Chapter 3: Pleading The Case
Pleading well requires mastering subject-matter jurisdiction, personal jurisdiction, and venue before the complaint is drafted, because those doctrinal preliminaries shape every strategic choice that follows about forum, opposing parties named, and claims pleaded.
Chapter 3
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The wisdom of Solomon, accentuated by the legal lore of Coke and Mansfield, could not devise a judgment which this complaint would support.
Huston, J. Wilson v. Thompson
§ 3.1 Preliminaries to Pleading
Lawyers often speak as though the litigation process begins with drafting the complaint (or, perhaps, being retained by the client and then drafting the complaint). This results, one hopes, because they have already mastered the preliminaries to pleading and integrated them into litigation decision making. Law students and new lawyers must normally act more self-consciously regarding these doctrinal and strategic concerns: subject-matter jurisdiction, personal jurisdiction, and venue. Even experienced lawyers must pay careful attention to these matters. For example, in The Buffalo Creek Disaster,^[1]^ which describes a major tort action, the author describes both extensive preliminary investigation and analysis regarding available forums as well as the interrelation between substantive law and pleading strategy.^[2]^
Jurisdiction and venue are doctrinal in that they have developed largely through reasonably complex case law rather than through application of clear statutes or civil rules. These issues also often raise concerns rooted in the U.S. Constitution such as the parameters of federal judicial power and due process. They are strategic in that their resolution often has major implications for the litigation, e.g.: state vs. federal court; particular forum state; opposing parties named; claims pleaded. This section provides an overview of the doctrines and considerations involved. Attorneys facing these issues ordinarily should consult a secondary source focused upon the substantive law of civil procedure as well as controlling case law in the jurisdictions under consideration for the lawsuit.^[3]^
An LLM that can access the law (i.e., cases, statutes, regulations, rules) can assist with researching, identifying, and assessing the issues presented in this chapter. Modern tools can help analyze various facets of jurisdiction, pleadings, and related claims and defenses, all of which should be verified and confirmed. Strategic and tactical decisions remain within the decision and discretionary spheres of the advocate. And that is also you.
§ 3.1.1 Dispute Resolution Forums
Before we go there—to the judicial forum—we need to make sure we recall that there are other forums that resolve disputes besides the famed judicial forum. The two other primary forums are arbitration and administrative hearings.
Arbitration Forums. The parties may agree to arbitrate a dispute, through either a pre-dispute or a post-dispute arbitration agreement. See § 1.8.2. The arbitration organization selected administers the arbitration in accord with its applicable rules. The arbitration award is as enforceable as a civil judgment entered by a judge, after it is confirmed and converted into a civil judgment.
The agreement of the parties determines whether arbitration is the only option available as a forum. Hundreds of millions of contracts between parties include an arbitration clause, and the number of arbitration contracts increases each year. Current doctrine, as reflected in recent U.S. Supreme Court cases, is strongly supportive of enforcement of broadly drafted arbitration clauses.^[4]^ If the parties have chosen arbitration and rejected litigation, any claim or dispute between the parties is resolved through arbitration. If a choice of forum exists, re-read Section 1.8.2 to figure out whether arbitration or litigation is the best bet.
Administrative Law Forums. A wide array of legislative enactments have created an administrative forum to resolve a large variety of disputes. Claims and disputes that are regularly decided by administrative law judges instead of judicial judges include: workers’ compensation cases, unemployment compensation claims, tax disputes, social security claims, welfare claims, implied consent cases, regulatory disputes, utility rate making cases, environmental cases, and other cases based on rules and government regulations.
These cases commonly provide the administrative forum with exclusive jurisdiction over the claim. Some disputes may proceed administratively or in court, providing a party with a choice. For example, discrimination claims often can be brought before an administrative body such as a human rights department or can be brought in court. The choice of where to bring a claim with optional forums may depend upon the type of relief the party wants and its availability in a specific forum.
Online Arbitration Forums. GenAI has enabled the rise of online arbitration forums, where parties submit evidence and arguments for machine-assisted or fully programmatic resolution. Some platforms integrate LLM-backed systems to assist in evaluating claims, analyzing submitted documents, and even drafting proposed awards. These systems may function with or without human oversight. Fully automated forums resolve disputes at lower costs and faster speeds, but some litigants will prefer human arbitrators for nuanced decision-making or cases involving credibility assessments. As AI-driven dispute resolution evolves, parties will need to weigh efficiency and cost against perceived fairness and transparency.
§ 3.1.2 Subject-Matter Jurisdiction
Subject-matter jurisdiction is the power of a court to hear and decide a case—power over the dispute. Courts derive this authority from constitutional provisions and legislative enactments. To properly process a lawsuit, a court must have proper subject-matter jurisdiction.
Ordinarily, this is not a problem in state court, as state courts are usually considered courts of general jurisdiction: they will hear and decide any legally cognizable dispute. State courts often have divisions with more particular and circumscribed authority, e.g.: small claims court, housing court, probate court, family court. The respective confines of each court’s authority must be ascertained and observed by counsel in order to avoid dismissal without prejudice.^[5]^ Although a claimant may be “bounced” out of a particular state court, some forum in the state judicial system ordinarily will hear the case if it states a recognized legal claim and if the defendant is subject to the personal jurisdiction of the court—that’s why they’re called courts of general jurisdiction.
By contrast, federal courts are courts of limited jurisdiction—they may hear and decide only “cases and controversies” coming within their authority conferred by Article III of the Constitution and federal statutes. Normally, this requires that the claim “arise” under federal law (federal-question jurisdiction) or that the dispute involve opposing parties from different states (diversity jurisdiction).
§ 3.1.2(A) Diversity Jurisdiction
Diversity jurisdiction, codified at 28 U.S.C.A. § 1332, requires that plaintiff and defendants be citizens of different states and that the matter in controversy exceed the sum or value of $75,000, not including or counting interest claimed on the amount at issue or court costs or counsel fees claimed by the plaintiff. The federal court determines its subject-matter jurisdiction by examining the face of plaintiff’s complaint. If the complaint as drafted claims breach through nonperformance of a contract with only $75,000 face value, the jurisdictional amount has not been met. However, if the dispute involves a less rigorously quantifiable amount, such as pain and suffering from an automobile accident or lost business revenues from construction delays, courts generally find the jurisdictional amount satisfied if the plaintiff has pleaded in good faith and the court cannot say with certainty that a jury would award $75,000 or less to a successful plaintiff. Pursuant to the Supplemental Jurisdiction statute, 28 U.S.C. § 1367, multiple claims that individually fall below the jurisdictional amount can be heard along with one or more claims satisfying the jurisdictional amount if the matter is the same case or controversy. But a batch of claims under the amount cannot be combined to satisfy the jurisdictional amount.
“Citizenship” within the meaning of 28 U.S.C.A. § 1332 is a term of art. It does not refer to patriotism or civic virtue. Rather, it means “domicile,” a concept also encountered in conflict of laws courses. A person’s domicile is the political jurisdiction and state that serves as a permanent home. We are all born not only with parents but domiciles as well. However, unlike parents, domiciles are subject to change simply by moving and expressing through intent and conduct reflecting a desire to treat the new domicile as a permanent home.
A person has only one domicile, usually her or his home. It connotes something more than residence. The expectation is that, wherever we roam, we intend to return to our respective domiciles (sort of like homing pigeons). The domicile continues permanently until there is an intentional change to another state. For example, a college student attending school in a state different than her domicile of birth or upbringing (i.e., Mom and Dad’s house) is generally presumed to retain the former domicile but this presumption can be rebutted by evidence that the student has moved to the new state “permanently” (i.e., for the foreseeable future) with the intent to remain.
Pursuant to 28 U.S.C.A. § 1332(c)(1), corporations are considered citizens both of the state where incorporated (where it is chartered) and the state where the corporation has its principal place of business. There had been a debate about how to determine a principal place of business. The U.S. Supreme Court clarified the picture, adopting a “nerve center” approach and holding that under [§ 1332](https://www.westlaw.com/Document/N6A5002403C8911E18753CAB8A07CA78D/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N6A5002403C8911E18753CAB8A07CA78D/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), the state in which corporate management directed, controlled, and coordinated company business was its principal place of business for purposes of diversity jurisdiction.^[6]^ Normally, the Court noted, this will be the corporate headquarters, resulting in a relatively simple application of the test from which courts should depart only if the corporate headquarters is a façade (e.g., a post office box or an office used for occasional meetings). In more complex cases, there may be some question as to the locus of corporate control, which can make the establishment of jurisdiction a matter of fact finding by the trial court. The Supreme Court disapproved use of business volume or general field operations as the test for principal place of business because it would as a practical matter make many nationwide business automatic citizens of California by virtue of its large consumer population even though the company headquarters was on the opposite side of the country.
For purposes of this aspect of diversity jurisdiction, this approach presumably applies to all corporations, including small family held corporations, subchapter S corporations (a creature of the tax code), and limited liability corporations. However, unincorporated associations such as partnerships are subject to a different standard that makes establishment of diversity jurisdiction much more difficult because such groups are considered to have citizenship in any state in which one of the partners or members is domiciled. For example, political parties are citizens of every state in which one or more individual members is a citizen. The practical effect is to make it nearly impossible to establish the “complete diversity” required to exercise subject matter jurisdiction under [§ 1332](https://www.westlaw.com/Document/N6A5002403C8911E18753CAB8A07CA78D/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N6A5002403C8911E18753CAB8A07CA78D/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).
Ever since Chief Justice John Marshall’s opinion in Strawbridge v. Curtiss,^[7]^ 28 U.S.C.A. § 1332 has been interpreted to require complete diversity: all the plaintiffs and all the defendants must be from different states. If even one of several defendants is a citizen of the same state as even one of several plaintiffs, there is no complete diversity and the court lacks diversity jurisdiction. Limited partnerships, partnerships, and unincorporated associations lack complete diversity if even a single member is a citizen of the same state as an opponent. One significant exception to the complete diversity requirement exists in the Class Action Fairness Act (“CAFA”), which grants federal courts jurisdiction over certain class actions when only “minimal diversity”—when at least one plaintiff’s citizenship is different from at least one defendant’s—is present.^[8]^
Where diversity jurisdiction exists, the court possesses ancillary jurisdiction to hear and decide claims between the parties that would not, standing alone, meet the criteria for federal jurisdiction. Ancillary or supplemental jurisdiction (the term used in the relevant statute) also permits federal courts to adjudicate third-party claims even if the third-party defendant is not diverse from the third-party plaintiff. However, if the necessary diverse parties are dismissed from the case, supplemental jurisdiction is not sufficiently broad to permit the court to decide claims still at issue between the remaining nondiverse parties.^[9]^
§ 3.1.2(B) Federal-Question Jurisdiction
Unlike, diversity jurisdiction, which is party-centered (i.e., litigants from different states can raise legal issues with no implications for federal substantive law), federal-question jurisdiction is claim-centered. Federal question jurisdiction exists only when the plaintiff’s claim arises under federal law. Courts have interpreted this part of § 1331 to require that federal law create the cause of action or that federal law be an essential ingredient of the cause of action. Courts determine the existence of federal-question jurisdiction by examining the face of plaintiff’s complaint but will disregard surplusage or material that is not part of a “well-pleaded” complaint.^[10]^ Federal-question jurisdiction does not exist even where federal law provides the basis for a defense or the criteria for resolving an issue in the case. The court will not be influenced by a complaint that anticipates invocation of federal law in the answer or other responses to the complaint.^[11]^ Rather, federal law must create the cause of action.^[12]^
However, in addition to general federal-question jurisdiction under 28 U.S.C.A. § 1331, several statutes provide for federal jurisdiction over specific matters (e.g., civil rights violations, review of agency orders) or where the government is a party. In most situations satisfying the requirements of federal jurisdiction (all diversity cases and most federal-question cases), the federal and state courts have concurrent jurisdiction (rather than exclusive federal jurisdiction). That is, either court has judicial power to hear the case. However, some federal statutes require that certain actions be tried only in federal court.^[13]^ Unless the case is one of exclusive federal jurisdiction, the plaintiff may file either in state court or in federal court.^[14]^
The existence of proper federal-question jurisdiction over a claim in plaintiff’s complaint often permits the court to hear all other claims plaintiff has against the defendant(s), even where the other claims standing alone would not qualify for federal jurisdiction. Historically, this was referred to as “pendent” jurisdiction. More recent federal law has changed the terms. What was known as pendent jurisdiction (in federal question cases) and ancillary jurisdiction (in diversity cases) are now deemed “supplemental” jurisdiction under the statute.
The test for the exercise of judicial power to hear state claims in a federal court case based on federal question jurisdiction is whether the non-federal claims and the federal claim(s) “are so related” that “they form part of the same case or controversy.” (See 28 U.S.C. § 1367.) The verbal test prior to the enactment of the statute remains good law and expresses the concept as whether the federal and state claims arise out of a “common nucleus of operative fact."^[15]^ If they do, the court can hear all claims. However, supplemental/pendent claim jurisdiction is a doctrine of discretion. Thus, if the lone federal claim is dismissed prior to trial, the court may dismiss the claims arising under state law (without prejudice so that plaintiff may refile in state court) or may, less commonly, retain the state law claims for trial (perhaps if the statute of limitations has expired).
A variant of pendent claim jurisdiction is pendent party jurisdiction, which proved doctrinally complex and was resisted by the Supreme Court. In pendent party jurisdiction, a party in a case properly before the court asserts a claim against a new party outside the litigation but without the ability to independently satisfy diversity or federal-question jurisdiction as to that party or claim. Like pendent/supplemental jurisdiction, pendent party jurisdiction is constitutional because Article III of the Constitution confers federal judicial authority over entire “cases and controversies.” However, in Finley v. United States,^[16]^ the Court rejected an attempted assertion of pendent party jurisdiction in a case arising under the Federal Tort Claims Act,^[17]^ stating that it would not read jurisdictional statutes broadly to permit pendent party jurisdiction because this would result in the addition of an entirely new party to the litigation (as opposed to merely permitting additional claims against a party that was already involved in the joy of federal court litigation).
In Finley, the Court implicitly said that if Congress wants the courts to assert pendent party jurisdiction, it must state so clearly so that even a strict interpretation of the jurisdictional statute would support such an exercise of jurisdiction. Taking the Court’s seeming invitation, Congress did just that and provided that in federal-question cases pendent/supplemental jurisdiction “shall include claims that involve the joinder or intervention of additional parties."^[18]^ However, this broad pendent/supplemental party jurisdiction is not available in actions founded solely on diversity jurisdiction or by litigants seeking joinder or intervention if “exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of [section 1332](https://www.westlaw.com/Document/N6A5002403C8911E18753CAB8A07CA78D/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N6A5002403C8911E18753CAB8A07CA78D/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)"^[[19]](#footnote-19)^ (e.g., where the pendent party is non-diverse or the claim against it is for $75,000 or less).
In addition, the statute specifically gives the courts discretion to refuse to exercise supplemental jurisdiction over state claims in several instances.^[20]^ Federal courts also have broad discretion to “abstain” from hearing a claim or case for other reasons discussed in Sections 4.5.6 and 4.5.7.
