ch 5 the complaint

Corporations and Other Business Entities

- A corporation is a "person" for legal purposes, including lawsuits. As such it has capacity to sue or be sued in the corporate name. In fact, if a corporation is a plaintiff or a defendant in a lawsuit, it must be identified by the corporate name rather than the name of the directors, officers, or shareholders. Exceptions do occur, however, in the case of corporate defendants. If the corporation fails to act like a corporation—not keeping corporate minutes, not holding meetings, failing to keep corporate assets separate from personal assets, and so on—then the individuals behind the corporation can be sued individually. This is known as piercing the corporate veil. The directors, officers, or shareholders of a corporation will also be named individually as defendants if they have personally done something wrong. - Business entities other than corporations may be treated differently. An unincorporated association, such as a partnership, does not have legal existence separate and apart from the partners. It is proper, therefore, for such an organization to sue and be sued in the name of its individual members. Some jurisdictions allow a partnership to be sued either in the names of the individual partners or in the partnership name. Suing a partnership in the partnership name alone is not always a wise choice, however, because state laws may adversely affect the plaintiff's ability to collect any judgment. In a general partnership, the individual partners are personally liable for partnership debts. However, if the individual partners are not named in the complaint, state law may limit collection of any judgment to partnership assets, protecting the non-partnership assets of the individual partners. When suing a partnership or other unincorporated business entity, it is common to list both the partners' names and the business name, as in the following example:

Interpleader

- A special type of action or complaint, known as interpleader, also involves questions of joinder of parties. Interpleader refers to a type of action in which several different parties claim ownership to a fund or property that is in the control of another. - EXAMPLE: An insurance company provides liability coverage to an airline with a policy limit of 1 billion . A plane crashes, and the heirs of the victims file claims with the airline and the insurance company in excess of 10 billion. Liability is clear, and the insurance company determines at the outset that it will have to pay the policy limits. - In this situation, even though the insurance company acknowledges that it will have to pay the insurance policy limits, the question of how the insurance proceeds are to be distributed remains. The insurance company does not want to unilaterally make this decision because it could be sued if the claimants did not agree with the distribution. The appropriate action, therefore, is for the insurance company to ask the court to decide how the funds should be disbursed. This is accomplished by filing an action in interpleader with the court, naming all of the claimants as defendants. The insurance company can then deposit the policy limits with the court and withdraw from the action, leaving the claimants to fight over the money.

Provisional Remedies

- A substantial time often elapses between the filing of a complaint and the actual trial in a case. Therefore, when injunctive relief is the primary object of a lawsuit, the plaintiff frequently requests some provisional remedy from the court as soon as a complaint is filed. Provisional remedies include a temporary restraining order and a preliminary injunction. A temporary restraining order (TRO) usually compels the defendant to stop certain conduct immediately. These are granted without any formal hearing, based primarily on affidavits or declarations (written statements under penalty of perjury) submitted to the court. Because the courts are hesitant to grant any orders without giving all sides the opportunity for a full hearing, TROs remain in effect for a very short time, usually until a hearing can be scheduled in court. As soon as possible, then, a hearing is scheduled at which both sides have the opportunity to argue for or against the restraining order remaining in effect until the time of trial. This hearing is not a full trial of all the issues. Should the court decide to keep the restraining order in effect, it will issue a preliminary injunction, an order that remains in effect until the trial, at which time the injunction would become permanent if the plaintiff proves his case. In federal courts, TROs and preliminary injunctions are governed by Rule 65 of the Federal Rules of Civil Procedure. The procedures that a party must follow to obtain these provisional remedies are similar to the procedures followed in motion practice

The Nature and Purpose of Pleadings

- After completing the preliminary investigation, interviews, and research, the attorney determines whether to pursue the case. If the decision is made to proceed, the litigation process formally begins and each party files pleadings in court. Pleadings are the various documents filed in a court proceeding that define the nature of the dispute between the parties. Not all documents filed with the court are pleadings. The term pleading technically refers only to papers that contain statements, or allegation, describing the contentions and defenses of the parties to the lawsuit. - Unless a defendant defaults, both the plaintiff and the defendant file pleadings with the court: The plaintiff files the first pleading, a complaint (or sometimes a petition), stating the basis for the lawsuit. The defendant files an answer (or sometimes a response), responding to the complaint. If appropriate, the defendant also files related claims against the plaintiff, other defendants, or third parties. If necessary, the plaintiff, codefendants, or third parties reply or respond to a defendant's claims. - All of these documents contain either contentions or defenses of the parties. The pleadings set the framework for all of the steps and proceedings that follow. If an issue is not raised in the pleadings, the parties may be prevented from bringing it up at trial. Although pleadings relate to contentions of the parties, these documents are always prepared by the law firm representing the party. As a paralegal in a litigation firm, one of your duties might include drafting these documents. You might also be asked to review pleadings prepared by the opposing side. - The content and format of the various pleadings are largely controlled by the appropriate statutory law or rules of court. Cases filed in federal court are governed primarily by the Federal Rules of Civil Procedure. Cases filed in a state court are governed by the laws of the state. In addition to state rules, many county or area courts have their own individual rules, known as local rules of court. Within the federal court system, various district courts also have local rules. Local rules can differ from one court to another, even if the courts are located in the same state. Before preparing or filing any pleading, therefore, you must check all local rules. In spite of the numerous technical rules that govern pleadings, most courts take a liberal attitude in reviewing or judging the sufficiency of the documents. Courts usually prefer that the parties resolve their disputes on the merits of the case rather than on some technical rule regarding the format of a document.

