR RELIEF. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

15 Notice or Fact Pleading? United States Courts Notice Pleading Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests[.] Factual allegations must be enough to raise a right to relief above the speculative level Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007)

16 Notice or Fact Pleading? Missouri Courts Fact Pleading Pleading Setting Forth Claims for Relief Shall Contain What A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled. If a recovery of money be demanded, the amount shall be stated, except that in actions for damages based upon an alleged tort, no dollar amount shall be included in the demand except to determine the proper jurisdictional authority, but the prayer shall be for such damages as are fair and reasonable. A party may argue at trial that a specific amount of damages should be awarded even though the prayer is for a fair and reasonable amount. Relief in the alternative or of several different types may be demanded.

17 Notice or Fact Pleading? Missouri Courts Fact Pleading Missouri is a fact-pleading state. The overall purpose of fact pleading is to enable a person of common understanding to know what is intended. Though [t]he petition need not plead evidentiary or operative facts showing an entitlement to the relief sought, it must plead ultimate facts demonstrating such an entitlement. The petition cannot merely assert conclusions, and in determining whether a petition states a cause of action, we are to disregard conclusions not supported by facts.

18 Notice or Fact Pleading? Fact v. Notice Pleading ITT Commercial Finance Corp. v. Mid America Marine Supply Corp. 854 S.W.2d 371, 380 (Mo. banc 1993): Where the federal courts now use discovery to identify the facts upon which the plaintiff's claim rests, such has always been the role of pleadings in Missouri. Finally, where the federal courts rely on summary judgment procedures to dispose of baseless claims, such continues to be the role of motions to dismiss in Missouri.

19 Notice or Fact Pleading? The Pleading as a Blank Slate Tabula Rasa Facts Parties Agents Causes of Action INVESTIGATION

20 What to Plead? Starting Point is the Finish Line Missouri Approved Instructions

21 What to Plead? Starting Point is the Finish Line Eighth Circuit Model Jury Instructions

22 What to Plead? Two Important Goals 1)State a Cause of Action (Satisfy The Judge) 2)Be Persuasive (Persuade Your Audience)

23 What to Plead? Do It Right the First Time Planning Drafting Proofing Thinking Filing Serving

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25 EFFECTIVE MOTION PRACTICE Initial Considerations Mark B. Leadlove Bryan Cave LLP November 14, 2015

26 Preparation and Planning are Key Know your case Know the facts Know the law Know the forum judge Know the applicable rules Know the judge s preferences 26

27 What is a Motion? Missouri Rule Motions, Form Of 27

28 Missouri Rule Motions, Form of (a) Written Motion-When Required. An application to the court for an order shall be by motion which, unless made during a hearing or a trial, shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought. The requirement of a writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. 28

29 What is a Motion? Federal Rule of Civil Procedure 7. Pleadings Allowed; Form of Motions and Other Papers 29

30 Federal Rule of Civil Procedure 7. Pleadings Allowed; Form of Motions and Other Papers (b) Motions and Other Papers. (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. 30

31 HUMOROUS INTERLUDE What is a motion?

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33 Evidence in Support of Motions Missouri Rule Evidence on Motions 33

34 Missouri Rule Evidence on Motions When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. 34

35 Just a Written Motion, or a Motion and a Memorandum of Law? E.D. Mo. L.R Motions and Memoranda. 35

36 E.D. Mo. L.R Motions and Memoranda. (A) Unless otherwise directed by the Court, the moving party shall file with each motion a memorandum in support of the motion, including any relevant argument and citations to any authorities on which the party relies. If the motion requires consideration of facts not appearing in the record, the party shall also file all documentary evidence relied upon. 36

37 Just a Written Motion, or a Motion and a Memorandum of Law? Missouri Rule Summary Judgment. 37

38 Missouri Rule Summary Judgment (c) Motions and Proceedings Thereon. (1) Motions for Summary Judgment. A motion for summary judgment shall summarily state the legal basis for the motion. A statement of uncontroverted materials facts shall be attached to the motion. The statement shall state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts... * * * Attached to the statement shall be a copy of all discovery, exhibits or affidavits on which the motion relies. Movant shall file a separate legal memorandum explaining why summary judgment should be granted. 38

39 Types of Motions In Response to Lawsuit For Change of Venue For More Definite Statement To Dismiss 39

40 Is a Motion Appropriate? Legal Considerations Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted 40

41 Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted Missouri: A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of plaintiff s petition. It assumes that all of plaintiff s averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001) (citations omitted). 41

