I. FEDERAL PLEADING GENERALLY
A. Approach generally:
1. Two types: Two types complaint and the answer. Complaint is the document plaintiff begins the case. Answer defendant’s response complaint.
3. Attorney must sign: The pleader’s lawyer must sign the pleadings. This is true for both the complaint and the answer. By signing, the lawyer indicates that to the best of her belief, formed after reasonable inquiry, the pleading is not interposed for any improper purpose (e.g., harassing or causing unnecessary delays), the claims and defenses are warranted by existing law or a nonfrivolous argument for changing existing law, and (in general) the allegations or denials have evidentiary support. FRCP 11.
a. Sanctions: If Rule 11 is violated (e.g., the complaint, as the lawyer knows, is not well grounded in fact, or supported by any plausible legal argument), the court must impose an appropriate sanction on either the signing lawyer, the client, or both. The most common sanction is the award of attorneys’ fees to the other side.
b. Safe harbor: A party against whom a Rule 11 motion is made has a 21-day “safe harbor”’ period in which she can withdraw or modify the challenged pleading and thereby avoid any sanction.
4. Pleading in the alternative: The pleader, whether plaintiff or defendant, may plead “in the alternative.” “A party may set forth two or more statements of a claim or defense alternately or hypothetically.” FRCP 8(e).
II. THE COMPLAINT
A. Complaint generally: The complaint is the initial pleading in a lawsuit, and is filed by the plaintiff.
1. It Commences action: The date of filing of the complaint is what counts for statute of limitation purposes in federal question suits.
2. Elements of complaint: (FRCP 8(a)):
a. Jurisdiction: A short and plain statement of the grounds upon which the court’s jurisdiction depends;
b. Statement of the claim: A short and plain statement of the claim showing that the pleader is entitled to relief; and
c. Relief: A demand for judgment for the relief (e.g., money damages, injunction, etc.) which the pleader seeks.
B. Specificity: Plaintiff must make a “short and plain statement” of the claim showing that she is entitled to relief. The level of factual detail required is not high – gaps in the facts are usually remedied through discovery. Plaintiff needs to state only the facts, not the legal theory she is relying upon.
C. Special matters: Certain “special matters” must be pleaded with particularity if they are to be raised at trial.
1. Catalog: The special matters listed in FRCP 9b In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of the mind may be alleged generally.
a. Note: The above matters requiring special pleading apply to the answer as well as to the complaint.
2. Effect of failure to plead: P may not recover these damages, unless the court agrees to specially permit this “variance” between proof and pleadings.
III. MOTIONS AGAINST THE COMPLAINT
A. Defenses against validity of complaint: Either in the answer, or by separate motion, defendant may attack the validity of the complaint in a number of respects. Rule 12(b) by:
1. Lack of jurisdiction over the subject matter;
2. Lack of jurisdiction over the person;
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of service of process;
6. Failure to state a claim upon which relief may be granted; and
B. 12(b)(6) motion to dismiss for failure to state a claim: Defense can make a Rule 12(b)(6) motion to dismiss for “failure to state a claim upon which relief can be granted.” The motion asserts that on the facts as pleaded by P, no recovery is possible under any legal theory.
1. Different motion once D files answer: A Rule 12(b)(6) motion to dismiss is generally made before D files his answer. After D has filed an answer, and the pleadings are complete, D can accomplish the same result by making a Rule 12(c) motion for “judgment on the pleadings.
C. Amendment: If the complaint is dismissed in response to D’s dismissal motion, P will almost always have the opportunity to amend the complaint.
1. Amendment as of right: If D makes a motion against the complaint before filing his answer, and the court grants the dismissal, P may automatically amend – Rule 15(a) allows amendment without leave of court any time before a responsive pleading is served, and motions made under 12(b) are not deemed to be responsive pleadings.
2. Amendment by leave of court: If D serves his answer before making the Rule 12(b) motion, and is then successful with the motion, P may amend only by getting leave of court (i.e., permissi
dment as of right: A pleading may be amended once as a matter of right (i.e., without leave of court) as follows:
1. Complaint: The complaint may be amended once at any time before the answer is served. (A motion is not the equivalent of an answer, so the fact that D has made a motion against the complaint does not stop P from amending once as a matter of right.)
2. Answer: The answer may be amended once within 20 days after D has served it. (If the answer contains a counterclaim, the answer may be amended up until the time P has served her reply.)
C. Amendment by leave of court: If the above requirements for amendment of right are not met, the pleading may be amended only by leave of court, or by consent of the other side. But leave by the court to amend “shall be freely given when justice so requires.” (Rule 15(a).) Normally, the court will deny leave to amend only if amendment would cause actual prejudice to the other party.
D. Relation back: When a pleading has been amended, the amendment will relate back to the date of the original pleading, if the claim or defenses asserted in the amended pleading “arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” Rule 15(c). This “relation back” doctrine is mainly useful in meeting statutes of limitations that have run between filing of the original complaint and the amendment.
1. A single “conduct, transaction or occurrence”
2. When action is deemed “commenced”
3. Change of party
DISCOVERY AND PRETRIAL CONFERENCE
I. GENERAL PRINCIPLES
A. Forms of discovery: Discovery under the Federal Rules includes six main types: 1. Automatic disclosure;
2. Depositions, taken from both written and oral questions;
3. Interrogatories addressed to a party;
4. Requests to inspect documents or property;
5. Requests for admission of facts;