The Prayer

- After the allegations in the complaint you find the prayer. The prayer is normally located at the end of all of the allegations. Even though the allegations in the complaint state that the plaintiff has incurred damages and is entitled to some relief, a specific request for these damages is made in the prayer. This is the part of the complaint in which the plaintiff asks the court for damages or other relief. It often begins with the words, "Wherefore, plaintiff prays as follows." When a complaint contains several causes of action, attorneys often include a request for damages for each of the causes of action. For example, the prayer might start, "Wherefore on the first cause of action plaintiff prays as follows." A separate prayer is then included for each cause of action.

Filing the Complaint

- After the complaint has been prepared, reviewed by the attorney, and properly signed, it can be filed in the proper court. Filing of a complaint means that the document is given to the court. The court, in turn, assigns a number, known as a docket number, to the case and starts a file that will contain all subsequent pleadings and other documents dealing with the case. All subsequent pleadings and papers filed in connection with the case must contain the docket number to ensure proper filing. When filing a complaint, the court usually requires a filing fee, which must be paid before the court will accept the document. Filing fees will be waived if the plaintiff can show financial hardship. Whenever you file a complaint with the court, you should retain copies of the complaint on which the docket number and date of filing are noted (usually two or three copies). - The traditional manner of filing complaints (as well as other pleadings and motions) involves delivery of the paper documents to the court. Delivery is made by the attorney or a member of his or her staff, by mail or, if the court allows, by fax. Today, many courts have procedures to allow for electronic filing; that is, delivery of the documents in electronic format through the Internet. Electronic filing is becoming common and in some courts even required. A litigation paralegal needs to be familiar with the process.

Pleading on Information and Belief

- All statements contained in a complaint, or any pleading, should be true. However, at times a plaintiff is not certain about some facts that must be alleged in the complaint. For example, the plaintiff may not know for sure if the defendant business is a corporation or some other business entity, although the plaintiff believes that it is incorporated. In such cases, the proper way to plead the facts is on information and belief. These allegations are made on information and belief.

Disclosure Statement by Nongovernmental Corporate Party

- Also, if any plaintiff is a nongovernmental corporation, it must file a special disclosure statement required by Rule 7.1 of the Federal Rules of Civil Procedure. This statement identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that there is no such corporation. This disclosure statement is required to be filed by all nongovernmental parties at the time they file their first documents in court. Thus, if the defendant is a corporation, it must file a disclosure statement with its answer.

Verifications

- Also, in some jurisdictions certain complaints, such as those seeking injunctive relief or punitive damages, often are required to be verified, or sworn to, under penalty of perjury. This is usually done by the plaintiff rather than by the attorney.

Pleading the Cause of Action

- Although the complaint or petition usually follows legal technicalities, it is primarily a document that shows the factual basis for the lawsuit. It does not contain any discussion or analysis of legal theories. However, when reviewing the facts that are alleged in the complaint, the defendant's attorney and the court should be able to see a legal basis for the lawsuit, even though the legal basis need not be expressly stated. How detailed this factual description must be depends on the jurisdiction in which the lawsuit is filed. - In some jurisdictions the complaint must contain factual allegations or statements that support each element of the cause of action. Because this method of pleading is based on a New York law known as the "Field Code," these jurisdictions are sometimes known as code pleading jurisdictions. Other jurisdictions, including the federal courts, have a less stringent requirement. For most types of cases, the complaint must contain sufficient facts to put the defendant on notice as to why he is being sued, but it is not essential that each element of the cause of action be supported by factual allegations. This method of pleading is known as notice pleading. - Even in notice pleading jurisdictions, some types of cases demand more detailed facts within the complaint. Rule 9 of the Federal Rules of Civil Procedure, for example, requires that allegations of fraud or mistake be stated with particularity. Furthermore, even though the Federal Rules allow fairly general and nonspecific pleading, more particular allegations are allowed. The use of more detailed allegations in a complaint may affect later discovery and disclosure rights and obligations and should be carefully considered. - Although differences exist in the technical requirements between code pleading jurisdictions and notice pleading jurisdictions, a complaint that is sufficient under code pleading rules is generally sufficient under notice pleading rules. The important thing to remember is that both types of pleading require that facts, and not legal theories, be alleged. - The Federal Rules of Civil Procedure contain an Appendix of Forms, including several that can be used as a basis for various causes of action (see Exhibit 5-4). Remember, however, that these forms would be only a part of a complaint. For a complete document you would add a caption, the proper language showing jurisdiction, appropriate paragraphs showing status and capacity of the parties, as well as venue and any other relevant allegations. (Although the Federal Rules do not require that status and capacity be specifically stated, they often are.)

The Caption

- As mentioned, the first part of any complaint or petition is known as the caption. The caption contains the name of the court in which the action is filed, the names of the plaintiffs and defendants, and the title of the document. In some jurisdictions, it also contains the name, address, and telephone number of the attorney and the client being represented. In other jurisdictions, the caption also contains the addresses of the plaintiff and defendant.

The Summons

- At the time the complaint is filed, the court issues a summons. A summons is a form explaining that the defendant has been sued and should answer the complaint by a certain date. Issuance of the summons occurs when the clerk of the court affixes his or her signature to the form. It is expected that the attorney for the plaintiff will have the form filled out and will submit it to the clerk when the complaint is filed. The original summons is not filed with the court at this time; the plaintiff retains it until after the defendants have been served. At that time the original summons can be returned to the court for filing, along with evidence that the defendants have been served. In some courts, if the summons is not returned to the court within a certain time, the case can be dismissed.