§ 3.1.3 Personal Jurisdiction
In addition to a court’s having jurisdiction over the subject matter of a lawsuit, the court must also have jurisdiction over the defendant. Personal jurisdiction requires that there exist some relationship between the judicial forum and the defendant. This relationship typically includes some nexus or contact the defendant voluntarily has within the territorial jurisdiction of the court. A defendant will only be subject to the jurisdiction of a court if there exists some connection between the defendant and the forum. Notions of due process, fair play, and substantial justice require minimum contacts.^[21]^ Personal jurisdiction will usually be based on one or more of the following facts:
The defendant resides within the jurisdiction.
The defendant is incorporated, has a place of business, does business within the forum, or is licensed by the forum.
The defendant has expressly consented to jurisdiction, e.g., in a contract provision or as a condition of approval to do business in the state.
The defendant has impliedly consented to jurisdiction, e.g., the defendant owns property in the state.
A statute imposes jurisdiction over the defendant, e.g., a non-resident motorist who drives through a state may become subject to the jurisdiction of that state.
The defendant voluntarily appears in the state and is personally served.
The defendant has established sufficient contacts with a state.
Section 4.5.2 explains some of these factors in more detail.
“Long-arm” statutes enacted by each state may provide a court with jurisdiction over non-resident defendants who have a single or infrequent contact with a state. These statutes typically confer jurisdiction over a defendant who commits a tort, executes a contract, owns property, or benefits from a state. Federal courts sitting in diversity jurisdiction cases apply the service rules of the forum state in addition to the service rules set forth in Federal Rule 4. Both state and federal courts may have both proper jurisdiction over a defendant and the means to obtain service on the defendant.
Fed. R. Civ. P. 4 provides for “last resort” national personal jurisdiction in cases of federal substantive law by service upon defendants who have sufficient contact with the United States even if they are not sufficiently linked enough to any single state to be subject to that state’s general jurisdiction. In addition, [Rule 4](https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) specifically authorizes quasi-in-rem. jurisdiction under limited circumstances.
Jurisdiction may also be obtained through in rem or quasi-in-rem jurisdiction. In rem jurisdiction provides a court with jurisdiction over property within its territorial jurisdiction. For example, a court has jurisdiction to determine the ownership of real property or personal property located within its boundaries. Quasi-in-rem jurisdiction provides a court with jurisdiction over a matter not related to the property but involving the owner of the property within its jurisdiction. For example, a resident of a state may claim quasi-in-rem diction over a personal matter with a non-resident who owns property in the state. In rem jurisdiction is constitutionally sound and fair. Quasi-in-rem jurisdiction often involves a constitutional question of whether there is a sufficient connection between the defendant and the judicial forum for jurisdictional purposes.^[22]^
§ 3.1.4 Venue
Jurisdiction refers to the power of a judicial system to hear a case. Venue refers to the place of trial within that judicial system. For example, any federal district court may have jurisdiction to hear a case, but venue may be proper in only certain specific districts. Venue is largely a matter of convenience. States usually have venue statutes or rules that define proper venue as the place where the defendant resides, where the cause of action arose, where the defendant is doing business, where the defendant has an office, or where the plaintiff resides. In federal cases, including federal-question and diversity cases, venue is proper where all the defendants reside or where the cause of action arose. If the defendant is a corporation, venue is proper whenever the corporation is subject to personal jurisdiction.^[23]^
These factors may be identical to the factors that determine proper subject matter and personal jurisdiction, or they may differ. Jurisdiction and venue must be separately analyzed, and the appropriate factors applied separately. If a court does not have jurisdiction the case must be dismissed. If a court does not have venue that court may be able to transfer the case instead of dismissing it.^[24]^ A state court of general jurisdiction will usually be able to transfer a state case to the proper state judicial district. Likewise, a federal judge will be able to transfer a federal case to the federal district that has proper venue.
Venue often involves judicial discretion. A court may exercise the doctrine of forum non conveniens and decide not to hear a case because it would be fairer to the parties, more convenient for the witnesses, and more efficient if the case were heard by another court. However, the general rule is that the plaintiff’s choice of forum will not be lightly disturbed unless compelling facts exist in favor of another forum.^[25]^ Federal courts may transfer a case to a more convenient forum rather than dismiss it.^[26]^
For venue purposes, a claim may arise in more than one jurisdiction.^[27]^ “Venue by necessity” also exists which provides that venue is proper in any “judicial district in which any defendant may be found if there is no district in which the action may otherwise be brought."^[28]^
§ 3.1.5 Jurisdiction and Venue in Other Forums
The concepts of jurisdiction and venue in arbitration proceedings are very simple. Because arbitration is a consensual proceeding, the parties have agreed to arbitration jurisdiction—that is, they have agreed that the arbitrator has the power to decide their case. Similarly, they have also usually agreed to venue (failing to consider the location of the forum as well as the type of forum is arguable malpractice by the attorney drafting an arbitration or other forum selection clause). Usually, the rule of the arbitration organization or the agreement of the parties determines the location of the hearing, but specific party agreements are usually honored by dispute resolution organizations. For example, the hearing may be held in the community where the respondent resides or does business, as provided by rule or explicit agreement.
An administrative forum may have exclusive or concurrent jurisdiction with a judicial or arbitration forum. The applicable statute will state whether jurisdiction is exclusive. If unstated, the parties may have a choice. For example, some tax disputes may be brought before an administrative agency or a court. For another example, some employment disputes may be decided by an administrative judge or by an arbitrator. Administrative provisions also commonly determine venue. The hearing is typically held where the administrative agency conducts hearings.
Other alternative forums, such as mediation or hybrid forms of alternative dispute resolution (ADR), also exist. Like the arbitration forum, these entities usually have “jurisdiction” and a venue location because of a clause in a contract or another form of consent by the parties rather than by statute or the coercive power of the state.
§ 3.2 Pleadings in General
Modern pleading practice provides a simplified approach to the initiation of litigation.^[29]^ The modern procedures, commonly referred to as “notice pleading,” are intended to provide just that: notice to the opposing party of the pleader’s claims or defenses. Although recent Supreme Court cases have required that complaints present a “plausible” case for recovery (assuming the facts alleged are true), the elements of a cause of action do not need to be pled, nor do evidentiary facts necessary to prove a claim or defense. A complaint should advise the defendant of the major facts alleged, the nature of the legal claim or claims asserted, and the relief requested. An answer advises the plaintiff of the defendant’s position with respect to the claims and may include affirmative defenses. If the defendant wants to pursue a counterclaim, it must be pled as any other claim. Discovery is intended to permit a party to obtain detailed information about the claims and defenses and the facts supporting the parties’ positions.
§ 3.2.1 Federal and State Pleading Provisions
In the federal courts, the general rules of pleading content and format are for the most part set out in Rules 7 through 15. Rule 7 outlines the pleadings allowed and the proper format for motions. Rule 8 establishes the general rules of pleading. Rule 9 addresses pleading special matters. Rule 10 establishes the technical form of pleadings. Rule 11 addresses the ethical obligations of counsel in signing pleadings. [Rule 12](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), in addition to governing attacks on the pleadings by motion (a subject discussed in Section 4.1), establishes the 21-day time period for responding to a complaint.^[30]^ Rule 13 governs counterclaims and cross-claims. Rule 14 addresses third-party practice. Rule 15 controls amendments to pleadings.
Although it is important to be aware of all of the civil rules, because any of them may affect a particular pleading or motion, knowledge of these nine rules and perhaps a few others will normally enable a lawyer to place a claim in suit, answer a complaint, bring in additional parties, and generally act like a lawyer, at least in form if not substance. In addition to the above rules, [Rule 4](https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NBC051130B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) concerning the form and content of the summons and service of process will prove helpful, at least to plaintiff’s counsel. Rule 6 concerning computation of time often proves a helpful and necessary way to determine deadlines. Rules 19 to 25 govern the substantive aspects of adding, changing, or deleting parties to a lawsuit.
State courts usually provide similar rules governing these aspects of litigation. Many state rules today mirror the federal rules. However, many state rules are also somewhat stricter and more archaic than federal rules, which have moved away from pleading formalism. This book will generally discuss pretrial procedure in the context of the Federal Rules, occasionally noting significant areas in which state procedure diverges from federal. However, each practitioner must know the particular pleading standards, including the civil rules of a jurisdiction.
§ 3.2.2 Pleading Defined
Rule 7(a) recognizes only six pleadings—the complaint, the answer (including any counterclaims or cross-claims), a reply to a counterclaim, a reply to a cross-claim, a third-party complaint, and an answer to a third-party complaint. Nothing else counts as a pleading, no matter how common or important it might be. Although Federal Rule 7(b) discusses motions, a motion is not technically a pleading within the meaning of the rules. This distinction between pleadings and motions is not, however, of great moment except in the case of deadlines that are measured according to the close of the “pleadings.” For example, under Rule 38, a party seeking a jury trial must demand a jury trial within fourteen days of service of the last “pleading” raising a jury trial issue. Rule 7(b) provides that the format and signature requirement of pleadings applies to motions as well.
§ 3.2.3 “Notice” Pleading
In general, the rules on their face tell the attorney all that is required for basic pleading. Prior to the adoption of the federal rules in 1938, pleading was often highly stylized, governed by common law, rigid codes, or local custom. Common law forms of pleading typically required a party to state with specificity the details of a claim and to conform to very technical, formalistic rules. The failure of a party, however inadvertent or minor, to comply with these rules often resulted in an adverse decision. Courts and critics became increasingly intolerant of the injustice this formal system created.
The federal rules significantly simplified the requirements of pleading. A “simple, concise, and direct” statement is all that is required. (“Short and plain” was the formulation in Rule 8 prior to the recent restyling of the rules.) The Supreme Court case of Conley v. Gibson^[31]^ established that the courts were to read the rules as written rather than require greater specificity or information or legal efficacy in a pleading than required by the federal rules. In Conley, the Court held that a plaintiff’s complaint should not be dismissed for failure to state a claim unless it was beyond doubt from the face of the complaint that the plaintiff could prove no set of facts entitling it to relief. This standard has arguably meant that [Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motions to dismiss for failure to state a claim would be granted only when the plaintiff pursued a cause of action not recognized in existing law.
In Bell Atlantic Corp. v. Twombly, the Court articulated a standard that rejected Conley’s “no set of facts” language as “best forgotten as an incomplete, negative gloss on an accepted pleading standard."^[32]^ The Court’s replacement contribution provides: “[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed."^[33]^ As a practical matter, post-Twombly, attorneys should plead with greater detail than under the Conley regime that tended to permit.
Following Twombly^[34]^36* *is the Court’s Ashcroft v. Iqbal^[35]^ decision. In Iqbal, the Court dismissed a “war on terrorism” detainee’s claim against the Attorney General and FBI Director in which the complaint alleged that these individuals had been involved in the decision to wrongfully imprison him and send him abroad where he was allegedly mistreated. The Supreme Court dismissed the complaint, holding that plaintiff had not stated a sufficiently plausible scenario for involvement of the nation’s highest law enforcement officials in the decisions adversely affecting the plaintiff.
Iqbal, like Twombly, thus raises the question of whether the notice pleading regime of Fed. R. Civ. P. 8(a) has been amended de facto by the Court. The short answer, as we see it, is that what might be termed “enhanced” notice pleading remains alive and well for standard issue, run-of-the-mill cases (breach of contract, basic torts, property disputes) but that where a claim is novel, disfavored, or counter-intuitive, courts may assess whether the claim is sufficiently plausible to withstand a motion to dismiss and require the defendant to submit to the broad discovery provided under the civil rules.
This suggests that counsel as a prelude to pleading must give serious consideration to pleading in all cases and should pay particular attention to whether the type of action contemplated (e.g., a major antitrust claim or the contention that the highest law enforcement officials in the land violated constitutional rights) is sufficiently contentious that it will trigger Twombly/Iqbal-like scrutiny by the courts. If so, counsel must then consider whether these problems can be surmounted by greater care in pleading and whether counsel and client still want to press forward knowing that more resources than usual must be expended at the pleading stage if the claim is to survive. At a minimum, more investigation than usual may be required so that the complaint can set forth more detailed, verifiable facts that make an initially controversial claim look more plausible than would first be the case.
Notwithstanding the results in Iqbal, the Court was careful to state that it remains the rule that allegations in the complaint are assumed to be true but that even when the factual assertions are not questioned, a court may consider whether the asserted facts make the legal contentions not merely possible but sufficiently plausible to allow the case to proceed.
Lawyers, particularly those with novel, disfavored, or counter-intuitive claims, must surmount Twombly/Iqbal in order to survive a [Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motion to dismiss for failure to state a claim. This requires that the fact pleading be carefully done so that it is concrete rather than conclusory (because conclusory factual allegations may be disregarded) and then to argue that the legal assertions of culpability or liability based on the fact assertions are not so implausible as to require rejection at the outset of the case. More specifically, the Iqbal Court stated:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. This plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of “entitlement” to relief.”
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation”). [Rule 8](https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a claim that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged . . . the pleader is not entitled to relief.^[36]^
Certainly, the distinction between a plausible and an implausible claim lies in the eye of the beholder and can lend itself to result-oriented judicial activism in which courts supplant the traditional role of jurors in resolving disputed facts. A practical effect of Twombly/Iqbal is to turn Rule 12(b)(6) motions into early motions for summary judgment (see § 12.3). This requires that counsel and client think longer and harder about whether to pursue a claim and, if pursuing, how to efficiently expend the greater resources that may be required than was the case prior to Twombly/Iqbal.
An insufficient claim “is implausible when it is not supported by factual allegations that address the elements of the claim."^[37]^ The Twiqbal standard does not prevent a plaintiff from alleging facts based on information and belief.^[38]^ Further, the Twiqbal standard applies to answers, affirmative defenses, counterclaims, cross-claims and replies as well.
Some claims must, by rule or statute, be pled in greater detail. Fed. R. Civ. P. 9 requires certain matters to be pled in greater detail. Fraud, required by Fed. R. Civ. P. 9(b) to be pled “with particularity,” is a frequently encountered example of a more stringent requirement, and fraud cases are frequently dismissed for pleading deficiencies, although most courts allow an opportunity to replead if a party both seeks that option and appears able to do that. The Private Securities Litigation Reform Act imposes similar, arguably more exacting, particularity requirements on securities fraud complaints.
The basic approach of the federal rules and courts is to permit pleading that fulfills the basic requirements of notice and framing. Fact development is left for disclosure and discovery. Legal development is left for motion, hearing, or trial. Although there remain tricky technical areas and traps for the unwary, the lawyer who reads the rules literally and acts accordingly will seldom lose a case on a technicality or technical knock-out.
When in doubt, reading the rule should resolve the doubt. Proper pleading begins there. Although some states have more restrictive pleading practices, these, too, are increasingly found in the state civil rules and not hidden in obscure statutes or cases. Where questions arise that are not resolved by the language of the rules, reference to the annotated rules of the jurisdiction or a treatise will usually resolve the problem.