42 Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted Federal: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662;129 S. Ct (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). 42

43 Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted - Does the law support your position? - Tactical and Practical Considerations Win or Shape Lawsuit? Educate Judge or Opposition? Impact Case Momentum? Cost? 43

44 Motions in Response To Lawsuit - Waiver if Certain Issues/Defenses Not Raised Fed. R. Civ. P. 12 Missouri Rule of Civ. P

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46 Answers and Responsive Pleadings Facts Parties Agents Causes of Action Defenses

47 Answers and Responsive Pleadings Missouri Supreme Court Rule Defenses - Form of Denials If a responding party has knowledge or information sufficient to form a belief as to the truth of an averment, the party shall admit or deny the specific averment. If the responding party is without knowledge or information sufficient to form a belief as to the truth of a specific averment, the party shall so state, and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a party intends in good faith to deny only a part or a qualification of an averment, the party shall specify so much of it as is true and shall deny only the remainder. A party shall respond to all specific averments as provided in this Rule and shall not generally deny all the specific averments.

48 Answers and Responsive Affirmative Defenses Pleadings Missouri Supreme Court Rule In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances, including but not limited to accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, comparative fault, state of the art as provided by statute, seller in the stream of commerce as provided by statute, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, truth in defamation, waiver, and any other matter constituting an avoidance or affirmative defense. A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court may treat the pleadings as if there had been a proper designation.

49 Answers and Responsive Rule 8. General Rules of Pleading Pleadings Federal Rule 8 (b) DEFENSES; ADMISSIONS AND DENIALS. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading including the jurisdictional grounds may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation other than one relating to the amount of damages is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

50 Answers and Responsive Pleadings Federal Rule 8 Rule 8. General Rules of Pleading (c) AFFIRMATIVE DEFENSES. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.

51 Answers and Responsive Pleadings Affirmative Defenses Generally waived if not preserved. Failure to plead an affirmative defense results in waiver of that defense. AllStar Capital, Inc. v. Wade (App. E.D. 2011) 352 S.W.3d 633. Illegality due to statutory violations is an affirmative defense, which must be pled as an affirmative defense in order to be preserved. AllStar Capital, Inc. v. Wade (App. E.D. 2011) 352 S.W.3d 633. Borrower failed to plead affirmative defense of lender's illegality, and thus was barred from raising illegality as an argument on appeal. AllStar Capital, Inc. v. Wade (App. E.D. 2011) 352 S.W.3d 633. If a matter is not jurisdictional, but rather, is a procedural matter required by statute or rule or an affirmative defense as set forth inaffirmative defenses rule, then it generally may be waived if not raised timely. Reynolds v. Carter County (App. S.D. 2010) 323 S.W.3d 447. Evidence that sidewalk where pedestrian fell was public sidewalk did not have to be pleaded as affirmative defense to premises liability claim, as evidence merely negated element of property owner's duty to pedestrian, and argument that city had nondelegable duty to maintain sidewalk was not affirmative defense. Weil v. Rigali (App. E.D. 1998) 980 S.W.2d 89, rehearing and/or transfer denied. Settlor's petition for declaratory judgment that family trust had been properly revoked could not be denied on grounds of undue influence when settlor's son, as trustee, failed to plead affirmative defense of undue influence at any stage in proceedings and settlor did not impliedly consent to trying such defense. Holdener v. Fieser (App. E.D. 1998) 971 S.W.2d 946. Declaratory Judgment 322;

52 Answers and Responsive Pleadings Affirmative Defenses Generally waived if not preserved. Generally, failure to plead an affirmative defense results in a waiver of that defense. First Union Nat. Bank v. Pictet Overseas Trust Corp., 477 F.3d 616, 622 (8th Cir. 2007)(citing Fed.R.Civ.P. 8(c)) The Supreme Court has indicated that the Rule 8(c) pleading requirement is intended to give the opposing party both notice of the affirmative defense and an opportunity to rebut it. Id. Although the Rule does not expressly list failure to mitigate damages, we have held that this affirmative defense falls within the general requirement of Rule 8(c)(1), the list of enumerated defenses is exemplary rather than exclusive, and the failure to plead this particular affirmative defense results in waiver[.] Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798, (8th Cir. 2013)