Class Actions

- At times the number of potential plaintiffs in an action becomes too numerous to be practical. When this happens, a class action can result. Class actions present complex questions for the attorneys and for the court. - A class action occurs when one or more parties who share a claim with a multitude of others file a lawsuit in their own names and also claim to represent numerous others in a similar situation. The claim must be based on similar issues. To maintain a class action, the party filing the lawsuit must first ask the court to certify the case as a class action. Unless the court grants such an order, the case does not proceed. After the court certifies the action as a class action it determines how members of the class should receive notice. Rule 23 mandates that this notice must be the "best notice that is practical." Generally the court also orders that all class members who can be identified should get individual notice. The federal judiciary provides sample forms for the notices that should be served. These can be viewed on the Web site for the federal judiciary at <www.fjc.gov> (link to "Class Action Notices Page" for sample forms). - Complying with the notice requirements can be an overwhelming and expensive task. If your firm is involved in a class action, as a litigation paralegal you may be asked to take responsibility for this part of the litigation. Included in the notice to all potential members of the class is usually an explanation that any potential class member can request in writing that he or she be excluded from the class. If a member does not request exclusion, that class member will be bound by any judgment in the case. - Class actions permit cases to be brought when the amount of damages suffered by each plaintiff is minimal but the total damages suffered by all is substantial. In such a case it is not practical for parties to maintain their own individual lawsuits. The cost of litigation would outweigh any benefit. By joining together, the class of injured parties is able to minimize expenses and justify the litigation. - Every jurisdiction has its own rules, found in statutes and cases, regarding class action lawsuits. These rules usually deal with such matters as who can file, who is entitled to notice of the action, how that notice is to be given, and who must bear the cost of notice. Rule 23 of the Federal Rules of Civil Procedure governs class actions in federal court. Rule 23 allows a class action when all the following conditions are met: - the class is so numerous that joinder of all members is impracticable, - there are questions of law or fact common to the class, - the claims or defenses of the representative parties are typical of the claims or defenses of the class, and - the representative parties will fairly and adequately protect the interests of the class. - Rule 23 also requires one of the following for maintaining a class action: individual lawsuits might produce the possibility of inconsistent decisions or the decision in one case might unfairly prejudice another case or the party opposing the class has acted in a way that is generally applicable to all members of the class or common questions of law or fact predominate over individual questions of law or fact. - In recent years, the Supreme Court has placed limits on the ability of plaintiffs to bring class action lawsuits. Additional information about class action lawsuits can be found on the Web site for the federal judicial center (<www.fjc.gov>). By reviewing the publications and searching by subject for class action litigation you find several manuals and articles related to this subject.

The Causes of Action

- Below the caption is the body of the complaint, containing various jurisdictional and factual allegations that constitute the plaintiff's cause of action. These allegations are broken down into short, numbered paragraphs. As there is no absolute method for paragraphing, the use of form books or other sample complaints is very helpful in setting up this part of the complaint. In the absence of a form to follow, you can use normal paragraphing rules. - Even though there is no mandatory order in which paragraphing must be done, there are typically employed conventions: 1. In most cases you will see paragraphs on jurisdiction and venue first. 2. If any of the parties are businesses, either corporate or otherwise, allegations concerning their status or capacity then follow. 3. If there is more than one defendant in the lawsuit, it is standard to include an agency allegation. An agency allegation claims that one or more of the defendants were agents or employees of one or more of the other defendants and acting within the scope of that agency. Such an allegation refers to the substantive legal principle of vicarious liability or respondent superior, a concept that imposes liability on an employer for certain acts of its employees. 4. Following these standard allegations are various allegations describing the factual basis for the lawsuit and a description of the damages suffered.

Request for Damages or Other Relief

- Every complaint or petition filed in an action contains a demand for relief from the court, often called a prayer. Courts have the power to grant two different types of relief, money damages and equitable relief. Money damages are the award of money to the plaintiff as compensation for some loss. Equitable relief, in contrast, involves the court's ordering the defendant to do something or to stop doing something other than simply paying money damages. In some state jurisdictions, only certain courts have the power to grant equitable relief. Before preparing and filing any complaint requesting this type of relief, be sure to check jurisdictional power of the court.

The Subscription

- Following the prayer is the date, signature, and address (including e-mail address and telephone number) of the attorney filing the complaint. Some jurisdictions also require that the attorney include a state bar number. This signature is called the subscription. In some jurisdictions the name, address, and telephone number of the attorney appear on the first page above the caption rather than at the end of the complaint. A signature or subscription is still required at the end of the prayer. Under Rule 11 of the Federal Rules of Civil Procedure, when an attorney signs a pleading in federal court, that attorney is making certain representations to the court. She is representing that the pleading is not being used for any improper purpose, that the contentions are warranted by law, and that the allegations have evidentiary support. If the court finds these representations to be false, it has the power to sanction the attorney.

The Elements and Format of a Complaint

- Generally, to start court proceedings, a plaintiff prepares and files a complaint, or a petition. In the complaint the plaintiff states the basis for the lawsuit. The complaint does the following: 1. identifies the plaintiffs and defendants in the lawsuit, and describes their status and capacity to sue and be sued, 2. contains a statement showing that the court in which it is filed has proper jurisdiction and venue, 3. describes the factual basis for the lawsuit, and 4. requests or demands some relief from the court. - The complaint itself usually follows a set format with the following parts: 1. The caption—the part of the complaint that identifies the court in which the complaint is filed, the names of the plaintiffs and defendants, and the title of the document. 2. The allegations (or cause of action)—a description of the parties, statements showing proper jurisdiction and venue, the factual basis for the lawsuit, and a description of the loss or damages incurred. 3. The prayer or "wherefore" clause—a request for some relief or remedy from the court. 4. The subscription—the signature of the attorney filing the document and the date. The subscription also includes the address and e-mail address of the attorney. - Some complaints also contain a verification (verify), which is a statement signed under penalty of perjury by the plaintiff that the contents of the complaint are true. A verification is required for certain kinds of complaints. - Many complaints are much more involved than the one shown in Exhibit 5-1. For example, there may be multiple plaintiffs and defendants, and these parties may be individuals or business entities, possibly using a fictitious name. Some complaints contain several causes of action based on complicated factual situations. Before you begin to draft any complaint you should analyze your case, determine the purpose of your pleading, and outline the general content of your document. Specifically you should know: - who will be named as parties and how they will be named, - how you will show that jurisdiction and venue are proper, - the type of claims or causes of action that will be included in the complaint, and - the type of relief you are demanding. - Only after you have done this preliminary analysis should you begin to actually draft the complaint.