It is also important to remember, however, that the requirement for alleging the facts to assess the “plausibility” of the claims asserted does not require prolixity. Indeed, courts regularly reject pleadings that are unduly complex, verbose, or prolix. The rules both authorize fairly concise pleadings, and require them as well, within some limits.^[39]^ One repeated failing is the incorporation of all earlier allegations of the complaint, many of which could not apply to the claims asserted in a particular count of the pleading. Similarly, assertion of a claim against “all defendants” where there is no plausible way for the claim to be asserted against many of them is inherently improper. Courts do not welcome these “shotgun” pleadings.^[40]^
GenAI-Augmented Pleadings. LLM-backed legal tools can help attorneys draft pleadings that more fully satisfy Twombly/Iqbal requirements by ensuring that complaints include sufficient factual detail to establish plausibility. Those tools can analyze legal claims asserted, identify the necessary elements under applicable law, and compare them against factual allegations to detect potential deficiencies (which lawyer and client can collaborate to fill). Modern tools can also cross-reference jurisdiction-specific standards, highlighting any heightened pleading requirements under [Rule 9(b)](https://www.westlaw.com/Document/N32A6F0B0B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N32A6F0B0B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) or other statutory mandates. By structuring pleadings to align with these requirements, LLMs can help attorneys elicit and integrate essential factual details from clients, reducing the risk of dismissal and improving the pleadings’ clarity and persuasiveness.
§ 3.2.4 “Pleadings” in Other Forums
The documents involved in initiating and defending arbitration cases are similar to litigation pleadings, but there are differences. The applicable arbitration rules explain what documents need to be filed and served to bring and defend a case.
The document necessary to start an arbitration is often called a claim and the initiating party a claimant. Some cases are begun by a petition, with the initiating party known as the petitioner. Other initiating documents are called complaints, and others are forms which are completed by the initiating party. Documents which need to be served by the defending party are often called responsive documents, with the defending party known as the respondent. Other defending documents may be called answers or are forms completed by the defending party. Arbitration rules typically allow counterclaims and third-party claims, by the same names. In some administrative cases, there are no mandatory responsive documents. In most administrative cases, counterclaims or third-party claims are not permitted.
The remaining sections of this chapter explain pleading elements essential to litigation. Many of these same elements apply to arbitration and administrative documents, and some do not. Significant differences will be described. In specific cases, the applicable arbitration code of procedure provisions or the administrative rules will explain how claim and response documents are to be composed.
§ 3.3 The Complaint
§ 3.3.1 Functions of the Complaint
Initiating Litigation. First and foremost, the complaint starts the litigation. In federal court, the action commences when the complaint is filed with the clerk of court. In some states, service of the complaint upon the defendant begins the action. The commencement date of the lawsuit is important for two reasons. First, the date on which the action was begun determines whether the plaintiff has met the applicable statute of limitations. Second, the commencement date determines other important deadlines in the lawsuit such as the time in which to answer or otherwise plead or when the matter will be set for a pretrial conference.
Providing Notice of Claims. The complaint also places the defendant on notice of the plaintiff’s claim. Notice is the measure of the complaint’s sufficiency—does the pleading put the defendant on sufficient notice of the nature of the claims? Normally, this comes as no surprise to the defendant, who has probably already received phone calls or a demand email or letter from the plaintiff or counsel. Often, the parties have engaged in settlement discussions before futility prompts litigation.
Providing Notice of Issues. The complaint also frames the issues of the litigation, setting forth the subject matter (e.g., facts, transactions, witnesses) of the dispute and the legal claim arising from it. If the complaint alleges five claims for relief, five legal battles will be fought. If plaintiff alleges only the perceived strongest claim, this defines the legal battleground. Similarly, counterclaims, cross-claims, and third-party complaints will establish other issues in the case. In framing the issues, the complaint (as well as other pleadings) need not be internally consistent regarding the relief sought. Rule 8(d) specifically authorizes pleading in the alternative. This permits the plaintiff to plead one legal claim based upon a particular construction of the facts while pleading an alternative legal theory of relief based upon different facts. For example, the plaintiff may allege negligence in one paragraph and allege in another that the injury was intentional.
Providing Notice of Relief Sought. The complaint, as part of its definition of issues, states the relief sought by the plaintiff. Each complaint must contain a demand for judgment.^[41]^ The complaint thus serves the essential function of putting the plaintiff on the road to rectifying an unhappy situation. Whether the plaintiff’s complaint seeks a declaratory judgment, an injunction, an accounting, compensatory damages, punitive damages, reopening of a previous case, or other available relief, the complaint sets parameters for the future conduct of the litigation.
Defining Scope of Disclosure and Discovery. In defining issues, the complaint also defines the permissible scope of discovery. Rule 26 requires automatic disclosure of supportive information and makes relevant for discovery purposes any matter related to a claim or defense (see § 5.3). The issues raised in the complaint and responses to the complaint establish the scope of automatic disclosure and discovery in the action.
Disclosure and discovery are also affected by who is named as a defendant in the complaint. Rule 33 interrogatories (Chapter 7), Rule 34 requests for production of documents (Chapter 8), and Rule 36 requests for admissions (Chapter 10) can be addressed only to parties in the litigation. Depositions may be taken of parties and non-parties, although non-parties must be subpoenaed in order to compel their attendance (Chapter 6). Naming a person as a party may therefore be a wise tactical move because it may require disclosure and permit discovery that would otherwise not be required or readily obtainable. Asserting a frivolous or meritless claim for this reason is not proper, however.
Seeking Discoverable Information. The complaint itself may function as a discovery device. Counsel may draft the complaint to attempt to “flush out” the defendant’s legal and factual position in the litigation through particularized or selective pleading. When plaintiff’s counsel goes beyond the notice pleading required under the rules, this often indicates a complex case (requiring a detailed complaint to adequately inform the defendant and the court) or an effort to pin down the opposition by forcing the defendant to admit or deny a number of specific averments. By doing this, counsel appropriately makes the complaint a type of early request for admissions.
Posturing for Settlement. The complaint may also be used as something of a settlement demand or “brochure” making a case for settlement because of the supposed strength of the claim as reflected in the complaint. Where a complaint is quite detailed, this is often part of the plaintiff’s agenda in pleading. Of course, allegations are not facts. Many lawyers prefer to keep the complaint short and sweet (per [Rule 8](https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)) and bargain for settlement by actually preparing a real settlement brochure than includes persuasive documents, records, photos, and expert reports.
Surviving a Motion to Dismiss. The information contained in a complaint will be considered by the court if the defendant brings a motion to dismiss under Rule 12 for failure to state a claim upon which relief may be granted. It is advisable for a plaintiff who anticipates that a defendant will bring such a motion to draft the complaint with sufficient detail to establish a claim without any doubt. If the substantive law governing the claim is clear, it may also be effective to use the phrasing of the relevant case or statute in stating the claim. For example, if a statute applies to claims for punitive damages and permits the recovery of punitive damages for conduct that is “willful and malicious,” it is wise to use that language in the complaint.
LLMs can expedite the complaint-drafting process by generating well-structured initial drafts based on the jurisdiction’s cases, regulations, rules, and statutes. By analyzing legal precedent and jurisdictional requirements, GenAI legal tools can suggest precise language that aligns with pleading standards, reducing the risk of dismissal for insufficient factual allegations. LLMs can also flag potential procedural defects, such as jurisdictional issues or statute of limitations concerns, ensuring the complaint meets all necessary legal requirements before filing.
LLM-backed** tools can also enhance the complaint’s clarity and sufficiency by identifying missing legal elements and factual gaps. By analyzing prior complaints in similar cases, LLMs can suggest refinements to strengthen notice pleading. Additionally, GenAI tools can evaluate alternative pleadings for consistency, ensuring each theory of liability is distinct yet complementary. When seeking specific relief, AI can analyze past cases to refine damages demands, also suggesting support from statutes or caselaw. This analytic capability can help lawyers anticipate defenses or counterclaims, allowing for a more strategically framed complaint. **
§ 3.3.2 Timing of the Summons and Complaint
A civil action usually comes into being when the complaint is filed with the court clerk or administrator. The plaintiff’s attorney prepares a summons to be signed by the clerk or administrator and served with the complaint. State practice varies. In some states, the summons can be issued and signed by the plaintiff’s attorney. An adequate summons for common cases is contained in former Official Form 3 of the Federal Rules of Civil Procedure (now formally abrogated, but still a useful model):
| United States District Court for the __________ District of __________ |
|---|
| A B, Plaintiff |
| v. |
| C D, Defendant |
| v. |
| E F, Third-Party Defendant (Use if needed.) |
| Summons |
| To name the defendant: |
| A lawsuit has been filed against you. |
| Within 21 days after service of this summons on you (not counting the day you received it), you must serve on the plaintiff an answer to the attached complaint or a motion under [Rule 12 of the Federal Rules of Civil Procedure](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). The answer or motion must be served on the plaintiff’s attorney, _______, whose address is _______. If you fail to do so, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. |
| Date __________ |
| Provisions of Federal Rule 4 also provide for a “waiver of service” procedure (Rule 4(d)) and two official forms for requesting or waiving service (Forms 1A and 1B, respectively). The penalty for refusing to waive service when one is properly subject to the court’s jurisdiction is payment of plaintiff’s service costs. Rule 4 also addresses service in foreign countries and provides for nationwide service of process. |
An action must be commenced before the applicable statute of limitations has run. Determining this date may be relatively straightforward or may involve complex questions of equitable tolling. For example, if an adult plaintiff-to-be is hit by another automobile driver on August 13, 2022, at the Minnesota Twins game, and the statute of limitations is two years, plaintiff had best place the matter into suit by August 13, 2024. The time may be extended if the plaintiff was younger than 18 (the age of majority) or under some disability whereby the running of the limitations period was tolled, but before relying on tolling the lawyer must be certain that it applies.
A less rigid timing question concerns when to resort to litigation. Some statutory causes of action require that the plaintiff first make a demand for compensation upon the defendant-to-be before commencing litigation. For example, before a party may sue a city or county in many states the party must first serve a notice of claim upon the governmental entity. These notice of claim provisions frequently require the notice of claim to be served on the governmental entity within a short period of time after an injury. Even where this is not required, a demand letter or email or at least phone negotiation usually is good practice.
The best rule of thumb in these situations is to confer with the client and adopt a negotiating position and an acceptable bottom line before approaching the opposition and requesting satisfaction. Depending upon the opponent’s reaction, alternative approaches include continued talking, getting more strident, making a written demand, or drafting, filing, and serving the complaint. Many defendants won’t settle without being sued, but a demand may be useful to convince the client that litigation is necessary to obtain relief. Occasionally, where the plaintiff has a very strong case or the defendant faces a potentially large verdict (as in case of a severe personal injury), or faces punitive or exemplary damages (as in an antitrust claim), or a rash of suits after a first lawsuit draws attention (as in securities fraud cases), the defendant may wish to settle silently and quickly without putting the plaintiff to the trouble of suit. Usually, this only happens in fairy tales or to the big gunners of the plaintiff’s bar, a group from which you are presumably excluded, at least for now, by virtue of having purchased this law-school text.
The timing of arbitration and administrative claims involves similar concepts to those expressed in this subsection. Applicable procedural rules determine timing deadlines. Statutes of limitations that apply to litigated cases usually also apply to arbitration cases. Administrative law cases often have a shorter statute of limitation within which a claim must be filed, which limit is contained in the authorizing legislation.
§ 3.3.3 Proper Forum
The judicial forum, at least initially, can be whatever the plaintiff wants. To name the court in the caption and file the complaint there effects a choice of forum. Of course, if the lawsuit has no business being in that jurisdiction, it will probably not stay there. Some clerk’s offices may even refuse to accept a complaint for filing if it contains no reference on its face to the jurisdiction as being either the location of the subject matter of the litigation or at least one of the parties. Thus, both practical considerations and the ethical constraints of Rule 11 and the Model Rules of Professional Conduct should prompt counsel to consider where the litigation should really begin.
The determination of which litigation forum is proper involves consideration of four factors:
Does the forum have subject-matter jurisdiction?
Does the court have personal jurisdiction over the defendant?
Is venue proper?
Can service of process be obtained on the defendant?
In arbitration cases, the forum is the organization usually identified in the arbitration clause. The location of the hearing is determined by the code of procedure or agreement of the parties. It is common for a hearing to be held in the community where the respondent lives or works. In administrative cases, the forum is determined by where the administrative agency conducts its hearings.
Service of Process. Service of process provides the defendant with notice of the litigation. Proper service of process involves two issues. The first is constitutional: has the defendant been afforded sufficient notice and an opportunity to be heard? This constitutional standard requires the defendant to receive the best possible and practical notice available. Usually this means that the defendant be personally served or somehow receive actual notice of the litigation. This standard also requires the defendant to be afforded sufficient time and opportunity to respond to the complaint. Usually this means a written response within a reasonable number of days. The second issue involving service of process is regulatory: has the defendant been served in accord with the regulations of the judicial forum? All courts have adopted service of process rules, augmented by statutory enactments, which delineate proper service of process. The most common methods of providing actual notice include:
(1) personal service, in which a defendant is personally served with a copy of the complaint,
(2) substitute or abode service, in which a copy is left at the domicile of the defendant with a person of suitable age and discretion,
(3) service by personal delivery of a copy to an officer or managing agent of a corporation,
(4) service on a public corporation by personal delivery of a copy to the proper government official,
(5) the posting of the complaint on the defendant’s property and service by mail on the defendant, and
(6) service documents voluntarily accepted and acknowledged by a defendant without resort to one of the above methods.
In cases involving non-resident defendants, service will usually be proper if it is delivered by certified or registered mail, typically if a long-arm statute provides the court with jurisdiction. In other cases where the defendant cannot be located, service by publication may be appropriate.
Usually any adult, other than a party, is authorized to serve the summons and complaint. In federal and state courts a sheriff or private process server, or law firm non-attorney, may serve the process. In federal court, a federal marshal may serve process if the court so orders.
Service of process in arbitration proceedings includes the various methods used in litigation and may include other reliable methods. In some cases, service may be proper by a private courier service with a receipt signed by the respondent. In electronically filed cases, service may be proper by email responded to by the respondent. Service of process in administrative cases may include all the previous methods described as well as regular mail service.
Selecting the Forum. A party who has a choice of more than one judicial forum should choose the preferred form by considering:
Procedural and evidentiary differences of the forums.
The judges of the courts, their known and probable attitudes, as well as their reputations for competence and fairness.
The jury panels and their geographic and philosophical makeup and whether a successful claim requires a unanimous jury or a majority vote of the jurors.
The governing appellate court, its precedents, approaches, and activism in reviewing trial courts.
The likely quality of opposing counsel in different forums. Lawyers in federal court actions are frequently more experienced and more effective trial attorneys than state court practitioners.
The trial calendar and likely time required to bring the matter to trial in the different forums.
The relative convenience of different forums for the client, key favorable witnesses, but not just for plaintiff’s counsel. Unfortunately, some cases are brought in wrong or inappropriate forums because the plaintiff’s lawyer was too lazy to travel to the right jurisdiction or too cheap to refer the case to another lawyer and lose a potential fee.
The inconvenience to the defendant and opposing counsel. Even if counsel can’t find a forum perfectly suited to the plaintiff and counsel, an alternative selected site should not be a place that gives the opposition a convenience advantage. Of course, if the least convenient forum has the best law and jury for the plaintiff’s case, that’s the place to go.
A party may have a choice of arbitration forums. The arbitration clause may include more than one named arbitration organization, and the party who files first gets to select which forum. The party should review the code of procedure for each of the arbitration forums and decide which rules are better for the specific case. A party with an administrative claim may also have a choice. They may be able to choose from a local, state, or federal agency. Some of the same considerations listed above regarding litigation will apply to this choice.
