Filing a complaint – Rules 8 and 11
Once you decide to litigate, you choose a forum. This involves personal jurisdiction, subject matter jurisdiction, venue, Erie, and choice of law. Okay, we’ve got the right court and the right law, so now we’re going to file a complaint, which involves Rules 8 and 11.
We looked at the Federal Rules of Civil Procedure themselves, such as Rule 11, which requires me as an attorney to sign papers that are filed with the court. On the other hand, Rule 8 says we shall use notice pleading, which means we don’t need to put all the info into the initial pleading. Fairman argues that Rules 8 and 11 are in conflict…and it’s just that same conflict between efficiency and equity. Rule 11 requires you to do more than Rule 8 requires you to do in your complaint, which may lead to conflicts.
Bridges v. Diesel Service, Inc. – Should the plaintiff be sanctioned for a Rule 11 violation? What Rule 11(b) says is that you have an obligation, as an attorney, to sign every piece of paper that’s ultimately filed in the court, like pleadings and motions. By signing the stuff, you are certifying that what you say in that document has been formed after a reasonable inquiry, that it’s not being used for improper purposes (harassment or delay), and that your claims are warranted by existing law or a good-faith effort to change the law. You are promising that you’ve done your research and you have a good-faith basis to make the motion you’re making.
Pleading – Rules 8 and 9
Under the federal rules, the pleading is governed by Rule 8. You have to provide “a short and plain statement of the claim showing that the pleader is entitled to relief”. This is notice pleading. All you have to do is put the other party on notice of the accident such that they can form a response to the complaint. The plaintiffs don’t have to explain their legal theory.
There are exceptions: Rule 9(b) says that in cases of fraud or mistake, claims will be stated with “particularity”. That’s heightened pleading! It’s the bane of Fairman’s existence!
Bell v. Novick Transfer Co. – Is it necessary for the plaintiff to lay out the facts and allegations in detail in his complaint? Rule 8 only requires only “notice pleading”, which is just a brief statement that shows the plaintiff can get relief.
What is the relationship between Rule 8 and Rule 11? Rule 8 tells us that your complaint need only have “bare allegations”, while Rule 11 requires you to have investigated and have evidentiary support for your factual allegations. From the plaintiff’s standpoint, when I sign a complaint, I’m supposed to have done all the investigation necessary to support my complaint. But I don’t need to put that research into my complaint! There might thus be a tendency on the part of the plaintiff to cut corners and ultimately violate Rule 11. The rules are in tension with each other!
Wright called Rule 8 “the keystone”. It’s easy to sue people: you give them notice. Everything else in procedure is designed to “winnow down the issues” to just those things that will be tried on the merits. You join up people, you “discover” which claims have merits, and then you go to trial or settle or get summary judgment. There is an exception, though, in Rule 9(b) where there are particularity requirements for fraud. This rule basically got in by
days after you’ve been served. That’s not a lot of time, because after your client has been served, they go around looking for a lawyer, and by the time they get to you, you might have far less than 20 days to do your answer. But you have another option: if you waive service under Rule 4(d), you get 60 days after the request of the waiver. As a practical matter, most people waive service because that’s a big boon. These are rules for repeat players in the litigation game. So 12(a) just tells us when.
12(b) says there’s a lot of stuff you can present, stuff you can include in your answer. All Rule 12(b) says is: bring it on! Let’s get everybody in and on the table before we get started. The process is designed to get you into court quickly and cheaply, and then we’ll work it out later.
When you file an action against somebody, that’s a claim. What if that person wants to sue you back? That’s the counterclaim. What if I want to sue against two different people? I can have a claim against them, they can have a claim against me, but they might have claims against each other. These are cross-claims. In other words, these are claims between people on the same side of the “v.”: plaintiff v. plaintiff, or defendant v. defendant. Let’s say the defendant wants to bring in their insurance company. This would be a third-party claim.