The Request for a Jury

- In federal court and in some state courts, if the plaintiff is requesting a jury trial in the case, that request is often included in the complaint. In federal courts, under Rule 38(b) of the Federal Rules of Civil Procedure, such a demand must be made no later than 14 days after service of the last pleading.

State Courts

- Like the federal courts, many state courts have implemented procedures for e-filing. State courts, however, do not use the federal CM/ECF system; each state has its own rules and procedures. For e-filing in state courts, some attorneys choose to use the services of third parties who handle the technical aspects of the process. To see links to state court rules on e-filing go to <http://www.americanbar.org/aba.html> and search for "electronic filing." - Even if you file documents electronically through the Internet, check local rules to find whether you also are required to send a paper "courtesy copy" of the document to the judge assigned to the case. Many courts require this.

Parties Using Fictitious Names

- Many businesses do not use their true names in the operation of their businesses. Individuals, either operating alone or with others, often choose to do business under a name that has more business appeal than their real names. At times, even corporations do business under a name other than the real corporate name. If a plaintiff uses a fictitious name in his business, a lawsuit should identify the plaintiff's true name. The plaintiff may indicate that he is doing business under another name. The plaintiff is then identified as follows: - If the plaintiff is doing business under a fictitious name, before the lawsuit is filed you should verify that the plaintiff has complied with all local laws regarding such usage. Some states, for example, require that fictitious name statements be filed, and failure to do so can affect the right of a party to sue. - When the defendant is doing business under a fictitious name, the true name of the party may be unknown to you when you are preparing the complaint. Your state may have various records that can be checked, but these are not always complete or accurate. Therefore, the defendant must initially be identified in the complaint by the fictitious name. When the true name of the defendant or defendants is determined, the complaint can be amended.

Incorporating by Reference

- Many complaints contain more than one cause of action. In such a case, each cause of action should be sufficient in itself to constitute a legally sufficient complaint. Because of this, it is often necessary to restate many of the same allegations that were alleged in prior causes of action. It is not necessary, however, to expressly restate those allegations. If something is being repeated, it can be referred to and incorporated by reference - Remember that not all parties to the complaint must be parties to all causes of action. However, each of those named in the caption must be a party to at least one cause of action within the complaint, and this includes "Doe" defendants when such defendants are allowed.

Status

- The status of a party refers to the type of entity that describes the party. Most commonly a party to a lawsuit is an individual, a corporation, a partnership or other unincorporated business, or a government agency. Unless a party is simply an individual, the status of the party is usually described both in the caption and in a separate allegation within the body of the complaint. For example, in the situation described in the Commentary to this chapter, if the Hendrickses were to sue the seller of the property, the seller would be identified in the caption as follows: - In addition, within the body of the complaint you would include a paragraph describing that status, such as the following: Defendant, PARADISE FOUND, INC., is and was at all times herein mentioned a corporation duly organized and existing under the laws of the state of Idaho.

Joining Multiple Parties

- Many lawsuits involve disputes with multiple plaintiffs and/or defendants. The rules concerning joinder of multiple parties can be extremely involved and confusing. However, joinder of parties usually falls into two categories: joinder that is allowed but not required, known as permissive joinder; and joinder that is required, or compulsory joinder. Before drafting any complaint with multiple parties, you may need to review these rules. - The rules regarding permissive joinder, joinder of parties that is allowed but not required, are very liberal. Parties are permitted to be joined together in a complaint as plaintiffs or defendants as long as there is some common question of law or fact and the claim arises out of the same occurrence or series of occurrences. Of course, you would not name someone as a plaintiff in a complaint unless your law firm represented that party. - Whether certain parties must be joined in the same complaint is a more difficult issue. Generally, if the court cannot resolve the case without the presence of a party, then joinder of the party is required. For example, suppose that title to a certain piece of real property is in question, and four different individuals are claiming ownership. If one of those parties files a lawsuit to determine ownership (known as a quiet title action), he must name the other three claimants as defendants. The court cannot determine ownership unless all four parties appear before the court. When parties are required to be joined in the lawsuit, they are sometimes referred to as indispensable party. - Even when it seems that joinder of certain parties is essential to the case, if jurisdiction over one of the parties is impossible to obtain, the court may allow the matter to proceed without that party being named. These cases obviously present complicated legal issues that must be thoroughly researched before you prepare the complaint.

Fictitious Defendants

- Not to be confused with parties who use a fictitious name in business is a concept known as fictitiously named defendants, a procedure that is allowed in some jurisdictions. This term usually refers to defendants whose very identity is unknown. They are usually identified as "Does." In jurisdictions that allow this use, "Does" are commonly named as defendants in complaints to protect against a new defendant being discovered after the statute of limitations has run. This allows the attorney to argue that the complaint was filed against the newly discovered defendant within the statute of limitations; he was just referred to by an incorrect name. The attorney then tries to amend the complaint to "correct" the name. "Does" are not generally used in federal court. Instead, Rule 15 of the Federal Rules of Civil Procedure allows plaintiffs to name a newly discovered defendant even after the statute of limitations has run, as long as the new party received notice that the lawsuit had been filed within the time allowed for service, would not be unduly prejudiced, and knew that but for a mistake, he or she would have been named as a party in the original lawsuit. In such a case, the date of filing against the new party "relates back" to the original filing date.