GenAI can help lawyers evaluate jurisdiction and venue by analyzing case facts against relevant statutes and precedents. After the advocate inputs details about the parties, claims, and key events, GenAI can identify potential jurisdictional hurdles, recommending the most-appropriate forum. It can also flag venue issues by comparing the case to similar filings and identifying trends in forum challenges. This allows attorneys to anticipate and counter potential objections to their chosen forum, reducing the risk of dismissal or transfer.
LLM-backed tools can also provide strategic insights when selecting among multiple forums by comparing procedural rules, judge profiles, jury demographics, and trial timelines. It can analyze past rulings to determine how different courts interpret key legal issues and assess the likelihood of appellate review. In arbitration and administrative cases, GenAI can compare procedural rules across different forums, helping attorneys select the most-favorable venue. This approach can enhance forum selection by ensuring that attorneys base their decisions on objective, data-driven insights, rather than anecdotal experience (a/k/a “anecdata”).
In addition, GenAI can assist in choice-of-law determinations,** **analyzing each claim’s elements across multiple jurisdictions, and comparing them to the client’s facts. By breaking down each cause of action into its required elements, then placing the client’s facts into each claim/element bucket, GenAI can determine whether the client’s facts fully satisfy a claim’s legal requirements in one jurisdiction but not another. If the facts align with one jurisdiction’s law but fail to meet the elements in another, GenAI can provide a data-driven basis for choosing the more-favorable jurisdiction. This analysis helps ensure that lawyers select the forum not only based on procedural advantages but also on substantive law considerations that maximize the client’s likelihood of success.
§ 3.3.4 Parties to the Action
The plaintiff chooses the defendants and decides whom to sue, at least initially.
PLAINTIFFS
The first task is to determine who to put on the plaintiff’s team. Sometimes the contemplated action will be cleaner and neater if pursued alone. On other occasions, the plaintiff will find safety, credibility, and legal and financial resources in numbers. In these cases, the attorney may wish to approach other potential plaintiffs and ascertain whether they want to join the litigation. The Model Rules of Professional Conduct place some limits on counsel’s efforts to promote litigation. Counsel considering approaching other potential plaintiffs should consult the applicable rules in their jurisdictions. Normally, such contact is acceptable so long as counsel believes the claim of the potential plaintiffs has merit and joinder is feasible. States may require attorneys to avoid contact by solicitation until some time (e.g., 30 days) has passed after an accident or other event potentially leading to a claim.
Where a case presents a large number of equally meritorious and sympathetic plaintiffs and joinder is impractical, counsel should consider commencing a class action. Section 3.11 discusses class actions. Where the client is an insurance company that has paid an insured for loss caused by the acts of another, counsel should consider subrogation. In subrogation, the insured permits the insurance company to sue the party causing the damage under the name of the insured, a surely more sympathetic figure in the eyes of the jury. Usually, the insured has something to gain as well by seeking recovery of deductibles and coinsurance not covered by the insurance policy. By joining forces, both parties, insured and insurer, can seek recovery more economically.
DEFENDANTS
First, all potentially liable potential defendants should be identified, as should the theories of liability, the supporting facts, and the resources of the potential parties for satisfying a judgment. In picking the defendants, the plaintiff will want to consider the merits of its case against all. Naming too many defendants with tenuous liability can dilute the plaintiff’s strongest case against the really culpable defendant. Conversely, focusing on one defendant can unduly limit the plaintiff’s chances of full recovery. Choosing defendants requires discerning judgment.
Counsel ordinarily does best by naming as defendants all those against whom the plaintiff has a non-frivolous case. Generally, more defendants will more often begin attacking each other and aiding the plaintiff’s case both for negotiations and for trial, although occasionally a united front of many defendants will make the jury wonder whether so many others can be wrong and the plaintiff right. Naming all reasonably justified defendants also lessens the possibility that the named defendants can point an accusing finger at someone not in the litigation, thereby convincing the jury that although someone wronged the plaintiff, that someone is not in the courtroom and subject to the jury’s power.
Naming an entity as a defendant also subjects it to the discovery tools available against a party, e.g., interrogatories, requests for production, non-subpoena depositions, requests for admissions. The identity of the parties also affects evidentiary matters. For example, out-of-court statements of a non-party are usually hearsay and not admissible at trial unless a hearsay exception applies. Out-of-court statements of a party are defined by the Federal Rules of Evidence as non-hearsay and may be admitted into evidence absent some other objection.^[42]^
It is generally better to err on the side of over-inclusion rather than under-inclusion of defendants. However, counsel must also consider the cost of prosecuting an action against multiple defendants and weigh this accordingly. In addition, counsel may successfully name the target defendant and let that defendant bring third-party complaints against other potential defendants. This forces the target defendant to shoulder the lion’s share of the cost and effort in pursuing discovery against the third-party defendants. If this discovery indicates that the plaintiff has a meritorious case against these parties, the plaintiff can then seek leave to amend its complaint to assert claims directly against these defendants.
GenAI, combined with search engines and corporate databases, can help lawyers identify all potentially liable defendants, including parent companies, subsidiaries, and related entities. By analyzing public records, regulatory filings, and litigation histories, GenAI can help uncover hidden or obscure corporate relationships that may expose additional parties to liability. It can also help identify joint tortfeasors, aiders and abettors, or indemnitors based on contract terms, prior lawsuits, and industry practices. This approach helps ensure that attorneys don’t overlook defendants who may share responsibility or possess deeper resources to satisfy a judgment.
LLMs can further enhance defendant selection by analyzing liability theories and supporting facts. By comparing the client’s claims to prior cases (perhaps against the same or similar defendants), GenAI can determine which legal theories have the strongest precedent. It can also cross-check relevant statutes, contractual obligations, and regulatory duties to highlight potential avenues for liability. If factual gaps weaken a claim against a particular defendant, LLMs can suggest additional discovery avenues to strengthen the case. Once defendants are identified, GenAI can help retrieve financial records, insurance coverage details, and bankruptcy filings to assess their ability to satisfy a judgment, ensuring that litigation efforts focus on viable recovery targets.
JOINDER
The civil procedure rules of the federal courts and most state courts are liberal in joining parties. Usually, parties with claims stemming from the same transaction and occurrence and which involve common questions of law and fact will be proper parties. Fed. R. Civ. P. 17 governs real parties in interest including parties who sue in a representative capacity, e.g., executors and guardians. Rule 19 covers the joinder of persons needed for the just adjudication of an action. If complete relief cannot be afforded to the present parties in a case or if the rights of a non-party will be adversely affected then those non-party persons may need to be added to the lawsuit. The common law notions of indispensable and necessary parties have been merged in this rule. Rule 20 details the considerations involved in the permissive joinder of parties. The preference of most jurisdictions is to encourage and permit all persons who have an interest to join or be joined in a lawsuit. If the inclusion of too many parties creates problems or confusion then severance or separate trials may be appropriate or parties may later be dropped. See § 12.1.
A final word on party selection for litigation—it is important to get it right on the caption and in the pleadings. Misnaming or misidentifying parties normally is not fatal and can be cured by amendment. However, egregious misnaming or misservice may allow the true targets to escape the complaint until the statute of limitations has run. Where the government or its agents are the defendants, misnaming may permit them to have the action dismissed or prevent jurisdiction from attaching.
OTHER FORUMS
An arbitration claimant is able to bring an arbitration claim with or against any other party who is a party to an arbitration agreement. A claim cannot be brought against someone who is not a party to a clause. An administrative law petitioner can bring a claim with or against anyone who is liable under the applicable statute or regulations.
§ 3.3.5 Issues in the Complaint
As previously noted, the complaint frames the issues. The question then is how many to frame in drafting the complaint. Attorneys differ markedly in this area. Some belong to the kitchen sink school and favor pleading every conceivable claim available against the defendants. Others prefer the rifle to the shotgun and plead only the strongest claim or claims, reasoning that additional claims, even those with some merit, will only confuse the jury or dilute the impact of the strongest claims.
Which approach is right? That depends on which author is asked at which time of the day according to his last brush with drafting a complaint. Sometimes the case suggests one real and strong theory of relief. In these cases, the rifle approach seems best. In many cases, however, a determination of the relative strength of the claims must await discovery, perhaps even trial. In these cases, there is nothing pejorative about a broad approach. Of course, if one of the claims later appears unsupportable, plaintiff’s counsel should be prepared to seek voluntary dismissal of the claim before the issue is sent to the trier of fact. This approach serves both ethics and credibility.
The inclusion of an additional claim for relief may also be an attempt by plaintiff’s counsel to create new law. A routine case may become an unusual one with the inclusion of a claim that has not yet been explicitly recognized by the court appearing in the caption (or by higher courts it is required to follow). This tactic has both advantages and disadvantages. If the present state of the law does not provide a plaintiff with a clear claim for relief, then the inclusion of a new cause of action will be necessary. This may also prompt the opposing attorney to view the case from a more serious perspective, increasing the chances of a favorable settlement. If the plaintiff does have a recognizable cause of action, then the inclusion of a novel claim may complicate an otherwise straightforward case. This may also result in a shadow being cast over the otherwise credible claims.
In reality, every existing cause of action was first brought by a plaintiff who, in retrospect, was courageous. Earlier and less ambitious plaintiffs and their attorneys may then appear to be fools, or at least cowards. It is not easy to predict the impact the inclusion or exclusion of a novel claim may have on a case. It is appropriate in some cases for a plaintiff’s lawyer to endure raucous laughter from the defendant’s lawyer upon reading the complaint. The novel claim may also increase the cost of litigation, a factor all parties must consider.
So long as counsel holds a good faith belief in multiple claims for relief, it is permissible to plead them and use them for negotiation and settlement value. So long as the plaintiff’s complaint does not read like a James Joyce novel, defendants facing several theories of liability are forced to face the possibility that one of them may work. This should encourage negotiated settlement, especially if the various claims will require extra (and expensive) discovery.
In arbitration proceedings, the general rule is that a party may bring the same claims and seek the same relief that could be brought and sought in court. In administrative proceedings, the claims and relief are determined by the authorizing statutes and regulations.
As LLM-backed tools become more pervasive, lawyers might consider exercising restraint. GenAI can generate an exhaustive list of all potential claims based on the facts of a case, drawing from case law, statutes, regulations, and legal scholarship. This capability allows lawyers to uncover underutilized or emerging legal theories that might strengthen the complaint. The sheer volume of claims that GenAI can generate may tempt attorneys to take a kitchen sink, shotgun-style approach, pleading every conceivable cause of action. While this method ensures no viable claim is overlooked, it can (as noted above) also dilute the impact of the strongest claims, confuse juries, and increase litigation costs.
To avoid over-pleading, GenAI can also provide strategic claim selection by assessing the historical success of similar cases and predicting which claims are most likely to survive motions to dismiss. It can also help evaluate whether a novel claim has a foundation in existing legal precedent, or if it risks undermining the credibility of the complaint. By balancing comprehensive claim generation with strategic restraint, LLMs can allow lawyers to refine their approach—starting broad when necessary but narrowing claims after discovery clarifies the case’s strengths. This can help ensure the complaint remains focused, persuasive, and legally sound.
§ 3.3.6 Content of the Complaint
Although Rule 8 and most of its state court counterparts require only a short and plain statement of the facts entitling the plaintiff to relief and a demand for relief, the well-pleaded complaint should meet a number of formal and substantive requirements. Rule 10 establishes the basic format for federal court complaints. These are the main parts of a complaint:
Caption;
Body;
Request for Relief; and
Signature.
Caption. The complaint should be captioned with the name of the court, including the applicable division within the district, the names (and addresses in some jurisdictions) of the parties, the civil action number of the case, and the designation of the pleading (e.g., complaint, answer). In the complaint, the case caption must state the names of all parties. In subsequent pleadings, the name of the first plaintiff and defendant followed by et al. may be used. The specific arrangement of the various parts of a caption on the page is normally a matter of custom, which ordinarily should be followed by counsel.
Body of Complaint. The body of the complaint contains the allegations of fact and description of the plaintiff’s claims. The averments of the complaint should be set forth in separate paragraphs, with each paragraph limited insofar as possible to a single set of circumstances. Each paragraph should be numbered and may be referred to by number subsequently in the complaint. Arabic or roman numbers may be used, depending on the preference of the attorney and local custom. Roman numbers, however, appear archaic, and can be cumbersome in lengthy complaints. Later in the complaint, counsel may restate by reference the averments of any preceding paragraph. In addition, the statements in another pleading may be adopted by reference in the instant pleading. This normally does little for the complaint, which is by definition the first pleading of the case except in unusual circumstances. In pleading the existence of a key document, the plaintiff may have it attached to the complaint as an exhibit. This is probably a good practice for crucial documents but is unnecessary for many less-important documents.
The paragraphs of averment may be very brief or may be somewhat longer so long as the spirit of Rule 8 and Rule 10 is observed. Although long averment paragraphs may attempt to lure the defendant into admitting too much and trapping itself, this style of pleading is generally disfavored and violates the thrust of the federal rules. Besides, the defendant can probably get leave to amend if it appears that the admission of an allegation resulted through inadvertence. It is nobler to be right than cute. Averment paragraphs should be long only where the complexity of the claim makes short averments too fragmented to present the claim in a cogent way.
The federal rules and similar state counterparts do not require a complaint to plead legally required elements stating a cause of action. Such matters of proof are left for trial. Plaintiff need only state facts setting forth a claim entitling relief. The purpose of the claim is to give the defendant notice of the nature of the claim and reflect the plausibility and strength of the claim.
In practice, the well-drafted complaint for common claims will usually include the following:
A description of the parties, both the plaintiffs and defendants;
A recitation of the events giving rise to the dispute;
An allegation of any demand made to the defendant and the failure to satisfy the demand, as well as any other conditions precedent to making the claim;
A reference to the legal nature or source of the cause of action;
An allegation of injury to the plaintiff proximately or directly resulting from the defendant’s acts;
A statement of the damages;
In federal court, a statement of the basis for jurisdiction as required by Rule 8(a)(1). In state court, jurisdiction should be apparent from the pleading of a recognized cause of action;
Averments of specialized matter such as specific pleading where required (e.g., actions for fraud and libel), allegations of special damages (those not normally thought to flow proximately from the injury alleged), or requests for equitable relief.
In pleading, counsel should have no trouble coming up with an adequate complaint form. It may look something like this:
STATE OF MITCHELL COUNTY OF SUMMIT IN DISTRICT COURT
Northstar Oil Company,
Plaintiff
COMPLAINT
v.
Civil Action No. _______
Southstar Oil Corporation,
Defendant
Jury Trial Demanded
For its Complaint, Plaintiff Northstar Oil Company (“Northstar”) states:
Northstar is a corporation organized under the laws of Mitchell with its principal place of business in Summit, Mitchell.
Defendant Southstar Oil Corporation (“Southstar”) is a corporation organized under the laws of Grand, with its principal place of business in Lexington, Grand.
On January 1, 2020, Southstar offered to sell Plaintiff fuel oil at ten dollars ($10.00) per barrel.
On January 2, 2020, Northstar accepted Southstar’s offer and ordered 30,000 barrels of fuel oil at the $10.00 per barrel price.
Southstar failed to deliver fuel and in a letter dated January 10, 2020, informed Northstar that it would not be performing the contract.
As a result of Southstar’s failure to deliver, Northstar was forced to purchase 30,000 barrels of fuel oil at $15.00 per barrel.
