Chapter 5: The Complaint

Question 1

The Nature and Purpose of Pleadings

Answer 1

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 with the 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 “allegations,” describing the contentions and defenses of the parties to the lawsuit

Textbook pleadings definition: Documents that describe the claims and defenses of a lawsuit, including the complaint and the answer to the complaint

Question 2

Unless a defendant defaults, both the plaintiff and the defendant file pleadings with the court:

Answer 2

• The plaintiff files the first pleading, a complaint (or sometimes a petition), stating the basis for a 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

Question 3

The pleadings set the framework for all of the steps and proceedings that follow

Answer 3

If an issue is not raised in the pleadings, the parties may be prevented from bringing it up at trial. Although pleadings relate to the contentions of the parties, these documents are always prepared by the law firm representing the party

Question 4

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

Answer 4

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

Question 5

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:

Answer 5

1. Identifies the plaintiffs and defendants in the lawsuit, an 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

Question 6

The complaint itself usually follows a set format with the following parts:

Answer 6

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

Question 7

caption

Answer 7

the heading found in all pleadings, usually identifying the court, the parties, the nature of the pleading, and the docket number

Question 8

prayer

Answer 8

the part of the pleading (usually at the end) where the party asks the court to either grant or deny some relief

Question 9

subscription

Answer 9

a signature at the end of a document

Question 10

verification (verify)

Answer 10

statement at the end of a document and under penalty of perjury that the contents of the document are true

Question 11

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:

Answer 11

• 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

Question 12

Identifying and Describing the Parties

Answer 12

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

Question 13

Real Party in Interest

Answer 13

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

Question 14

real party in interest

Answer 14

The person who is entitled to the relief requested in a complaint, even though not named as a plaintiff

Question 15

capacity

Answer 15

Having the legal ability to do something such as initiating a lawsuit

Question 16

guardian ad litem

Answer 16

a person who is appointed by the court to represent a party in a lawsuit, where the party lacks the capacity to file the action; guardians ad litem are usually appointed for minors or those who are mentally incapacitated

Question 17

The “status” of a party refers to the type of entity that describes the party

Answer 17

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

Question 18

In addition, within the body of the complaint you would include a paragraph describing that status, such as the following:

Answer 18

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

Question 19

Capacity: Minors and Incompetents

Answer 19

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.

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

Question 20

Corporations and Other Business Entitities

Answer 20

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

Question 21

Business entities other than corporations may be treated differently

Answer 21

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

Question 22

Governmental Agencies

Answer 22

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. 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

Question 23

Parties Using Fictitious Names

Answer 23

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.

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

Question 24

Fictitious Defendants

Answer 24

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 tires 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 defendants 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

textbook definition of “fictitiously named defendants”: Defendants in a lawsuit who are not identified by their correct names; usually refers to the practice in some state courts of including several “Does” as defendants to provide for discovery of additional defendants after the statute of limitations has run

Question 25

Joining Multiple Parties

Answer 25

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 2 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. This is determined by the rules of joinder, which are usually found in the appropriate state laws (or Rules 19-21 of the Federal Rules of Civil Procedure, if the case is in federal court)

Question 26

The rules regarding permissive joinder, joinder of parties that is allowed but not required, are very liberal

Answer 26

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

Question 27

Whether certain parties “must” be joined in the same complaint is a more difficult issue

Answer 27

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 4 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 3 claimants as defendants. The court cannot determine ownership unless all 4 parties appear before the court. When parties are required to be joined in the lawsuit, they are sometimes referred to as “indispensable parties.”