Exhibits

- Occasionally it is desirable or even necessary to attach a copy of some document to the complaint. For example, if a complaint is based on a breach of contract, a copy of the contract might be attached to the complaint as an exhibit and referred to in the body of the complaint. In a lawsuit based on trademark or patent infringement, copies of the trademark or patent applications might be attached as exhibits. The Federal Rules allow exhibits to be attached but do not prescribe a way to do this. Many local courts, however, describe in detail how this is to be done. Exhibits are placed at the end of the complaint, following the signatures and declarations, and are labeled (e.g., Exhibit A). If there are several exhibits, the court might require an index to the exhibits. Along with the complaint itself, many courts have a form cover sheet that must be filled out and accompany the complaint.

Alleging Multiple Claims

- Often a plaintiff has more than one potential claim against the defendant. Again, consider the Hendricks case described in the opening Commentary. If the plaintiffs can prove their realtor knew that the slides of the property were forgeries and that the property was not suitable for building and lied to them about it, they have a claim for fraud or intentional misrepresentation. Such a claim, if proven, would entitle the plaintiffs to punitive damages in addition to their out-of-pocket losses. However, proving that a misrepresentation was intentional is sometimes difficult, and the plaintiff's attorney may wish to have a claim for negligent misrepresentation as well, in the event that the defendant's intent cannot be adequately shown. Proving negligent misrepresentation would entitle the plaintiffs to their actual losses but would not allow an award of punitive damages. This is an alternative claim, which can be stated in the complaint. Normally, this claim would be set out in a second cause of action, sometimes referred to as a count, separate from the first cause of action or first count for fraud. In the Hendricks case, other causes of action may also be possible. For example, the Hendrickses might simply wish to disaffirm the contract (rescind it) and get their money back (restitution). Additionally, because the Hendrickses did not have their own real estate agent, the facts might indicate that May Forrester was acting in a dual capacity, representing both Paradise Found, Inc. and the Hendrickses. As such, May Forrester would be in a special fiduciary relationship with the Hendrickses, a relationship that she abused. This could result in another claim. - A complaint may contain any number of causes of action or counts. Whenever a cause of action arises out of the same general factual situation, the rules of pleading usually allow them to be joined in the same complaint. - Determining whether the defendant's conduct toward the plaintiff results in more than one claim or cause of action can be very difficult. As a general rule, if the claims provide different remedies or are proven by different facts or evidence in the case, they should probably be separated into distinct causes of action. However, because the rules for interpreting pleadings are so liberal, if two or more claims are combined into one cause of action, the court could either allow the pleading to stand as written or allow it to be amended. - A question sometimes arises when a complaint contains two inconsistent causes of action. - EXAMPLE: Bryant signs a contract with Yates to buy a house for 200,000. Before the time for the deal to close, Yates informs Bryant that he has changed his mind and will not sell. As of the date of sale, the value of the house had increased to 220,000. Bryant now has a choice. Does he want the house, or should he make Yates pay for any damages that he incurred because he did not get the house (the damages being the difference between the purchase price and the fair market value at the time and place of sale)? If he gets the house at the original contract price, he will not suffer any monetary damage. - Asking for both specific performance of the contract and for damages because it was not performed are inconsistent. The rules of pleading usually allow the plaintiff to allege causes of action that are inconsistent. However, the plaintiff will not get a judgment on both of them.

Drafting the Complaint

- Once you identify the parties to the lawsuit, determine the causes of action, and decide on the appropriate remedy, you are prepared to start drafting the complaint for your attorney's review. Before actually writing the document, however, be sure to check any local court rules regarding technical requirements for the pleading. Is a certain type or size of paper required? Does the size of print matter? Is there a special format that must be followed? Many courts have special rules regarding these and other details. - Also, to save time in drafting the complaint, you should check form books (or a form file, if one is kept in the office) for a sample complaint that deals with a similar factual situation. Even the most experienced litigation attorneys and paralegals follow forms whenever possible. If a case is to be filed in federal court, American Jurisprudence Pleading and Practice Forms Annotated, a Thomson/West publication, can be helpful, as are the forms found in the Appendix of Forms to the Federal Rules of Civil Procedure. - In some jurisdictions, a complaint is prepared on numbered paper known as pleading paper. However, many jurisdictions have discontinued this practice.

Money Damages

- Probably the most common relief sought in a civil lawsuit is money damages. The primary purpose of damages in a civil suit is to compensate plaintiffs for a loss they have sustained. These damages are known as compensatory damages. Compensatory damages may be referred to by other names. For example, in personal injury cases compensatory damages are categorized as either special damages or general damages. Special damages are actual out-of-pocket expenses incurred by the plaintiff, such as doctor bills and lost earnings. General damages are not out-of-pocket expenses; instead they are such things as pain and suffering, loss of use of a limb, or disfigurement caused by a scar. Even though general damages do not reimburse the plaintiff for an economic expense, they do compensate the plaintiff for some loss. In some jurisdictions an uninjured spouse has a separate claim for money damages for loss of consortium. Damages for loss of consortium are intended to compensate a person who suffers the loss of companionship and comfort of a spouse who was injured because of the wrongdoing of another. In a few jurisdictions, parents can also claim loss of consortium resulting from injury to a child. - Although money damages in most civil cases are compensatory in nature, sometimes a plaintiff is entitled to recover punitive or exemplary damages. These are meant to punish the defendant and are awarded only when the defendant has committed some extremely offensive act. Such damages are not favored by the courts and come under careful scrutiny by the appellate courts. The U.S. Supreme Court has also held that punitive damages are subject to limitations. Nevertheless, they are allowed in some cases. - In the course of any lawsuit, the parties inevitably incur substantial expenses, or costs. These include such items as filing fees, process server fees, deposition fees, and expert witness fees. Costs are not included in computing the plaintiff's damages. However, if the plaintiff wins her lawsuit, she will generally be awarded certain costs in addition to the actual damages. However, should the defendant win the case, he will generally be awarded his costs from the plaintiff. Items included in these recoverable costs are usually determined by a specific statute. One element that is usually not included in the list of recoverable costs is the attorney fee in the case. Unless the lawsuit is based on a contract that specifically provides for the payment of attorney fees in the event of a legal dispute, or unless there is some special law governing the situation, parties are expected to pay their own attorney fees.