As a result of Southstar’s breach of its agreement with Northstar, Plaintiff Northstar has suffered damages of one hundred fifty thousand dollars ($150,000.00).
WHEREFORE, Plaintiff Northstar requests Judgment as follows:
Judgment in favor of Plaintiff Northstar and against Defendant Southstar in the amount of one hundred fifty thousand dollars ($150,000.00) plus interest and costs to the extent recoverable by law.
Such other relief as justice may require.
Cara Commercial Laissez & Faire 123 Commodity Place Commercetown, New York 00000 (212) 000–0000 Fax (212) 000–0001 c.commercial@LaiFai.com Attorney Registration No. 465473
Counsel for Plaintiff Northstar Oil Company
Plaintiff could plead more specific averments such as an OPEC oil embargo, or anything else that might lend strength to the claim. This is, however, not necessary. Plaintiff may also, in most jurisdictions, plead a much less specific complaint. A complaint reduced to its bare minimum might look like this:
- In January 2020, Defendant breached its contract with Plaintiff to sell 30,000 barrels of oil at $10 a barrel, causing Plaintiff damages of $150,000.
Even under the Twiqbal standards, this rather concise complaint should survive a motion to dismiss because it complies with Rule 8. Prior to the abrogation of the forms in the Civil Rules, Rule 84 provided that the forms contained in the Appendix of Forms to the Federal Rules of Civil Procedure were sufficiently detailed pleadings under the rules. Although caution is obviously called for, a review of these forms reveals the brevity that was long acceptable and encouraged under the Rules. This can be used for both guidance and argument against a Twiqbal motion to dismiss, but neither the guidance nor argument is as strong as it was before 2016. Because a complaint may serve several functions (as discussed in § 3.3) a longer and more detailed complaint is usually desirable. As a practical matter, counsel should be prepared to go beyond the old forms, sometimes well beyond, to ensure that the plausibility standard of *Twiqbal *is satisfied.
In defiance of common sense, some complaints turn out like this:
- On or about January 10, 2020, Defendant wrongfully and with malice aforethought breached its contract with Plaintiff for the sale of 30,000 barrels of fuel oil at a cost of $10.00 per barrel, said cost having been fraudulently misrepresented to Plaintiff by Defendant and having caused Plaintiff to suffer severe damages as a result of being coerced and forced against its will to buy higher priced fuel oil due to a sudden surge in price between the time the contract was made and Defendant’s egregious breach thereof.
Although convoluted and less informative, this second example would probably survive a motion to dismiss in most jurisdictions. However, the attorney who drafted it might not survive the ridicule of colleagues who read such a pleading. Additionally, it is probably easier to deny its allegations than those of the more carefully drafted claim.
Suggested averments for complaints appear in many form books, websites, and other sources. Many of these forms are appropriate and well drafted, but some may be inappropriate or even horrendously drafted. An LLM can assist in identifying and assessing proper provisions. Discretion by the advocate is required in the use of any form. The most effective use of form pleadings is to adapt those suggestions that are reasonable and to reject suggestions that are unnecessary or inappropriate under the facts of a particular case or the law of a specific jurisdiction.
The same analysis applies to the use of previously drafted complaints as guides. Complaints that have been previously used successfully or that have survived motions to dismiss can be especially helpful in composing a complaint. Some former complaints may be tailor-made but for different cases or may be outright deficient. Word processing has made the ability to carry forward generations of both well drafted and ill-conceived pleadings and forms not only possible, but widely available.^[43]^ Certain types of cases lend themselves to form pleadings while others require individualized allegations. Collection lawsuits may use form pleadings; discrimination cases will need particularized averments. Caution must be exercised to make certain that each pleading, from whatever source, is suited to the specific needs of the particular case. Examples of complaints appear in the problems at the end of this chapter and in case files in Appendix B.
GenAI offers significant advantages over traditional form complaints by generating tailored pleadings based on case-specific facts and jurisdictional requirements. Unlike static formbooks or recycled complaints, LLMs can adapt language to reflect the latest legal developments and ensure compliance with procedural rules. GenAI can also analyze past complaints, identifying patterns in pleadings that survived motions to dismiss or led to favorable settlements. But just as with model complaints, lawyers must exercise discretion when using LLM-generated text. Blind reliance on GenAI, like copying from formbooks, risks errors, misstatements, or misapplications of law. While GenAI enhances efficiency and drafting precision, the lawyer remains responsible for verifying accuracy, ensuring factual alignment, and maintaining ethical obligations under Rule 11. Technology is a powerful tool, but the ultimate judgment and accountability rests with the advocate.
Some terms of pleadings have taken on lives of their own, having acquired specialized meanings. Some of these terms serve useful purposes, others deserve to go the way of the Dodo bird. The following include some of the more common terms:
“On or about . . .”. This phrase prefaces a date or time, and attempts to avoid establishing a certain date when the pleader is not certain of it. Under modern pleading rules, an allegation of a date or time is considered material, and by pleading the date or time the pleader makes a judicial admission of that date. Qualifying the date by “on or about” results in the pleading not constituting an admission. If the pleader is certain of the date, there is no need to rely upon this unnecessary cautionary phrase.
“Upon information and belief . . .”. This phrase is intended to convey the notion that the plaintiff is unsure of some facts and is pleading based upon hearsay information, rumor, or intuition. This phrase may be necessary in an affidavit, which otherwise must be made on personal knowledge. Since modern pleading rules do not require pleadings to be made on personal knowledge, there usually is no need for this phrase in a pleading. Rule 11 provides that a party may not be sanctioned if a claim ultimately lacks evidentiary support provided that the party submitting the paper has identified the claim as one for which the claimant must have opportunity for discovery to ascertain whether its good faith belief is correct. In these cases of claims at the margin, counsel may wish to use the tentative language of the “upon information and belief” allegation. But to avoid Rule 11 problems, the attorney must have performed a reasonable investigation under the circumstances and believe that discovery or disclosure will provide the necessary evidentiary support to the complaint.
“At all times material and relevant to this case . . .”. This phrase is used to describe the timing of a continuing condition or event. It is often unnecessary, because specific dates can be provided if necessary. Moreover, it is an open invitation to a denial of the fact. Because the phrase has no precise or clearly understood meaning, no attorney could admit that a fact was true “at all times material and relevant to this case.”
“(Hereinafter sometimes referred to as ‘___’).” As in “Plaintiff National Committee for the Demise of Clean Mudhens (hereinafter sometimes referred to as ‘Mudhens’) . . .”. Simply (“Mudhens”) is sufficient and much less cumbersome. (“NCFDCM”) is a much less acceptable alternative. If there is another entity in the action with similar initials, the complaint will look like alphabet soup and will be unintelligible. It is much easier to refer to all the parties by a shortened name which is either an English word contained in the full name, or by a descriptive word related to their role in the action (“Distributor”), (“Dealer”), or (“Owner”).
Some claims must be pleaded with specificity. Counsel should also consult Rule 9 to ensure that any matters that must be pleaded specially have been so averred. Rule 9 provides that fraud, mistake, and conditions of mind must be pleaded with specificity. The rule actually reads more like a list of things that no longer must be pleaded specially since the adoption of the federal rules. However, state court versions of Rule 9 may not be so liberal and should be consulted with care.
Federal Rule 9 also states that allegations of time and place are material. This means that once pleaded, the pleader is stuck with the times and places averred as though they were admissions.^[44]^ This rule can have consequences for later evidentiary matters as well as the statute of limitations. In cases where rigid adherence to the rule would work injustice, the averment may be cured by amendment. But, as the saying goes, better to get it right the first time.
Rule 11 requires that counsel plead facts that are believed in good faith to be true. Where complete knowledge is lacking, the plaintiff may make averments based upon any reasonable source, but the pleader must make a reasonable investigation to attempt to learn the facts. Chapter 2 explained helpful investigation efforts.
The contents of an arbitration claim differ from a court complaint in that the arbitration document contains more specific, detailed information. The applicable code of procedure provision typically requires that the arbitration claim state in specific detail all facts and law supporting the specific relief sought and be accompanied by all relevant, supporting documents. This requirement better informs the respondent about the case and the claimant’s position.
The contents of an administrative claim vary depending upon the type of claim. Some claims are filed by completing a claim form provided by the administrative agency. Other claims are drafted similar to the rules of litigation notice pleading, while others are composed to be as detailed as arbitration claims.
§ 3.3.7 Forms of Relief
Pleading complaints resemble life generally. To get results, one usually must ask for it (or beg or grovel). After the facts have been set forth and the basic legal claims referenced, the plaintiff must make a claim for relief. The well-drafted complaint in the body or in the ad damnum (Wherefore) clause will generally ask for:
- A Compensatory Award of X Dollars. Many jurisdictions require that the complaint merely set forth a general compensatory request such as “in excess of $50,000” in order to avoid the public relations request for “$20 billion dollars and Defendant’s DeLorean automobile.” It is advisable to aver generally so as not to get boxed into a specific amount that later is abandoned by the plaintiff but used by the defendant to suggest inconsistency. Even if not required, “in excess of X” demands are useful and safe. Specific numbers should be saved for negotiating sessions, discovery responses (but only to the extent needed to be candid), and proof at trial.
Attorneys should take care to plead special damages properly where required. General damages are those that normally flow from the defendant’s conduct. Special damages are all other damages. Special damages, or “specials,” must be specifically pleaded and proved in order to be recovered. Most damages are general, but certain damages, such as medical bills, lost wages, and substitute help wages, are considered special damages because they are not inevitable, but flow from the particular situation of the plaintiff.^[45]^
An Award of Punitive Damages, where warranted by the applicable law under the set of facts pleaded by plaintiff. Punitive damages may be sought “in an amount sufficient to deter Defendant from similar conduct in the future.” This form is related to the purpose of punitive damages and does not tie the pleader to a specific number. In some jurisdictions, punitive damages cannot be included in an initial complaint and may be added to a complaint after a motion is brought and a hearing conducted.
Declaratory, Injunctive, or Other Equitable Relief (e.g., an accounting, replevin) where appropriate under the circumstances and desired by the plaintiff. It is important to select with care the remedies sought, because they define the relief the court may order and may also affect the right to a jury trial, the scope of discovery, or numerous other facets of the litigation. Broader is not always better either. In addition to requesting equitable relief in the complaint, the plaintiff may require interim equitable relief such as a preliminary injunction or a temporary restraining order. This should be sought in a separate motion and supporting papers filed and served with the complaint. Motions for provisional relief are discussed in Section 12.5.
Plaintiff’s Costs and Disbursements incurred in prosecuting the action. Recoverable costs and disbursements will vary from jurisdiction to jurisdiction. The two terms encompass a fixed and limited docket fee or statutory costs, filing fees, out-of-pocket expenses for service of process and obtaining subpoenas, witness fees, and other expenses.
Attorney Fees incurred in prosecuting the action if available under the circumstances of the case. Attorneys’ fees will be recoverable only in limited circumstances. Generally, attorneys’ fees can only be recovered if an agreement between the parties or a specific statute authorizes recovery of fees.
A Catchall Clause asking for “such other relief as the interests of justice may require.” This is a common means of closing a complaint but has limited utility. Some think the phrase adds little or nothing to the pleading. Others find it a useful means of seeking to preserve options in arguing for relief later in the proceeding. In any event, failure to use the catchall is seldom fatal. If subsequently discovered facts justify other remedies the pleadings may be amended to conform to those facts. Amendment and supplementation of pleadings are discussed in Section 3.12. The presence or absence of this phrase is not likely to affect the court’s decision on whether to permit amendment. It has been a part of pleadings for generations and is still prevalent today even if it does serve little purpose.
As stated earlier, the relief available in arbitration cases is usually the same as is available before a judge or jury. And the relief available in an administrative case is determined by the applicable rules.
§ 3.4 Signing of Pleadings
Every pleading must be signed by the attorney of record or the party if an attorney has not appeared for the party. Typically, the address and telephone number of the signer will either be required by rule or included as part of practice. Some states require lawyers to include their attorney registration numbers on all pleadings as well. Other requirements may include an email address and a fax number.
Pleadings need not be verified unless required by statute or for some other reason. Verification of a pleading—signing by the party with notarization or affirmation—essentially converts the pleading into an affidavit. Verifying a complaint permits it to serve as an affidavit to counter a motion for summary judgment and may obviate preparing a second affidavit.
The signature of an attorney or unrepresented party serves several purposes.^[46]^ Signing constitutes a certification that the attorney has read the pleading, that there exists a good faith basis for the allegations made, and that the pleading is not interposed for delay or other improper purposes. The willful violation of the rule or the inclusion of other inappropriate information not only permits the opposing party to seek to have the pleading stricken as sham or frivolous, but also subjects the attorney to disciplinary action.
Arbitration documents may be signed by the party or the attorney, if representing the party. Similarly, administrative documents may be signed by a party or a retained lawyer.
§ 3.5 Ethics of Pleadings
An essential element of proper pleading is conformance to the ethics of pleading, which are reasonably well codified. Counsel should be aware of several ethical rules that specifically address pleadings. Federal [Rule 11](https://www.westlaw.com/Document/N71274E70B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N71274E70B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) provides that the signature of an attorney on a pleading constitutes certification that counsel has read the pleading and determined that there is good ground to support it, and that the pleading is not interposed for delay. A signature in violation of this oath can result in the court striking the pleading and imposing disciplinary sanctions against the signing attorney. Similar sanctions are available if the pleading contains scandalous or indecent matter.
[Rule 11](https://www.westlaw.com/Document/N71274E70B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N71274E70B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) is now used as a means to control attorney compliance with the pleading rules. Although common law also provides for certain sanctions against the litigant who prosecutes an action in bad faith, most judicial attention has focused on Rule 11 and 28 U.S.C.A. § 1927.^[47]^ [Section 1927](https://www.westlaw.com/Document/NCE9C8290A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCE9C8290A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) provides that whenever an attorney multiplies proceedings in a case unreasonably and vexatiously, counsel may be personally required to pay the opposition’s costs incurred due to the misconduct.
To benefit from this rule, the saintly party usually has to be a prevailing party as well. However, there is no logical need for this restriction. A party may ultimately lose on the merits of a case but nevertheless have been victimized by a pleading through having prepared defenses to frivolous claims upon which the victor did not ultimately succeed. Similarly, motion mania by the victor may not have influenced the result but may have cost the opposition a good deal of money. Even a big loser on the merits may still have been needlessly damaged by scandalous or indecent matter.
Unreasonable and unfounded discovery requests or responses to discovery requests are a frequent source of delay, multiplication, vexatiousness, and frivolity. These discovery practices have built-in sanctions under Rule 37. These sanctions are discussed in Section 11.5. However, some of the worst discovery abuses, such as intransigent stonewalling, often do not require a motion or pleading by the guilty party, thus limiting the use of the pleading rules of ethics in this regard. But Rule 37, if properly and aggressively employed by the courts, does not require additional help.
The Model Rules of Professional Conduct forbid a lawyer from violating Rules engaging in dishonest conduct, or engaging in conduct that is interferes with the administration of justice. The Rules clearly forbid unethical pleading practice. Rules 3.1–3.4 are more directly focused on advocacy ethics and forbid counsel from filing suit or asserting a position or any other action merely for delay, harassment, or malicious injury. The Rules specifically forbid advancing a claim or defense that is unwarranted under existing law. Under the Rules, which have the force of law in most states, knowingly false motion documents or motions made for an improper purpose, are illegal as well as unethical.