53 Answers and Responsive Counterclaim and Cross-Claim Pleadings Missouri Supreme Court Rule (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim that at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if: (1) At the time the action was commenced the claim was the subject of another pending action; (2) The opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 55.32; or (3) The opposing party brought suit for the purpose of obtaining court approval of a settlement when such approval is required by statute. (b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. (c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. (d) Counterclaim Maturing or Acquired After Pleading. A claim that either matured or was acquired by the pleader after serving the pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

54 Answers and Responsive Counterclaim and Cross-Claim Pleadings Missouri Supreme Court Rule (e) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect or when justice requires, the counterclaim may be set up by amendment by leave of court. (f) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (g) Joinder of Additional Parties. Parties other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules and (h) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule judgment on a counter-claim or cross-claim may be rendered even if the claims of the opposing party have been dismissed or otherwise disposed of.

55 Answers and Responsive Pleadings Federal Rule of Civil Procedure 13 Rule 13. Counterclaim and Crossclaim (a) COMPULSORY COUNTERCLAIM. (1) In General. A pleading must state as a counterclaim any claim that at the time of its service the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. (2) Exceptions. The pleader need not state the claim if: (A) when the action was commenced, the claim was the subject of another pending action; or (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule. (b) PERMISSIVE COUNTERCLAIM. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. (c) RELIEF SOUGHT IN A COUNTERCLAIM. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party. (e) COUNTERCLAIM MATURING OR ACQUIRED AFTER PLEADING. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. (g) CROSSCLAIM AGAINST A COPARTY. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. (h) JOINING ADDITIONAL PARTIES. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.

56 Answers and Responsive Pleadings Federal Rule of Civil Procedure 14 Rule 14. Third-Party Practice (a) WHEN A DEFENDING PARTY MAY BRING IN A THIRD PARTY. (1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer. (2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint the third-party defendant : (A) must assert any defense against the third-party plaintiff's claim under Rule 12; (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g); (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. (3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g). (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately. (5) Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it. (b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

57 EFFECTIVE MOTION PRACTICE Additional Considerations Mark B. Leadlove Bryan Cave LLP November 14, 2015

58 Types of Motions For Summary Judgment To Compel Discovery Responses For Temporary Restraining Order For Relief from Standard Court Rules To Strike For Sanctions 58

59 HUMOROUS INTERLUDE Trial Motions

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61 Is a Motion Appropriate? Practical Considerations Legal Considerations Motion to Compel Discovery 61

62 HUMOROUS INTERLUDE Is this motion necessary?

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64 Motion for Summary Judgment Missouri: Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Summary judgment can be entered in the defendant's favor where there are no genuine disputes as to the existence of each of the facts necessary to support one of the defendant's properly pleaded affirmative defenses. Purcell v. Cape Girardeau County Comm n, 2010 Mo. LEXIS 125 (April 6, 2010) (citations omitted). 64

65 Motion for Summary Judgment Federal: Summary judgment shall be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party has the burden of setting forth specific facts showing a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). 65

66 Motion for Summary Judgment Tactical and Practical Considerations Win or Shape Trial? Educate? Impact of Losing Motion? Impact of Claiming No Issue of Material Fact? Fed. R. Civ. P. 56(g) fact established for case Cost? 66

67 WRITE AN EFFECTIVE MOTION/MEMORANDUM OF LAW Become a Good Legal Writer!

68 Tips for Good Legal Writing: Be an Advocate, Not an Academic Be Organized 68

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71 Tips for Good Legal Writing: Legal Standard Applicable Be Concise Use Active Voice Use Simple Sentence Structure Limit Paragraph Size 71

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73 Tips for Good Legal Writing: Use Professional Tone Be Error-free and Neat Choose Language Carefully Consider Using Visuals 73

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76 Tips for Good Legal Writing: Do Not Repeat 76

77 Present a Compelling Oral Argument A concise outline Outline your argument for the judge Ensure argument follows roadmap Know the facts/know the law Determine if applicable legal standard needs to be argued Use a professional tone Use visual aids and technology when appropriate 77

78 HUMOROUS INTERLUDE

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80 QUESTIONS?

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82 QUESTIONS? No information contained in this outline should be relied upon by you as legal advice. An attorney s answer to a question depends on many facts, and the facts of each case are different. If you encounter a situation where you believe you need legal advice, contact an attorney and relay the facts of your case to him or her.