Amending the Complaint

- Regardless of how carefully you draft a complaint, at times additions, deletions, or changes must be made. To do this you need to amend the complaint. Most jurisdictions view the rules of pleading very liberally. No court is interested in seeing a party lose a case because of some technical deficiency in the pleadings that could be easily corrected. As long as an amendment does not drastically alter the nature of the case, or cause any undue hardship to the defendant or delay in the case, it will probably be allowed. Rule 15 of the Federal Rules of Civil Procedure allows the plaintiff to amend the complaint once, as a matter of right, within 21 days after a responsive pleading or motion was filed. After that, the plaintiff needs either a stipulation from the other parties agreeing to the amendment or an order from the court. A stipulation to amend the complaint is a written agreement among all parties (signed by their attorneys) allowing the plaintiff to make certain changes in the complaint. It is generally filed in court along with the amended complaint. If the plaintiff cannot obtain a stipulation, he must make a motion in court asking the court to allow the filing of the amended complaint. - To amend a complaint, appropriate changes are made to the original complaint, and a new complaint is prepared. It is entitled "First Amended Complaint." Other than the title, the format of the document is the same as that of the original complaint. - When a complaint is amended, the statute of limitations usually relates back to the original date of filing. In other words, a complaint can usually be amended even after the statute of limitations has expired. An exception to this rule sometimes occurs when the amendment seeks to add a new defendant, one who was not named in the original complaint. As mentioned, in jurisdictions that allow their usage, the use of fictitiously named defendants, "Does," avoids this problem. In such a case, when the complaint is amended, it is not to bring in a new defendant, but rather to correct the name of that defendant. In federal court, under Rule 15 of the Federal Rules of Civil Procedure, the amendment relates back to the original filing date only when the newly named party has received notice of the action within 120 days of its being filed, will not be prejudiced, and knew or should have known that but for a mistake he would have been sued in the original complaint. - After an amended complaint is filed with the court, it must be served. However, if the defendants have obtained an attorney to represent them, service can be accomplished by mailing a copy of the amended complaint to the attorney.

Federal Courts

- Rule 5(d)(3) of the Federal Rules of Civil Procedure provides that "A court may, by local rule, allow papers to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States. A local rule may require electronic filing only if reasonable exceptions are allowed. A paper filed electronically in compliance with a local rule is a written paper for purposes of these rules." - To date almost every federal district court has adopted local rules regulating the process. Electronic filing in the federal court is dependent on two technology systems adopted by the federal court system: Public Access to Court Electronic Records (PACER) and Case Management and Electronic Case Files (CM/ECF). - Recall that PACER is a system whereby the public can electronically access case information concerning cases filed in a specified federal court. Use of the PACER system allows the user to retrieve information about court filings and see many actual documents filed in the case by the attorneys (e.g., complaints, answers, and motions); however, this system has no capabilities for attorneys to file documents in the court. To file papers in the federal courts, attorneys must use the court's case management system (CM/ECF). - Electronic filing provides many advantages to both the court and the attorneys. It allows the court to maintain an electronic file that is accessible through the Internet (using the PACER system for federal courts), documents are never "misplaced," and judges and attorneys can view documents at any time. In large complex cases with multiple parties and multiple pleadings, these are valuable features. Attorneys and paralegals are often faced with technical and practical considerations when e-filing documents. Fortunately, most courts provide detailed instructions, tutorials, and user guides to facilitate the process. Additional information and tutorial help can be found through the PACER Web site at <http://www.pacer.gov/cmecf/>. - Before attempting to electronically file a document several steps must be taken: 1. Read all local rules concerning the procedure. Local rules will inform you as to whether you are allowed to file a particular document electronically. Some courts do not allow the initial complaint to be e-filed and may have rules excluding certain types of cases from e-filing. In some instances local rules not only allow e-filing but also require it. A local rule may provide that individual judges have the right to determine whether cases assigned to them should be subject to e-filing. If so, you may find that once you file a paper copy of the complaint, you are ordered to submit an electronic copy to the court. 2. Make sure that your office has the computer hardware and software necessary to e-file. There are basic requirements for e-filing—a computer, a scanner, Internet access, and software that will convert your documents to a portable document format (PDF), which prevents anyone from making changes to the document. 3. Prior to actually filing, the attorney must register with both the PACER and CM/ECF systems. The attorney will be given a password that is required to log on to the e-filing system. You will not be allowed to e-file without this registration. 4. Prepare the documents to be e-filed according to court rules and convert them to a PDF. The federal courts require documents to be in a PDF format. (State courts may have different rules on this.) If you have attachments or exhibits for your document, they are usually scanned in. 5. Access the court Web site where the document is to be filed, and then log on to the system for e-filing. At this point you will be required to provide information about the document and case. Several screens will prompt you for information about the attorneys, the parties, and the nature of the documents. The courts have extensive lists describing labels to be assigned to documents. One of the more difficult aspects of e-filing is identifying the proper label or category of the documents to be filed. 6. If your document is successfully filed, you will receive an electronic receipt showing this fact. - One question that inevitably arises in the e-filing process is how to handle signature requirements. Attorney signatures are generally not required. Because the attorney has registered for PACER and CM/ECF and been given a special log-on password, the court considers use of that password to carry the same significance as a signature. If a signature of someone other than the attorney is required, many courts require the attorney to maintain the original paper document with the signature and to electronically file a conformed copy. A conformed copy often contains an indication on the signature line such as "s/" followed by the individual's name. This signifies that the original document contains an actual signature. Another consideration is payment of any filing fees. This is often done through credit cards. - When a document is e-filed, the attorneys realize one further advantage. Upon filing any document, the court often sends notice to all parties who have electronically appeared in the action. Because the parties can then access the document online, in many cases, no formal service is required for anyone who receives the electronic notice. Formal service is almost always required for a complaint, however, even if it is electronically filed. In such cases, defendants would not have already appeared and thus would not have received any electronic notice.