The actual legal requirements of the profession defining what is ethical, rests with state supreme courts that promulgate the ethical rules for our self-regulating bars. State bar committees recommend ethical practice rules to state supreme courts. The adopted rules are often based on the ABA Model Rules of Professional Conduct.
Model Rule 3.1 requires that counsel bring only meritorious claims and defenses, that the documents have a legal basis or at least a good faith argument for extending the law (read this “not as far out as the things you used to put on law school exams”). Model Rule 3.2 requires that counsel make reasonable efforts to expedite litigation so long as this is consistent with the client’s interests. Model Rule 3.3 requires candor toward the court and contains language that is stronger about the duty to reveal perjury or facts necessary to prevent fraud by the client than the Code’s admonition. Lawyers are also required to disclose all facts, even the adverse ones, in an ex parte proceeding. Finally, Model Rule 3.4 requires fairness to the opposition, and forbids discovery intransigence, evidence destruction, innuendo, witness tampering, and frivolous discovery motions.
Perhaps the greatest incentive to be ethical is a practical one. If counsel wants to have credibility with the court, opposing counsel, and within the local legal community, all things which any sane lawyer will want and need in the long run, counsel will observe the rules of ethics. Judges can sense hokey pleadings and motions and, while they may not assess sanctions as often as they should, they will remember the near-sham papers and this undoubtedly colors the court’s thinking on close call motions, evidentiary rulings, jury instructions, and other matters.
Every litigator will someday need to be given a break by the court or opposing counsel. Some have that need too often. Thus, in pleading and other areas of litigation, the cardinal rule is the golden rule. Most important, counsel must retain credibility with the tribunal; something usually will be irretrievably lost if the lawyer brings specious motions and claims. Someday, counsel might have a creative legal theory that is justified by the facts. Why preclude a chance to win that case by becoming known as a lawyer whose motions and pleadings are as crude and finely drawn as a howitzer blast. Above all, counsel must take seriously the attorney’s function as an officer of the court. Counsel’s task is to provide the best representation feasible within the rules and the client’s ability and willingness to pay.
GenAI can help lawyers maintain ethical pleading practices by ensuring compliance with Rule 11 and other professional standards. By analyzing pleadings for legal sufficiency, LLMs can flag arguably frivolous claims, as well as potentially unsupported allegations, reducing the risk of sanctions. GenAI can also cross-check claims against precedent to help ensure that each argument has a reasonable basis in law or a good-faith argument for extending the law. This helps safeguard attorneys from filing pleadings that courts may dismiss as clearly meritless or sanctionable.
Beyond technical compliance, GenAI can also promote credibility and fairness. LLMs can detect inconsistencies between pleadings and prior filings, ensuring that attorneys do not inadvertently misrepresent facts or legal positions. By refining potentially aggressive tactics, GenAI can help lawyers craft persuasive arguments without jeopardizing their standing before the court. Judges recognize patterns of exaggerated or bad-faith filings, and an attorney’s reputation can influence close evidentiary rulings or discretionary decisions. By balancing zealous advocacy with ethical obligations, GenAI can help ensure that lawyers pursue creative legal arguments while maintaining their professional integrity.
§ 3.6 Drafting Techniques
§ 3.6.1 Goals of the Complaint
In drafting a litigation complaint, counsel has flexibility. As long as the averment paragraphs tell the recipient and the court sufficiently about the facts and legal claim(s), are not laden with superfluous or scandalous matter, and not too full of wondrous legal conclusions, the complaint will very probably pass judicial muster. However, counsel should not aim merely to avoid a motion to dismiss or to strike. The complaint should not only fulfill its basic functions under the rules but also accomplish something more. Typical goals of the complaint are to:
(1) Alert the defendant that plaintiff is no longer a pacifist;
(2) Impress opposing counsel with the competence of plaintiff’s counsel;
(3) Identify the issues in dispute between the parties;
(4) Establish the basis of claims for relief, both to the court and to the opposition;
(5) Establish a scope of disclosure and discovery and targets of discovery consistent with the plaintiff’s needs; and
(6) Conform to form requirements and customs.
These goals are also reasonable for arbitration and administrative claim documents. In addition, the initial claim documents in arbitration and administrative cases must also conform to requirements explained in the applicable rules, regulations, or statutes. As previously described, an LLM can help with composing pleading provisions and advising successful strategies and tactics. An advocate needs to understand effective claims and defenses in order to evaluate LLM suggestions.
§ 3.6.2 Drafting Techniques
The following drafting techniques are best suited to achieving these goals and getting the most impact from the complaint.
Be Precise. Don’t say “over the past three years,” say “Beginning December 14, 2022 through January 14, 2024. . . .” Follow the command of Rule 10 and use the shortest feasible averment paragraphs consistent with your goals. This forces the defendant to meet specificity with specificity, revealing more clearly legal and factual positions. Even where the facts at issue are involved or complex, stick to the short paragraph insofar as feasible. When setting forth the plaintiff’s version of reality, attempt a level of detail sufficient to show entitlement to relief and a potentially strong case but avoid attempting to prove the case in the complaint. “If it doesn’t help you, it hurts you” is a useful maxim to remember in pleading and brief writing.
The precision with which a complaint is drafted also affects the process of disclosure. Under Federal Rule 26(a), automatic disclosure requirements are made as to supportive matters related to disputed facts pleaded with particularity. Greater detail in drafting the complaint is needed to trigger these disclosure obligations.
Use Objective Words. Loaded descriptions of the events at hand may be useful in closing arguments but only undermine credibility in the complaint. In addition, argumentative terms may turn factual averments into conclusions of law or scandalous matter, providing the defendant with grounds for a motion to dismiss or to strike. The need to report in objective terminology does not require that the plaintiff plead a weak case. Rather, the plaintiff should set forth the facts, perhaps even selectively, and let them speak for themselves. In pleading fraud or grounds for punitive damages, the plaintiff in most jurisdictions must use words with negative connotative value, providing counsel an outlet for venom. After all, the court requires it. But where the court does not, plead with restraint in language.
Attach Documents as Exhibits. A useful tool in letting favorable facts speak for themselves is reference to a document such as a contract or an incriminating email by the opponent. The document should be attached as an exhibit to the complaint as allowed by Fed. R. Civ. P. 10(c). The documents, especially those authored by the opposition, add credibility to the complaint, but only use those that are truly central to the case. Less crucial documents can be left out of the complaint and revealed later.
Structure the Complaint*.* Complaints that include a single cause of action or simple claims can be easily and logically structured. The provisions listed in Section 3.3.6 provide an outline appropriate for those complaints. Complaints that include multiple claims or causes of action based upon different or additional facts present some difficulty in composing a readily understood complaint. In those situations, the most efficient way to compose the complaint is for the plaintiff first to set forth preliminary matter (party identification, jurisdiction) and then plead the basic facts underlying the relations of the parties and the events of the lawsuit. These factual averments should be prefaced with a heading such as “First Claim for Relief (Breach of Contract)” or “Count I (Negligence).” At the conclusion of these preliminary factual averments, the plaintiff may then plead the averments entitling legal relief such as “Defendant failed to deliver the corn” and “As a result of Defendant’s non-delivery, plaintiff suffered damages in excess of $50,000.”
The second count based on a different legal claim or a related but different set of facts can then follow. The plaintiff should denominate the next legal claim, e.g., “Second Claim for Relief (Fraud).” The plaintiff can begin this claim by restating the averments set forth in paragraphs X to Y of the first claim and should then state any additional facts relevant to the second claim:
“Defendant knew it had no corn but told plaintiff it did.”
“Plaintiff relied on Defendant’s statement and rented a corn masher at a cost of X dollars.”
Then, the plaintiff must set forth the legal contentions related to the second claim:
“As a result of relying on Defendant’s statement, Plaintiff was damaged in the amount of X dollars.”
“Defendant’s conduct in making a knowing misstatement upon which it knew Plaintiff would rely was malicious.”
At the end, the demand for relief should set forth the relief sought in connection with each claim. The claim can also be labeled a count or cause of action. However, the rules require only a claim entitling relief, and this language is preferred. An outline of a multiple count complaint may look like this:
STATE OF MITCHELL COUNTY OF SUMMIT IN DISTRICT COURT
Northstar Oil Company,
Plaintiff,
COMPLAINT
v.
Civil Action No. _______
Southstar Oil Corporation,
Jury Trial Demanded
Defendant,
For its complaint, Plaintiff Northstar Oil Company (“Northstar”) states:
FIRST CLAIM FOR RELIEF
(Breach of Contract)
[Allegations in separately numbered paragraphs
similar to those found in the Complaint
on page 122.]
SECOND CLAIM FOR RELIEF
(Fraud)
[Allegations that Southstar never intended to
provide the promised oil at the agreed price
and that Northstar relied to its detriment
on Southstar’s fraudulent statements
incurring damages.]
THIRD CLAIM FOR RELIEF
(Punitive Damages Under a State Statute)
[Allegations that Southstar’s conduct was
knowing and blameworthy to merit a punitive award
sufficient to punish it and deter future misbehavior.]
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Northstar requests the following:
Damages on the Contract plus interests and costs.
Damages for Fraud.
Punitive damages under statute or common law.
Other relief as may be required.
Dated: January 17, 2025.
Cara Commercial Laissez & Faire 123 Commodity Place Commercetown, New York 00000 (212) 000–0000
Fax (212) 000–0001 c.commercial@LaiFai.com Attorney Registration No. 465473
Counsel for Plaintiff Northstar Oil
Using this same modified format in a claim involving an exploding widget used while remodeling the house, a plaintiff homeowner might allege negligence for the first claim for relief, breach of warranty as a second claim, and strict liability as a third claim.
Balance Factual and Legal Contentions. The general rule of pleading is that the complaint (and all other pleadings as well) should set forth facts and identify the legal issues and not plead conclusions of law. A reasonable description of an event that provides the opposing party with sufficient factual and legal information will usually be sufficient. Pleading either a factual or legal extreme may not be acceptable. A complaint devoid of an explanation of the specific legal claim or that only includes a conclusion of law will fail to meet pleading requirements. The academic distinction between contentions and conclusions is of interest mainly to academics. In the real world, unless a complaint reads like a hybrid of Das Kapital and Blackstone’s Commentaries, no right-minded defendant will attack it for pleading legal conclusions. Complaints, unlike criminal indictments, are seldom introduced into evidence or read to a jury.
Be Realistic in Requesting Relief. Demands for billions of dollars or for an order requiring the defendant to read this book do little to enhance a plaintiff’s case. Grossly inflated claims have little utility, and may be counter-productive, unless a provocative headline is what a party wants. Ask for what the plaintiff is entitled. Depending on the jurisdiction, ad damnum clauses such as “in excess of $10,000” (in state court) or “in excess of $75,000, exclusive of costs and interest” (in federal court) may be most appropriate. At the time suit commences, the full extent of damages may not be known. Often, crucial information about damages is in a defendant’s possession, requiring discovery before a more precise amount can be claimed. In addition, this technique, without blatantly overstating damages, alerts the defendant to its substantial exposure on the case, a tactic likely to aid settlement. Plaintiff is unlikely to scare the opponent into settlement by pleading big numbers.
Attempt to Answer the Complaint. After a proposed complaint has been drafted it may be useful to attempt to answer it from the perspective of the opposing counsel. This technique will usually reveal some deficiencies that can be alleviated with proper editing. A proposed paragraph that would have been automatically denied from the first draft may be crafted to require an admission. Because statements in the pleadings are admissions, it is useful to make sure that there are no inadvertent mistakes.
§ 3.6.3 Alternative Complaint Forms
The structure of a complaint will be influenced by the nature of the claims and the complexity of the facts and issues. Some complaints, particularly federal court complaints and major state court complaints, will be structured in a way that presents the information in an alternative format to notice pleading. Federal court complaints often contain headings that describe groups of paragraph allegations relating to jurisdiction, parties, facts, causes of action, and remedies. This format provides a readily understandable way to present the case. An outline of a federal class action complaint may resemble this:
Introduction
The initial paragraph concisely explains the nature of the case.
Jurisdiction
This paragraph cites the source of federal court jurisdiction.
Parties
These paragraphs describe information about the parties.
Class Action
Several paragraphs detail those factors of Rule 23 that provide the bases for the class action.
Facts
These allegations describe the events giving rise to the action.
Claims for Relief
These sections delineate the claims, similar to the format of a multiple count complaint.
Remedies
The concluding paragraphs summarize the relief sought.
Several of these headings may be merged or eliminated. Other headings may apply and be used. The introductory paragraph provides a short description of the case to help the judge, law clerk, and opposing lawyer understand the case. Whatever format is used and whatever headings are included should serve the goals of the complaint.
§ 3.6.4 Federal Court Civil Cover Sheet
Some information about a federal court case will need to be provided on a form called a “Civil Cover Sheet” which must be obtained from the federal court clerk. The complaint must still contain information necessary for a well-plead complaint and to obtain specific relief. For example, checking yes in the Jury Demand box does not satisfy the requirement of the plaintiff to properly demand a jury trial. A separate demand or demand clearly displayed in the complaint (See Rule 38(b)) still needs to be made.


§ 3.6.5 Drafting Techniques and
Forms for Other Forums
Many of these same techniques are applicable to arbitration and administrative claim documents. Using objective words, attaching documents, structuring the claims, and being reasonable in requesting available relief, are all useful drafting techniques. As stated earlier, arbitration and administrative claim documents commonly need to include a thorough explanation of the relevant facts and supporting law, much more so than litigation complaints. It can be useful after composing an initial claim to ask whether the claim contains a reasonably specific, thorough, and detailed explanation of the claimant’s story and legal position. Arbitration organizations and administrative agencies may have available form claim documents that can be followed or completed.
GenAI can assist in drafting arbitration and administrative claims by ensuring clarity, objective language, and logical claim structuring while helping frame reasonable and well-supported requests for relief. LLMs can generate thorough narratives, ensuring that claims include necessary statutory and regulatory references. GenAI can also increasingly perform form completion by auto-filling required fields, formatting documents correctly, and flagging inconsistencies before submission. Additionally, LLMs might analyze prior arbitration and administrative decisions (perhaps obtaining those data from the client) to refine arguments, suggest persuasive language, and predict potential defenses. By aligning claims with forum-specific guidelines and procedural expectations, GenAI can help attorneys craft strong, compliant filings tailored to arbitration panels and regulatory agencies.
§ 3.7 Defendant’s Pleadings
§ 3.7.1 The Answer
The defendant must respond to each of the plaintiff’s numbered averment paragraphs. The typical responses are:
Denial.
Admission.
Partial denial and partial admission.
Denial for reason (e.g. insufficient information) of inability to admit or deny.
The defendant may include these responses through a separate paragraph for each of the responses or may list all of its admissions in one paragraph, while listing denials in the next, and those as to which the defendant is without knowledge or information sufficient to form a belief in the next.
Fed. R. Civ. P. 8 generally requires that the defendant assert one of these four responses to each numbered paragraph of the complaint. If a particular paragraph contains material that the defendant must admit and material the defendant will deny, the answer should respond accordingly, stating which averments of paragraph X are admitted and which are denied. Since under [Rule 8(b)](https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) all averments to which defendant does not specifically respond are deemed admitted, defendants will usually add a catchall paragraph denying each and every averment of the complaint except as otherwise admitted. This is sound practice.
