Chapter 5 - Pleadings

CHAPTER OBJECTIVES

The documents filed by the plaintiff to commence a lawsuit and the documents filed by the defendant in response to the lawsuit are called pleadings. The Federal Rules of Civil Procedure state the types of pleadings that are permitted. The Federal Rules of Civil Procedure, along with the local rules of court, also govern the format and content of the pleadings. Chapter 5 of the text describes the types of pleadings that my be filed and the requirements that must be followed in drafting the pleadings. Before beginning the exercises, review the specific objectives for this chapter of the text.

· What the general requirements are for all pleadings

· How to draft a complaint

· What pleadings the defendant may file in response to the complaint

· How to draft an answer to the complaint

· How a nonparty may intervene in the lawsuit

· When you should amend or supplement a pleading

TESTING YOUR COMPREHENSION

Test your comprehension of Chapter 5 by answering each of the following questions. Circle true or false for each answer. Although the answers may be found in the main text, try to answer each question before referring to the text.

1. T F Under notice pleading the only requirement is that the pleading contain enough information to notify the opposing party of the basis of the claim.

2. T F A party may never plead alternative or inconsistent claims or defenses.

3. T F When drafting a complaint in federal court, a lawyer should rely solely on the client's representation of the facts.

4. T F When a party is represented by a lawyer, service of the complaint may be made on the party's lawyer.

5. T F Unless otherwise ordered, all pleadings should be filed with the court clerk.

6. T F Under Rule 9 of the Federal Rules of Civil Procedure, all allegations can be pleaded generally.

7. T F Under the federal rules, all complaints must contain a prayer for relief.

8. T F Failure to make a timely demand for a jury trial constitutes a waiver of the right to a jury.

9. T F Under Rule 4(a) of the Federal Rules of Civil Procedure, whenever a complaint is filed, the clerk is directed to issue a summons.

10. T F The complaint and summons may be served by any person who is not a party and is at least 18 years old.

11. T F A summons and complaint may be served on an individual by mail.

12. T F Service of a summons and a complaint on a corporation may be made by serving any shareholder of the corporation.

13. T F If a complaint contains redundant, immaterial, impertinent, or scandalous matter, the proper response by the defendant is a motion to dismiss.

14. T F A motion should include a memorandum of law.

15. T F If a complaint is so vague or ambiguous that the defendant cannot respond to it, the defendant may move for a more definite settlement.

16. T F Under Rule 12(b) of the Federal Rules of Civil Procedure, a defendant may raise certain defenses either in the answer or by a motion to dismiss.

17. T F If the defendant decides to respond by a motion to dismiss, the defendant may raise different defenses in several different motions to dismiss.

18. T F An affirmative defense raises matters that are put in issue by the defendant's denial of the allegations in the complaint.

19. T F A defendant may file a counterclaim against the plaintiff within the time the defendant has to answer the complaint.

20. T F A plaintiff does not need to reply to the defendant's counterclaim since it will be assumed that the plaintiff denies all allegations of the counterclaim.

21. T F Impleader is a method for bringing into the action new parties who may be liable to the defendant for some or all of the judgment the plaintiff may obtain against the defendant.

22. T F A thirdparty complaint may be served on the thirdparty defendant without leave of court if done within 10 days of serving the original answer to the complaint.

APPLYING YOUR KNOWLEDGE

Answer the following questions by applying the information you have learned from the main text. If you need more space for some of the questions, use a separate sheet of paper.

1. What are the five format requirements for every pleading? What is the purpose of each requirement?

2. Why must a federal court pleading be signed by one of the party's lawyers? Why must the signing be by an individual and not a law firm? Does your state have a similar rule regarding the signing of pleadings.

3. What is a verified pleading? Why are pleadings in federal court not verified? Are pleadings verified in your state?

4. What is the purpose of Rule 11 of the Federal Rules of Evidence? Does your state have a similar rule?

5. What is a certificate or affidavit of service? Why is it important to attach such a document to the end of the pleading?