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

Question 28

permissive joinder

Answer 28

a concept allowing multiple parties to be joined in one lawsuit as plaintiffs or defendants as long as there is some common question of fact or law

Question 29

compulsory joinder

Answer 29

a party who should be included or named in a lawsuit; in federal court, Federal Rule of Procedure 19 sets out the criteria for compulsory joinder of parties

Question 30

indispensable party

Answer 30

a person who must be joined in the lawsuit and whose absence makes it impossible for a court to render a judgment

Question 31

class action

Answer 31

a lawsuit brought by a limited number of parties on behalf of themselves and other persons with the same or similar issues

Question 32

Class Actions

Answer 32

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. The related law and procedures are complicated and beyond the scope of this chapter. However, a brief overview is presented

Question 33

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

Answer 33

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 (link to “Class Action Notices Page” for sample forms)

Question 34

Complying with the notice requirements can be an overwhelming and expensive task

Answer 34

If the 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

Question 35

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

Answer 35

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

Question 36

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 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:

Answer 36

• the class is so numerous that joinder of 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 (). by reviewing the publications and searching by subject for class action litigation you find several manuals and articles related to this subject

Question 37

Interpleader

Answer 37

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

textbook definition: a type of action in which a party deposits money or property in the court because, although the party clearly owes money or the return of property, the parties to whom it is owed is unclear; after the property is deposited, the court determines its proper distribution

Question 38

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

Answer 38

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

Question 39

Alleging Jurisdiction and Venue

Answer 39

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

Question 40

In state courts, jurisdiction is determined by state law

Answer 40

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

Question 41

In federal or state courts, venue can be determined by a number of factors

Answer 41

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

Question 42

Pleading the Cause of Action

Answer 42

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

Question 43

In some jurisdictions the complaint must contain factual allegations or statements that support each element of the cause of action

Answer 43

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”

Question 44

Even in notice pleading jurisdictions, some types of cases demand more detailed facts within the complaint

Answer 44

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 (discussed in Chapter 8) 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

Question 45

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

Answer 45

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)

Question 46

Alleging Multiple Claims

Answer 46

Often a plaintiff has more than one potential claim against the defendant. 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

count textbook definition: separate claims stated in one complaint

Question 47

Determining whether the defendant’s conduct toward the plaintiff results in more than one claim or cause of action can be very difficult

Answer 47

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

Question 48

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)?

Answer 48

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.

“specific performance” textbook definition:
a court order requiring a person to fulfill his or her promises in a contract

Question 49

Multiple Parties and Causes of Actionthe

Answer 49

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.

When the plaintiffs are suing for something different, however, their claims should be in separate causes of action. Ex: car accident, plaintiffs in the same car suing for different things. He is suing for his injuries, and she is suing for her injuries. They would, therefore, have 2 separate causes of action. However, the 2 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 causers 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

Question 50

Request for Damages or Ohe ther Relief

Answer 50

Every complaint or petition filed in an action contains a demand for relief from the court, often called the “prayer.” Courts have the power to grant 2 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

Question 51

Money Damages

Answer 51

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

compensatory damages textbook definition: an award of money damages that compensates the plaintiff for actual loss, including pain and suffering

Question 52

Although money damages in most civil cases are compensatory in nature, sometimes a plaintiff is entitled to recover “punitive or exemplary damages.”

Answer 52

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

Question 53

In the course of any lawsuit, the parties inevitably incur substantial expenses, or costs

Answer 53

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 this costs from the plaintiff. Items included in these recoverable costs are usually determined by a specific statue. 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

punitive or exemplary damages textbook definition: damages that punish a defendant for intentional or malicious conduct that causes injury

Question 54

Equitable relief

Answer 54

some legal disputes cannot be settled by an award of money damages.

textbook definition: a judicial remedy other than money damages, such as specific performance of a contract or an injunction

Question 55

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:

Answer 55

• “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

Question 56

rescission

Answer 56

to “undo” or abrogate a contract

Question 57

restitution

Answer 57

returning property to the original owner where fairness requires that it be done

Question 58

declaratory relief

Answer 58

a court order defining or explaining the rights and obligations of parties under some contract or other document

Question 59

quiet title action

Answer 59

a legal proceeding to determine ownership of real property

Question 60

injunction

Answer 60

a court order requiring a party to take some action or to stop some conduct

Question 61

Provisional Remedies

Answer 61

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

Question 62

A “temporary restraining order (TRO)” usually compels the defendant to stop certain conduct immediately