Defendants are permitted under [Rule 8](https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and most state rules to deny generally everything averred in the complaint. This is, however, poor practice and defeats the purpose of pleading as a device for framing the issues and actual points of controversy for the parties. It should only be used if in fact there exist good faith reasons justifying a general denial. If time is critical and there is insufficient time to answer, an extension of time should be obtained, in order to obtain information to permit a more specific answer. In addition, a general denial does not put in issue topics such as capacity or conditions precedent, which under Rule 9 must be specifically challenged. However, an answer may use a general denial coupled with the pleading of affirmative defenses. The case files in Appendix B contain examples of various forms of answers.
GenAI can assist in generating responses in several ways. For example, LLMs can expedite the drafting of an answer by automating responses to each numbered allegation in the complaint. GenAI-backed tools can also use the client’s factual submissions (e.g., email, interviews) to categorize allegations into admissions, denials, or statements of insufficient knowledge, ensuring compliance with [Rule 8(b)](https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). These models can also flag when a response requires a specific challenge under Rule 9, such as contesting capacity or conditions precedent. By analyzing the complaint’s language and relevant legal principles, AI can suggest precise affirmative defenses, reducing the risk of waiver. Additionally, LLMs enhance accuracy by cross-referencing responses for consistency and generating structured, properly formatted answers that align with best practices. As discussed below, GenAI can help with various aspects of litigation, though the final judgment call should always be with the advocate.
§ 3.7.2 Affirmative Defenses
Certain matters must be set forth as an affirmative defense before the defendant will be permitted to raise these defenses to the plaintiff’s claims. Eighteen specific affirmative defenses such as accord and satisfaction, contributory negligence, estoppel, fraud, duress, statute of frauds, and statute of limitations are set out in Fed. R. Civ. P. 8(c). In addition, defendant must plead “any other matter constituting an avoidance or affirmative defense."^[48]^
The purpose of an affirmative defense is to provide notice to the plaintiff about the defenses and prevent surprise at trial. A defendant should plead as an affirmative defense any substantive defense based on statute or case law. In essence, an affirmative defense occurs when the defendant does not deny the truth of the plaintiff’s averments but goes on to contend that, even if the plaintiff’s averments are true, other facts prevent the plaintiff from obtaining relief from defendant. Whenever this is the substance of one of the defense positions, it should be pleaded as an affirmative defense. The plausibility standard of Twombly/Iqbal logically applies to all pleadings.
If an affirmative defense is not pleaded in the answer, the defendant is generally precluded from raising this defense at trial but may seek to amend the answer to correct the deficiency. Jurisdictions vary on how stringently they enforce the rule on waiver of affirmative defenses. As a basic practice, defense counsel should not count on grace from the court but plead all potentially available affirmative defenses. This sometimes results in a kitchen sink answer setting forth practically every defense listed in [Rule 8(c)](https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). This response borders on an ethical violation. With just a bit of care and thought, counsel can limit the affirmative defenses to those realistically capable of applying to the case after more facts are known.
In lieu of an answer or as part of the answer, the defendant may make any of the motions set forth in Rule 12 and discussed in Chapter 4. Other motions provided for in the rules may also occasionally be apt at this juncture but this is relatively rare. Like the complaint, the answer may allege alternative theories and claims, even if they are inconsistent. As discussed in Section 12.3, Rule 12 defenses alleging lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process are waived by the defendant if not made by motion within the 21 days allowed for responding to the complaint. These defenses are also waived if not raised as affirmative defenses in the answer.^[49]^
LLMs can help defense counsel identify and draft appropriate affirmative defenses by analyzing the complaint—coupled with your clients’ facts—and cross-referencing relevant rules, statutes, and case law. For example, LLM-backed tools can analyze caselaw to determine all required affirmative defenses for particular claims. GenAI can also ensure that each affirmative defense includes sufficient factual support to meet caselaw and statutory requirements. Additionally, LLMs can prevent the overuse of boilerplate defenses by filtering out those that lack a legal or factual basis. By generating well-reasoned, well-supported affirmative defenses, GenAI can help defense counsel craft stronger, more strategic pleadings that comply with procedural rules.
For affirmative defenses, the best practice is to set forth, in addition to the affirmances and denials of the complaint’s allegations, additional facts relevant to telling the defendant’s side of the story. When the affirmative defense is strong, the defendant can plead it with supportive detail. A generally phrased statement of a defense does not impose automatic disclosure obligations on the parties, while a defense pleaded with particularity will trigger these additional disclosures. Example of answers and affirmative defenses appear in the case files in Appendix B. A sample of an answer to the original Northstar Complaint in Section 3.3.6 with an affirmative defense, is:
STATE OF MITCHELL COUNTY OF SUMMIT IN DISTRICT COURT
Northstar Oil Company,
Plaintiff
ANSWER
v.
Civil Action No. __________
Southstar Oil Corporation,
Defendant.
Defendant Southstar Oil Corporation (“Southstar”), for its answer, states as follows:
Southstar is without information and belief sufficient to form a response to Paragraph 1 of Plaintiff’s Complaint.
Southstar admits that it is incorporated in Grand but denies that its principal place of business is Lexington, Grand.
Southstar denies the allegations of paragraphs 3 through 7 of Plaintiff’s complaint.
Southstar denies each and every averment of the complaint except as otherwise admitted in this Answer.
Affirmative Defense
- Events beyond the control of Defendant Southstar made it impossible for any alleged contract with Plaintiff Northstar to be completed, rendering any agreement legally unenforceable under the laws of the State of Mitchell.
WHEREFORE, Plaintiff is not entitled to any relief as alleged in its complaint and Defendant is entitled to recover costs, expenses, and fees incurred in defending this case.
February 1, 2025.
Darryl Defense
Steel & Iron
123 Main Street
Commercetown, New York 00000
(212) 111–1111
Fax (212) 111-1112
d.defense@steeliron.org.
Attorney Reg. No. 345637
Counsel for Defendant
Southstar Corporation
§ 3.7.3 Responses in Other Forums
Defendants in arbitration and administrative cases are often called “respondents.” and they respond with a “response.” For arbitration cases, respondents have the same options as defendants in judicial cases. They can admit, deny, or qualify averments and they can include affirmative defenses. The arbitration response is typically more detailed, specific, and thorough than a corresponding answer. For administrative cases, the respondent will likely respond in the same or similar way to a judicial answer. The same options are commonly available. In some administrative cases, a sufficient response is a narrative that explains the factual position of a respondent. The administrative judge, who reviews the factual statements of the petitioner and respondent, supplies and applies the applicable law.
§ 3.8 Counterclaims, Cross-Claims,
and Third-Party Complaints
§ 3.8.1 Generally
The Rules of Civil Procedure provide three tools by which a defendant in an action may assert claims against persons already parties to the action or against third persons who are not parties—the counterclaim, the cross-claim, and the third-party claim.
Counterclaims, cross-claims, and third-party claims may all be included in the defendant’s initial pleadings as a matter of right, without the need for motion for leave of court. In later stages of litigation, however, leave of court is necessary to assert these claims. These devices also generate many motions attacking their propriety. For example, including third-party claims may result in motions for separate trials of the main action and the third-party claims, for continuance of trial, for additional discovery, or for leave for the third-party defendant to serve a “fourth”-party claim.
Respondents in arbitration cases may also bring counterclaims and cross-claims and can bring a third-party claim against a new party who also is bound by the arbitration agreement. Respondents in administrative cases may or may not be able to bring additional claims depending upon the power and scope of the administrative case.
§ 3.8.2 Counterclaims
Counterclaims occur when a party defending a claim asserts its own claim against the original claimant. A defendant may have and can assert a counterclaim against the plaintiff. Counterclaims may only be asserted against an “opposing party.” Examples of a counterclaim appear in some of the case files in Appendix B.
Counterclaims may be either compulsory or permissive, a distinction determined by the relationship between the initial claim and the counterclaim. Failure to assert a compulsory counterclaim results in its being barred in later litigation. Fed. R. Civ. P. 13(a) makes a counterclaim compulsory if it arises from the same transaction or occurrence that forms the basis of the opponent’s claim. In a strict sense, the claim is not “compulsory,” for the court will not compel a party to assert it. If the counterclaim is not asserted, however, the party will not be allowed to assert it at a future time.^[50]^ Bar by operation of Fed. R. Civ. P. 13(a) exists only as to those claims that were in existence and capable of being pleaded at the time the answer or other responsible pleading was served. Similarly, a party need not assert as a counterclaim a claim that is already the subject of another civil action or one that requires joinder of third persons over whom the court cannot exercise jurisdiction if necessary.
Fed. R. Civ. P. 13(b) governs permissive counterclaims. It establishes the outer limits of what claims may properly be asserted. A party may assert as a permissive counterclaim any claim against an opposing party without regard to whether it arises from the same transaction or occurrence or has any other factual or legal connection to the claimant’s claim. Because these counterclaims are permissive, there is no bar if they are not asserted in the initial suit.
Permissive counterclaims raise two special types of motions. First, there must be an independent basis for subject-matter jurisdiction over permissive counterclaims,^[51]^ and motions to dismiss on this basis frequently occur. Second, because of the extremely liberal rules of joinder, a court may desire to separate the trials of the claim and the permissive counterclaim. Fed. R. Civ. P. 42(b) and similar state court rules specifically authorize separate trials, and the assertion of a wholly unrelated permissive counterclaim presents one of the stronger cases for ordering separate trials.
A counterclaim may be based on a claim with a statute of limitations that has expired. Although such a claim cannot be asserted for affirmative relief, the defendant can assert it as a setoff or recoupment notwithstanding that the statute of limitations has run. In addition, some courts hold that the filing of the claim in the main action tolls the statute of limitations as to counterclaims, at least as to compulsory counterclaims.^[52]^
Procedural rules typically permit a party to assert counterclaims not initially raised by the new pleading. Specifically, Fed. R. Civ. P. 13(e) permits a party to obtain leave to assert an after-acquired claim. An omitted counterclaim may also be added as an amended pleading under Rule 15. Leave of court must be obtained for either amendment to allow an omitted counterclaim or supplementation to allege an after-acquired counterclaim, unless the opposing party stipulates to add the counterclaim.
In arbitration cases the code of procedure will contain the rules for these types of claims and explain how and when they may be asserted. In administrative cases, the regulations will likewise describe how and when these claims are available, if at all.
LLMs can help defense counsel identify and assert counterclaims by analyzing case facts and matching them to legally recognized claims. Similar to how AI can help evaluate complaints, it can also assess whether the defendant has valid claims against the plaintiff, helping ensure that viable counterclaims aren’t overlooked. Just as with complaints, GenAI can also perform a claims-and-elements analysis across jurisdictions, aiding in choice-of-law analyses. By distinguishing between compulsory and permissive counterclaims, AI can also help defense counsel avoid waiver. Additionally, AI can help identify expired claims that may still be asserted as setoff or recoupment, ensuring that all available defenses and counterclaims are properly raised.
§ 3.8.3 Cross-Claims
Cross-claims are broadly defined as any claims a party has against any other non-opposing party in the case which arise out of the same occurrence or transaction as the main claims or counterclaims. For examples, a plaintiff may have a cross-claim against another plaintiff, and a defendant against another defendant. Like counterclaims, if a cross-claim is proper when served it does not become defective if the main action is dismissed as to the party against whom the cross-claim is asserted.^[53]^ Cross-claims do not require independent grounds for federal jurisdiction since they, like compulsory counterclaims, are considered within the court’s supplemental jurisdiction. However, dismissal of the main action may destroy subject-matter jurisdiction and require dismissal of the cross-claim remaining alone.
Cross-claims may be asserted as a matter of right in the cross-claimant’s initial pleadings. Claims wholly unrelated to the main action may not be asserted as cross-claims. If the cross-claim lacks an affirmative claim for relief and actually constitutes a defense, it is subject to dismissal. All cross-claims are permissive in that the rules do not require a cross-claim to be asserted in order to avoid being lost or barred. However, failure to assert a cross-claim could result in collateral estoppel against the party failing to assert the cross-claim.
Procedural rules may or may not establish timing requirements for cross-claims. Fed. R. Civ. P. 13 offers no guidance as to when cross-claims may be asserted. They clearly may be included in an otherwise timely pleading without leave of court. Thereafter, a party seeking to assert a cross-claim should obtain leave of court, which ordinarily will be liberally granted. If the proposed cross-claim is improperly asserted or fails to state a claim, the opposing party should lodge an objection or make a motion to dismiss.
In arbitration cases the code of procedure will contain the rules for these types of claims and explain how and when they may be asserted. In administrative cases, the regulations will likewise describe how and when these claims are available, if at all.
§ 3.8.4 Third-Party Claims
The plaintiff decides what defendants to include in a lawsuit. A defendant cannot add other potential parties it believes the plaintiff should have sued. The only way a defendant can add a non-party on its own motion is under federal rule 14 and similar state rules.
A party defending a claim may bring into the action a non-party who may be liable to the defendant if the defendant is found liable on the main claim. See* *Federal Rule 14(a). This is a third-party claim, and the procedure is also known as impleader. The purpose of permitting impleader is to promote judicial efficiency by reducing the number of actions necessary to resolve a dispute. Impleader is also available to a plaintiff defending a counterclaim. Similarly, a third-party defendant may implead “fourth”-party defendants.
The nature of the third-party claim differs somewhat from the complaint or counterclaim. These latter claims aver that the opposing party is at fault and owes something to the claimant. In contrast, the third-party claim does not say that the defendant is blameless and the third-party defendant is at fault. Rather, the third-party claim states that if the defendant is found liable, the third-party defendant should indemnify the original defendant because of the third-party defendant’s legal wrongs. If the original defendant contends that it is not responsible but that fault of a non-party caused the plaintiff’s harm, the defendant should attempt to persuade the plaintiff to name the non-party as a defendant or to have it involuntarily joined as a defendant in the action.
As a practical matter, the defendant will seldom care so much. If the sole original defendant is not found liable, that party suffers no harm. If the defendant is found liable, indemnity may be available from the third-party defendant. If the case is tried, the judge or jury will be asked to assess the liability of all parties before it and may not know whether the defendants are original, added, or third-party. The apportionment of fault controls the amount and proportion of indemnification between defendants.
If a motion for leave to serve a third-party complaint is made and in order, it should ordinarily be granted if “timely.” Although there is no statement of the timeliness requirement in the rule, courts may not grant a motion made so late in the proceedings that undue prejudice to the parties would result or the trial would be delayed. The third-party defendant, not having been a party to the litigation, is likely to need a substantial period of time to prepare the case for trial. The court can also deny leave if the third-party claim is obviously non-meritorious.
Because of the liberal rules permitting impleader, the rules also contain specific provisions for making an action manageable. Fed. R. Civ. P. 14(a)(4) permits any party to move to strike a third-party claim or for its severance or separate trial. By granting leave to permit a third-party claim, the court does not limit its power to later strike it or sever it. As a practical matter, however, the court is more likely to sever the claim than strike it altogether having granted leave.