6. What are the three essential components of every complaint required by Rule 8(a) of the Federal Rules of Civil Procedure? Is there a similar rule for your state? Identify your state rule and requirements.

7. In federal court, why is it necessary to always include an allegation indicating the basis of federal court jurisdiction? Why would such a requirement not be necessary in state court?

8. In the main text, you have learned the difference between "notice pleading" and "fact pleading." What is the difference? Federal courts generally require "notice pleading." What type of pleading is required in your state court? If your state is a "notice pleading" state, are there any exceptions for certain types of allegations?

9. Both federal and state courts require the use of "counts" in a complaint.

What is meant by the term "count"?

10. What is a "prayer for relief"? Why is it important to draft a prayer for relief carefully?

11. How can a party make a demand for a jury trial? When must the demand for a jury trial by made? Why must such a demand be made so early in the litigation?

12. What does it mean to "toll" the statute of limitations? Why does a complaint "toll" the running of the statute of limitations? Does the filing of a complaint toll the statute of limitations in your state? If not, what more is required in order to toll the statute of limitations.

13. In some states, a summons is a preprinted form that is filled out by the plaintiff and issued by the court. Does your state have such a preprinted form? If not, what are the standard elements that must be included in a summons filed in your state?

14. Why is it improper for a party to a lawsuit to serve the summons and complaint on the defendant? Would it be proper for a husband to serve, on behalf of his plaintiffwife, the summons and complaint on the defendant? Would it be proper for a parent to serve the summons and complaint on behalf of a child? Would it make a difference if the parent is representing the child in court as the child's guardian?

15. What is the 100 mile "bulge" rule? Why does the rule apply only to parties brought in as thirdparty defendants?

16. There are several territorial limits of service of federal court complaints. State courts have similar territorial limits. What are the territorial limits for your state?

17. What is the "Hague Service Convention"? What is the effect of a failure to comply with the Hague Service Convention? Where can you find a copy of the Hague Service Convention?

18. In federal court, service of a summons and complaint must be made within 120 days of filing the complaint. What is the purpose of this requirement? Does your state have a similar rule?

19. What are the appropriate responses that a defendant may make to a complaint filed in federal court?

20. Under the federal rules, a defendant must serve a response within 20 days of service of the summons and complaint. What is the rule in your state?

21. What are the three types of responses that may be made to the allegations in a complaint? Give an example of each response.

22. When is a counterclaim compulsory? What is the effect of the failure of the defendant to bring a compulsory counterclaim?

23. What is meant by a "permissive counterclaim"?

24. What are the differences among a counterclaim, crossclaim and thirdparty complaint? Do these pleadings have the same names in your state? If not, what are each of these pleadings called in your state?

25. Why are come counterclaims compulsory, but all crossclaims are discretionary?

26. Why might a nonparty want to intervene into a lawsuit?

27. Why might a defendant wish to file a thirdparty complaint? Based upon hypothetical number 1, can you think of any nonparties whom Emeralds Catering may wish to file a thirdparty complaint against?

28. What are the general fact requirements for class actions?

29. When is the amendment of a pleading a matter of right? When is leave of court required?

30. What is the difference between an amended pleading and a supplemental pleading?

PROJECTS FOR RESEARCH AND WRITING

Each of the following projects requires you to prepare documents from the information you have learned in the main text. In some instances, you will also need to conduct some basic legal research. Once you have finished each of the projects, place the projects in your litigation guide for future reference.

1. Using hypothetical number 3, draft a complaint on behalf of Mr. Kester against Monroe's Grocery Store. Be sure to include all the proper format requirements. Assume, unless you are instructed otherwise, that Monroe's Grocery Store is incorporated in the State of Nevada, and that the basis for federal court jurisdiction is diversity jurisdiction.