Answer 62

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 ague 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

Question 63

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

Answer 63

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 and are discussed in more detail in Chapter 7

Question 64

temporary restraining order (TRO)

Answer 64

an order from the court requiring a person to act or refrain from acting in a certain way, issued for limited time until a full hearing on the matter can be scheduled

Question 65

preliminary injunction

Answer 65

a court order made prior to final judgment in the case, but after all parties have had the opportunity to present evidence, directing that a party take or refrain from some action until the trial in the case takes place

Question 66

To save time in drafting a 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

Answer 66

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

Question 67

The Caption

Answer 67

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

Question 68

The Causes of Action

Answer 68

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 complaint is very helpful in setting up tis part of the complaint. In the absence of a form to follow, you can use normal paragraphing rules.

Question 69

Even though there is no mandatory order in which paragraphing must be done, there are typically employed conventions:

Answer 69

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 to 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

Question 70

Pleading on Information and Belief

Answer 70

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

Question 71

Incorporating by Reference

Answer 71

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

Question 72

The Prayer

Answer 72

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

Question 73

The Subscription

Answer 73

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 laws, and that the allegations have evidentiary support. If the court finds these representations to be false, it has the power to sanction the attorney

Question 74

The Request for a Jury

Answer 74

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

Question 75

Verifications

Answer 75

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

Question 76

Disclosure Statement by Nongovernmental Corporate Party

Answer 76

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 field their first documents in court. Thus, if the defendant is a corporation, it must file a disclosure statement with its answer

Question 77

Exhibits

Answer 77

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. Along with the complaint itself, many courts have a form cover sheet that must be filled out and accompany the complaint

Question 78

Filing the Complaint

Answer 78

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 2 or 3 copies)

Question 79

The traditional manner of filing complaints (as well as other pleadings and motions) involves delivery of the paper documents to the court

Answer 79

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

filing textbook definition: presenting a paper to the court clerk to be included in the court file for the case

docket number textbook definition: a number assigned to a lawsuit by the court; each pleading or document filed in the action must bear this number

Question 80

Electronic Filing (E-Filing) Federal Courts

Answer 80

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.”

Question 81

To date almost every federal district court has adopted local rules regulating the process. Electronic filing in the federal court is dependent on 2 technology systems adopted by the federal court system: Public Access to Court Electronic Records (PACER) and Case Management and Electronic Case Files (CM/ECF).

Answer 81

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)

Question 82

Before attempting to electronically file a document several steps must be taken:

Answer 82

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 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

Question 83

One question that inevitably arises in the e-filing process is how to handle signature requirements

Answer 83

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

Question 84

When a document is e-filed, the attorneys realize one further advantage

Answer 84

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 field. In such cases, defendants would not have already appeared and thus would not have received nay electronic notice

Question 85

State Courts

Answer 85

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 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

Question 86

The Summons

Answer 86

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 e-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

textbook definition: a form served with a complaint informing a person of a lawsuit against him or her, the time limit for responding to the lawsuit, and the consequences of failing to respond

Question 87

Serving the Complaint

Answer 87

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

Question 88

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

Answer 88

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

Question 89

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.”

Answer 89

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

personal service of process textbook definition: notice of a lawsuit or other proceeding that is given to a party by personally delivering a copy of the papers to that party

Question 90

Service on corporations or individuals located outside of the U.S. often presents special challenges

Answer 90

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 U.S. 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

Question 91

In addition to the manner of service, you also need to be concerned about any time limits that may affect service

Answer 91

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 the 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

proof of service textbook definition: written verification that papers have been delivered to a party, detailing when, where, and how the papers were delivered

Question 92

Waiver of Service

Answer 92

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

Question 93

Amending the Complaint

Answer 93

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

Question 94

Stipulation

Answer 94

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

Textbook definition: an agreement between opposing lawyers in a lawsuit

Question 95

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

Answer 95

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