Equitable Relief

- Some legal disputes cannot be settled by an award of money damages. - Lawsuits in which equitable relief is sought are known as actions in equity, whereas lawsuits in which money damages are sought are known as actions at law. A complaint may combine a request for equitable relief and money damages. - The types of equitable relief that can be ordered by a court of equitable jurisdiction are varied. Some of the more common types of equitable relief follow: specific performance—an order requiring a party to perform a contract rescission—an order rescinding or voiding a contract restitution—an order to return money or property, usually paid in connection with a contract that was subsequently rescinded declaratory relief—a court order defining or explaining the rights and obligations of parties under some contract or other document quiet title action—an order clarifying ownership of real property injunction—an order requiring a party to stop doing something - Along with the award of equitable relief, the court generally awards the prevailing party her costs of suit, just as it would with actions for money damages.

Alleging Jurisdiction and Venue

- The complaint must contain some allegation showing that the lawsuit is filed in the proper court. This involves questions of both jurisdiction and venue. In federal court, these allegations are usually very specific. In showing jurisdiction, the plaintiff states why the action is filed in federal court, giving a citation to the appropriate United States Code section. The Appendix to the Federal Rules of Civil Procedure contains sample allegations regarding federal jurisdiction: a. (For diversity-of-citizenship jurisdiction.) The plaintiff is [a citizen of Michigan] [a corporation incorporated under the laws of Michigan with its principal place of business in Michigan]. The defendant is [a citizen of New York] [a corporation incorporated under the laws of New York with its principal place of business in New York]. The amount in controversy, without interest and costs, exceeds the sum or value specified by 28 U.S.C. § 1332. b. (For federal-question jurisdiction.) This action arises under [the United States Constitution, specify the article or amendment and the section] [a United States treaty specify] [a federal statute, U.S.C. § ]. c. (For a claim in the admiralty or maritime jurisdiction.) This is a case of admiralty or maritime jurisdiction. (To invoke admiralty status under Rule 9(h) use the following: This is an admiralty or maritime claim within the meaning of Rule 9(h).) - In state courts, jurisdiction is determined by state law. It is not always necessary to make an express statement that jurisdiction is proper in state court. Such a conclusion will usually follow from all of the facts alleged in the complaint. In some states, however, different trial courts have different types of jurisdiction. For example, some state trial courts are empowered to hear civil cases only when the amount in dispute is less than a set amount of money. Within the complaint and in the prayer, or demand for relief, it should be shown that the amount claimed is within the jurisdiction of the court in which the case is filed. - In federal or state courts, venue can be determined by a number of factors. The most common factor is the residence of the defendant. Proper venue can be shown in the complaint by an allegation that one of the defendants resides in the district in which the action is filed. Venue is also proper in the place where the cause of action arose. Therefore, another common way of establishing venue is by alleging that the cause of action arose in the district in which the action is filed. However, there are many different ways to establish venue, depending on the nature of the case

Serving the Complaint

- The defendant in any lawsuit is entitled to receive notice of the action. This is accomplished by service of process. A copy of the summons and a copy of the complaint must be delivered to the defendant. It is the plaintiff's responsibility, rather than the court's, to see that the defendant is properly served. As a litigation paralegal, one of your duties may be to arrange for service after the complaint has been filed. - All jurisdictions have rules regarding who can serve the papers, how they can be served, and time limits for service. For federal court, these rules are found in Rule 4 of the Federal Rules of Civil Procedure. Although there may be some differences from one jurisdiction to another, there are similar concepts. Generally, plaintiffs cannot serve the papers themselves. Someone must do it for them. Various law enforcement agencies and personnel, such as the U.S. Marshal or a local sheriff, sometimes take responsibility for serving civil complaints. They may, however, charge the plaintiff a fee for doing this. In other instances, the complaint is served by a licensed process server, an individual licensed by the state to serve papers. In some cases, the complaint is served by any adult who is not a party to the action. - You must be concerned not only about who serves the complaint, but also with how it is served. A common method of service is personal service of process. In personal service, a copy of the summons and complaint are personally delivered to the defendant. Sometimes this is difficult, if not impossible. Some laws, such as Rule 4 of the Federal Rules of Civil Procedure, allow a copy of the summons and complaint to be left with a competent adult at the defendant's residence. Some states also allow the papers to be served by mail or in some cases by publication. When personal service cannot be accomplished, appropriate laws must be reviewed to determine alternatives. - If the defendant in the lawsuit is a corporation, service is usually accomplished by serving an officer of the corporation or by serving an individual whom the corporation has designated to accept service. As previously noted, this individual is known as the agent for service of process. The names and addresses of corporate officers or agents for service can usually be obtained from the secretary of state where the corporation is incorporated or does business. - Service on corporations or individuals located outside of the United States often presents special challenges. Rule 4 allows service in a number of different ways, including any method as directed by the court. In a 2013 case decided by the district court located in the Southern District of New York, the court authorized service through e-mail and Facebook, finding that these methods were likely to give actual notice to the defendants, who were located in India. The case was FTC. v. PCCare247, Inc. Service of individuals outside of the United States may also raise issues under treaties with foreign nations. Information about these treaties can be found on the Web site for the U.S. Department of State at <http://travel.state.gov/law/judicial/judicial_680.html> - In addition to the manner of service, you also need to be concerned about any time limits that may affect service. For example, in federal court the copy of the complaint and summons should be served within 120 days of the filing of the complaint. Failure to do so, without justification, can result in dismissal of the action. (See Rule 4[m] of the Federal Rules of Civil Procedure.) It is a good idea, therefore, to tickle or calendar the file to check for timely service. After service has been completed, the person serving the complaint must certify in writing when, where, and how service was accomplished. This is done in a document called a proof of service. A form for the proof of service will probably be found on the reverse side of the summons. The proof of service should then be filed with the court.