2. Assume that your office is representing Gatsby Realty in hypothetical number 4. Obtain a copy of the proper format for a summons in your state and fill out the summons completely on behalf of Gatsby Realty. Keep the summons in your litigation guide for future reference. If you do not have access to a summons, or if your instructor directs, use the summons on the following page. Refer to the summons in the appendix as a sample.

SUMMONS

_______________Court of _________County

State of ___________________

_________________________

Plaintiff Case No.___________

_________________________

Defendant

_________________________

TO THE ABOVENAMED DEFENDANT(S): You are hereby summoned and required to file with this court and serve upon:

[Name and address of Plaintiff's attorney]

_____________________________

an answer to the complaint which is herewith served upon you within _____ days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

Date:__________________

Clerk of the Court

By_____________________

Deputy Clerk

3. How a summons may be served depends on the entity being served. For each of the entities on the following page, identify how the summons may be served under both the federal rules and the rules of your state. Where the rules of your state are the same as the federal rules, make a notation on your chart. The federal rules for individuals are already filled out on the chart to be used as an example. The chart should be placed in your guide so you will have an diagram for easy reference once you are in practice.

RULES FOR SERVING SUMMONS

ENTITY FEDERAL RULES STATE RULES

Individuals 1. Personally

2. Leaving at residents

with person of suitable

age and discretion

3. On person's agent

4. On outofstate

individuals as required

by federal or state

statutes

Infants and incompetents

Corporations,

partnerships,

and associations

Officers and agents of the

United States and local

governments

4. Under Rule 11 of the Federal Rules of Civil Procedure, a reasonable inquiry must be made into the laws and facts before a complaint may be brought. Assume that Shamrock Enterprises in hypothetical number 2 has contacted your law office to represent them in an action against Doris McFarland. What facts do you think should be investigated before a complaint is filed in order to satisfy Rule 11's reasonable inquiry requirement?

5. After drafting your complaint for Kester in hypothetical number 3 against Monroe's Grocery Store, draft an answer to the complaint. Are there any other Rule 12 responses which might be appropriate? Identify the other responses that may be appropriate and the basis for such responses.

6. Draft as many affirmative defenses as you can think of for Doris McFarland in hypothetical number 2. Make sure that the affirmative defenses are in the proper form.

7. On the following page is a chart of all the appropriate responses a defendant may make to a complaint under Rule 12 of the Federal Rules of Civil Procedure. Indicate on the chart which responses are also appropriate in the courts of your state. Finally, insert on the chart a brief summary of the purpose of each motion. Place the completed chart in your litigation guide to use as a checklist in deciding how to respond to a complaint.

RESPONSES TO A COMPLAINT UNDER RULE 12

Rule 12 Response State Court Purpose

Motion to Strike

_____________________________________________________

Motion for a More

Definite Statement

______________________________________________________

Motion to Dismiss

_____________________________________________________

8. Identify on a separate sheet of paper the requirements for bringing a class action. Can you think of any recent cases involving class actions?

9. Assume that in hypothetical number 2 the plaintiff has alleged that Doris McFarland has no experience as a businessperson and is incapable of running her own business. Using the form on the following page and the example given on page 149 of the main text, draft a motion to strike this allegation from the complaint. If instructed to do so, include with the motion a memorandum of law to support the motion.

MOTION TO STRIKE

_______________ Court of _______________ County

State of ____________________

_________________________

Plaintiff Case No. __________

_________________________

Defendant

______________________________

Defendant ____________________ moves under _______________ for

______________________________. In support of the motion Defendant states:

1. ______________________________

2. ______________________________

Wherefore Defendant ____________________ requests that ______________ __________________________________________________________________________

__________________________________________________________________________

Dated: ____________________

_________________________

Attorneys for

_________________________

10. Using hypothetical number 5, draft a motion to dismiss, including all proper affirmative defenses. Unless otherwise instructed, assume the following additional fact with respect hypothetical number 5: plaintiff served the summons and complaint by leaving a copy of the summons and complaint with Mr. Woods 12-year-old son. The complaint has been filed in federal court.