Minors and Incompetents

- The parties named in the complaint must have capacity, or the legal right, to sue or be sued. Competent, adult individuals generally have the right to sue or be sued. However, children or incompetent adults do not have the capacity to pursue their own lawsuits. Unless a general guardian or conservator has already been appointed, the court will appoint a special person, referred to as a guardian ad litem, to pursue the case on behalf of the minor or incompetent. In many jurisdictions, even the parents of a child cannot file a lawsuit on their child's behalf unless they are appointed as guardians by the court. A guardian ad litem is usually appointed at the request of the parent or guardian. The person wishing to be appointed files a motion or a petition with the court prior to filing any lawsuit, asking to be named as guardian ad litem. The complaint in such a case has the same caption as the petition or motion for the appointment of the guardian. The following is an example of how the parties would be designated in such a case. - Although children or incompetents cannot sue in their own names, they can generally be named as defendants in the complaint. However, after they are served with the complaint, they may be entitled to have a guardian appointed to represent their interests. Again, local law should be reviewed to determine whether appointment of a guardian ad litem for a defendant is necessary and, if so, how it is accomplished.

Identifying and Describing the Parties

- The parties to the lawsuit are identified in the caption by their names, indicating whether they are plaintiff or defendant. In the body of the complaint, the parties are described in more detail. - Normally identifying the plaintiff and defendant in the caption is relatively simple. At times, however, problems arise. As a paralegal involved in preparing or drafting a complaint, you should be aware of some of these problem areas.

Real Party in Interest

- The plaintiff in any lawsuit should be the one who is entitled to the relief sought in the complaint. This party is known as the real party in interest. In most cases, parties do not file lawsuits unless they have personally suffered some loss. However, at times a special relationship exists that creates a different situation. For example, an executor may want to sue on behalf of an estate, a trustee may sue on behalf of a trust, or a collection agency may wish to sue on a debt assigned to it for collection. In such cases, is the plaintiff the executor or the estate, the trustee or the trust, the collection agency or the creditor? Under Rule 17a of the Federal Rules of Civil Procedure, the executor, the trustee, and even the collection agency could be named as plaintiffs in the lawsuit even though they are not suing on their own behalf. However, if the action is in state court, appropriate state laws should always be checked.

Governmental Agencies

- There is no question about the right of a government entity to sue on a claim. However, because of the common law doctrine of sovereign immunity (the king could not be sued), many jurisdictions have laws that limit and regulate the circumstances under which a government entity can be sued. Appropriate statutes must be checked to see if the claim is one for which the offending government agency can be sued. Even when a statute permits the government to be sued, laws may require that claims be filed with the government agency before actually filing a lawsuit. If a claim is required, the complaint should state that this was done.

Waiver of Service

- Under Rule 4 of the Federal Rules of Civil Procedure, a defendant is encouraged to waive formal service of process. The rule sets out a procedure to be followed to accomplish this. The plaintiff sends by first-class mail the following documents: the complaint, a notice explaining the process of waiver and the consequences of failing to waive service, and a waiver form for the defendant to sign. The defendant then signs and returns the waiver-of-service form to the plaintiff's attorney within 30 days (or 60 days if the defendant is outside the country). Waiver of service is dependent on the defendant's agreement. If he fails to sign and return the written waiver form, then service must be accomplished in one of the more traditional methods. However, if the defendant refuses to waive service, the court can impose on that defendant the cost of subsequent service

Multiple Parties and Causes of Action

- We have already seen that a complaint may contain multiple plaintiffs or defendants. When this occurs, questions arise about whether the parties should be joined within the same cause of action, or whether separate causes of action are required. No absolute rules govern this situation, and the rules of pleading in most jurisdictions are liberal enough to allow almost any method of handling this situation. However, some guidelines are commonly followed. - Multiple plaintiffs should be joined within the same cause of action if they have a joint claim or if they are suing for the same damages or remedy. For example, in the factual situation described in the Commentary, both Margaret and Paul Hendricks are suing for the same thing—the damages that they sustained in buying the lot. Note that they are not each suing for one-half of the damages. They are suing together for the total damages. Therefore, they should be joined in the same cause of action. - When the plaintiffs are suing for something different, however, their claims should be in separate causes of action. For example, suppose that Herbert and Wanda Sepulveda, husband and wife, are both injured in the same automobile accident and wish to sue the driver of the other vehicle. In such a case they are suing for different things. He is suing for his injuries, and she is suing for her injuries. They would, therefore, have two separate causes of action. However, the two causes of action would be in one complaint. When there are multiple plaintiffs and defendants, it is not necessary that they all be parties to each of the causes of action. Again, when there is some common factual or legal basis among the various causes of action, they can be joined in one complaint.