Even without the specific language of [Rule 14(a)(4)](https://www.westlaw.com/Document/N3F437A30B96211D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N3F437A30B96211D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), the federal court or a state court operating under the federal format would be authorized by Fed. R. Civ. P. 42(b) to order a separate trial and by Fed. R. Civ. P. 21 to order severance. The court has broad discretion in determining whether severance or separate trials are appropriate. Ultimately, the court must balance the efficiencies of a single trial against the complexities that a single trial with multiple parties would engender. Prejudice to a party is often a determinative factor. If severance would work no hardship on any party and would simplify the proceedings, it should be granted.^[54]^
By now, you know what to do in arbitration cases: see if the third party is bound by the arbitration agreement and read the relevant code of procedure to find out how to implead this party. And, you also know what to do in administrative cases: read the regulations to see whether a third-party proceeding is available and, if so, how it is done.
§ 3.8.5 Tactical Summary
In formulating any of the offensive-defensive pleadings, the defendant mirrors plaintiff in the drafting of the pleading. The defendant should identify the target of the claim, state the facts giving rise to the claim, plead jurisdiction (unless pleading a compulsory counterclaim or cross-claim, in which case the court has supplementary jurisdiction over the matter), aver compliance with any conditions precedent or other requirements of statute or case law, state the applicable legal basis of the claim, plead injury and damages or right to indemnity, and plead requested relief, or any other special averments. In pleading these, counsel should employ the same format of short, numbered paragraphs with precise, brief, and objective language as found in a well-drafted complaint.
Counsel must also give some thought to whether even to assert a claim. Skilled lawyers may recommend dispensing with even meritorious counter-, cross-, and third-party claims in the interest of brevity, simplicity, cost-saving, or any other reason. Realistically, this will occur only when the offensive-defensive claim is small and potentially confusing and, often, expensive to prosecute as well. As a general rule, all claims and parties related to a dispute should be brought before one court for resolution. That’s normally simpler, cheaper, and more likely to result in justice. However, strategy may argue for keeping some parties out of the action so that they do not present a united front adverse to the client or introduce tangential issues distracting from what is the main event.
The assertion of a valid counterclaim may result in a favorable tactical reaction from an opponent. The “defendant” no longer is merely defending the case, but is now on the offensive. This conversion from defense to offense may significantly affect the plaintiff’s attitude toward resolution of the case, particularly regarding settlement. It may well be advantageous for a defendant to assert any valid counterclaims in an answer.
Tactical considerations may differ in arbitration and administrative cases. In arbitration cases, the common requirement that arbitration claim and response documents be detailed and thorough reduces the need to worry about or initiate discovery requests, because the answers are contained in the arbitration documents. And because arbitration hearings are typically promptly scheduled and heard by an expert arbitrator, there is much less of a need or use for various motions.
In informal administrative cases, the claim and response documents may be less inclusive and discovery may be limited. Much of what is known about the other side’s case is learned at the hearing. In formal administrative cases, the drafting techniques will parallel either litigation tactics or arbitration tactics.
LLMs can assist defense counsel in evaluating whether to assert counterclaims, cross-claims, or third-party claims by analyzing potential strategic advantages and risks. AI can also help advocates shadowbox: comparing alternative litigation strategies, helping attorneys assess whether adding claims strengthens the case or unnecessarily complicates proceedings. By evaluating how counterclaims may influence settlement negotiations, LLMs can provide insight into whether asserting them could pressure the plaintiff into a more favorable resolution. Additionally, AI can weigh the benefits of procedural simplicity against the potential value of additional claims, ensuring that counsel makes informed decisions about strategies that are both efficient and effective.
§ 3.9 Replies
A party who is served with a counterclaim will have to answer it as if it were a complaint or arbitration claim document. An answer or response to a counterclaim was historically called a reply and is now simply called an answer.^[55]^ Fed. R. Civ. P. 8 requires that it be denominated as such. Cross-claims and third-party claims usually must also be answered. However, affirmative defenses and factual averments need not and should not be answered with another pleading. The court may order on its own motion or permit a reply to affirmative defenses and other averments.^[56]^ Counsel will seldom bother for leave to respond since the rules automatically deem any matters raised in an answer denied without any further pleading.^[57]^
The reply to a counterclaim normally looks like a streamlined answer. The first paragraph may include the averment paragraphs admitted, the second may list the averment paragraphs denied, and the third may list those averment paragraphs alleging insufficient knowledge or information.
Plaintiff may want to set forth additional facts and plead affirmative defenses to the counterclaim such as setoff, accord and satisfaction, estoppel, or fraud. If the counterclaim triggers a counter-counter claim, the plaintiff should plead the facts showing entitlement to relief and the relief requested, just as in a complaint. At this juncture, the plaintiff should also raise any available [Rule 12](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motions or defenses attacking the counterclaim.
Although Fed. R. Civ. P. 8(b) and similar state rules provide that the failure to deny averments in a responsive pleading is an admission, this rule also states that averments in pleadings that do not require a response are automatically avoided. Counsel need get excited only about counterclaims denominated as such and third-party complaints. Answers to cross-claims and third-party claims, since they more often raise facts and legal issues outside the complaint, frequently require a response more closely resembling a defendant’s answer in detail and length. The general format and rules of the answer, including the strategic considerations involving all motions, will normally apply.
As a general rule, replies to counterclaims should be short and sweet. Examples of a reply are contained in case files in Appendix B. Reply requirements and options in arbitral and administrative cases mirror judicial pleading rules.
§ 3.10 Intervention and Interpleader
Claims of third parties may also be resolved through the use of two procedural devices in litigation: intervention and interpleader. Intervention permits someone who is not a party to an action to protect his, her, or its interests by joining the litigation. Intervention may be a matter of right or may be permissive. Fed. R. Civ. P. 24 and similar state rules govern the procedures relating to intervention and establish when intervention is a matter of right and when it is permissive. Intervenors must proceed by way of motion in either case, although the court has little discretion to deny intervention as of right. Following intervention, the intervenor is a party to the action for all purposes.
Interpleader is a procedure whereby a person holding property subject to multiple conflicting claims may require all claimants to have their claims resolved in one action. Interpleader relieves the party holding the property—frequently called the stakeholder—from having to risk multiple lawsuits or inconsistent results or judgments. A common example of such a stakeholder is an insurer faced with multiple claims from different beneficiaries. The stakeholder may either commence an interpleader action as a plaintiff, naming all claimed beneficiaries as defendants or, if one claimant sues the insurer, it can require all the other claimants to interplead by its answer. Fed. R. Civ. P. 22 and similar state court provisions govern interpleader actions. Interpleader is also governed by federal statute that allows nationwide service of process and liberal venue.^[58]^
Intervention may be an available procedure in arbitration and administrative law cases. In arbitration, there must be procedural rule authorizing the procedure, there must be an arbitration clause which binds all the parties to use arbitration, and the intervening party must have a significant interest to protect. In administrative cases before a tribunal with procedural rules allowing intervention, a party whose rights will be substantially affected by an administrative decision may be allowed to intervene. An interpleader proceeding may be available in an arbitration forum if all the parties have agreed to arbitrate the dispute.
§ 3.11 Class Actions and Special
Pleading Situations
Class action litigation requires special pleading and motions by the named plaintiffs and by the defendants. Sections 4.9.2 to 4.9.4 explain class action procedures, motions concerning class actions, the process of class action certification, and case management. Although class actions are not subject to special pleading rules regarding specificity and content, class action complaints and responses are generally more involved and detailed. Usually, the parties will pattern their pleadings after the specific class-action prerequisites contained in Rule 23.
Class actions are only available in arbitration proceedings if all of the parties and class members agree or if the arbitration rules authorize a class. It may be uncommon to have an arbitration class action. A reason parties select arbitration to resolve potential disputes is to avoid class action procedures. Parties may waive or prohibit class action procedures in arbitration agreements. Similarly, in administrative cases class actions are not typically available.
LLMs can help streamline the early stages of class action litigation by identifying potential class representatives and evaluating certification viability. GenAI-backed search tools can scan online forums, social media, and public records to locate individuals who meet class-action requirements. Sentiment analysis can assess whether potential class members have publicly expressed frustration or anger toward the defendant, helping attorneys target engaged and motivated representatives. AI can also review facts in light of class-action prerequisites, ensuring that pleadings include the necessary allegations to support certification. Additionally, LLMs can analyze arbitration agreements and administrative rules to determine whether class action procedures are available or have been waived, allowing counsel to anticipate and address procedural challenges.
§ 3.12 Amendment of Pleadings
§ 3.12.1 Introduction
Pleadings may be amended by right, stipulation, or court order. In federal court, amendment of a pleading is permitted as a matter of right if made prior to service of a responsive pleading such as an answer or motion for summary judgment.^[59]^ State rules often establish an absolute time limit as well, e.g., 20 days, regardless of the opponent’s tardiness in serving a responsive pleading. Thereafter, amendment is permitted only by leave of court. Ordinarily, amendment is liberally granted where justice so requires, so long as permitting amendment does not irreparably prejudice another party or require a substantial, last-minute delay in the trial.
Supplemental pleadings may also be appropriate in order to allege transactions, occurrences or events that have taken place since the date of the original pleading. Usually, a party must bring a motion to serve a supplemental pleading.^[60]^ The difference between a motion to amend the pleadings and a motion to supplement relates to the timing of the underlying events giving rise to the motion: if those events occurred before the action was commenced, then the complaint should be amended; if they occurred after the action was commenced, the complaint should be supplemented. The following sections discuss in detail the process of making a motion for leave to amend or supplement a pleading.
§ 3.12.2 Standards for
Permitting Amendment
[Rule 15(a)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) governs amendment of federal pleadings and permits amendments as of right if the amended pleading is filed and served before the opponent has served a responsive pleading. Responsive pleadings are those permitted by Rule 7(a): the answer and reply if permitted. [Rule 12(b)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motions to dismiss and summary judgment motions are not responsive pleadings. A party may amend of right after the opposition has made a [Rule 12(b) or Rule 56](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motion. If the pleading to be amended does not require a response, the amended pleading must be filed within 21 days of the date that the original pleading was served. The amended pleading not requiring a response can be served within a reasonable time thereafter, but must be filed with the court within the 21-day period to obtain amendment of right.
If the party seeking to amend misses these deadlines, it must either obtain written consent of the adverse party to amend the pleading or file a motion for leave of court to amend. [Rule 15(a)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) states that “leave shall be freely given when justice so requires.” This language has been liberally interpreted by the Supreme Court.^[61]^ Ordinarily, leave will always be granted if amendment is sought in the early or middle stages of the litigation.
In general, courts have expressed a preference for granting leave to amend and, if necessary, providing additional time and discovery to avoid prejudice to the respondent rather than denying the amendment. In complicated cases, the court weighs factors such as the movant’s delay, good or bad faith, motive, and harm if the amendment is denied against the harm to respondent if the amendment is permitted weighed on a scale preset according to the remoteness and necessity of the subject matter of the amendment.^[62]^ Of course, the parties can stipulate to amendment, a wise course in most situations in light of the liberality of [Rule 15(a)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).
Any number of pleadings can be amended for any number of reasons. A frequent use is to correct deficiencies such as failure properly to allege standing, jurisdiction, the proper and necessary elements of a removal petition, to correct misnaming of parties, or to rectify a defect that would result in [Rule 12(b)(6)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) dismissal. Amendment can obviously be used to add claims and defenses, and can also be used to change the legal theory of a claim or defense, the amount of damages, or the remedy sought.
Amendment is also frequently used to add, drop, or substitute parties, or the capacity in which persons participate in the action. Some courts have held that amendments seeking to add or drop parties are subject to Rule 21, which governs parties to an action, rather than the general amendment rule, [Rule 15](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Other courts have found [Rule 15](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) applicable to changes of parties regardless of, or in addition to, Rule 21. The distinction is largely one of semantics. The primary distinction is that Rule 21 does not provide for addition or deletion of parties by right or by written consent of the adverse party as does [Rule 15(a)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).
Typical reasons for denying the leave to amend are:
Attempted addition of new claims late in the case;
Prejudicing respondent by attempting to create more complex, expensive litigation;
Creating confusion through newly interjected issues;
Continuance to avoid prejudice to respondent would cause undue delay; and
Amendment would be futile because the amended pleading is subject to summary disposition.
[Rule 15(b)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) permits the pleadings to be amended to conform to the evidence presented at trial where issues not raised in the pleadings are tried by the express or implied consent of the parties. This can be done even after judgment has been entered. If one party begins to introduce matter not raised in the pleadings, the other party should promptly object. At this juncture, the party introducing the new matter may orally move for amendment of the pleadings. This motion for leave to amend is subject to the same standards and considerations outlined above but is less likely to be liberally granted.
[Rule 15(c)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) governs whether amendments to a pleading relate back to the date of the original pleading sought to be amended. It simply states that a claim or defense made in an amended pleading relates back to the date of the original pleading if the amended claim or defense “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” If the amendment changes the party against whom a claim or defense was originally made, it is subject to more stringent standards for relation back. Where the amendment changes parties, the amendment must relate to the facts of the original pleading and the new party must have both (1) had notice of the original action within the applicable statute of limitations or within the period provided by Fed. R. Civ. P. 4(m) for serving the summons and complaint; and (2) known or should have known that the action would have been against it but for the mistake of identity. The notice of the action need not be formal and need not be the result of any pleadings or papers in the original action received by the new party.
Federal [Rule 15(c)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) permits relation back where the proper defendant has received notice within the time provided for service of process. This rule reflects judicial decisions permitting this relation back extension. The relation-back is determined by the date that the proper defendant was aware (knew or should have known) that it was intended target of the lawsuit and that plaintiff’s understanding—and even its negligence in failing to initially name the correct defendant—is largely irrelevant.^[63]^
Claim and response documents in arbitration cases may be amended for similar reasons and in similar fashion as in judicial cases. Some administrative cases permit amendments and some cases do not. The applicable rules of the arbitration or administrative forum determine whether and how amendments may be accomplished.
§ 3.12.3 Amendment Procedure
Amendment of right can be obtained merely by filing and serving the amended pleading within the time limits of Rule 15(a). Where leave of court is required, so too is a motion for leave unless the adverse party consents in writing. Like other motions, the motion for leave should be made in writing, should state its grounds, the applicable rules or statutes, and should be accompanied by a notice of motion and a memorandum of law. Arguments in a party’s subsequent briefs generally do not amend complaints even though trial of an issue may constitute a de facto amendment of pleadings. Affidavits may be useful to prove facts creating a stronger argument for permitting amendment. Although notice of a motion for leave to amend must be given to all other parties to the action, it is not necessary to give notice to non-parties who might be interested in the motion. If leave is granted and they are served, non-parties may present any arguments they may have in their responsive pleadings or in a motion under Rule 12.
Most courts hold a hearing or oral argument on the motion for leave to amend, although this is not required. Many courts require the hearing to be scheduled before the motion is made and noticed in the motion. The actual motion for leave can be made at any time prior to judgment, but should be made as soon as the need for amendment is realized, preferably in the first half of the litigation time line.
In attempting to obtain leave to amend, the movant will wish to make the amendment seem reasonable, essentially a fine tuning of the original pleading and one that works no hardship to the opposing parties. If the amendment is demonstrably something new, the movant will want to show why it is necessary in the instant case and why it was not pleaded originally, even if the reason was oversight by counsel. The party opposing the motion for leave will want to characterize the amendment as new matter that prejudices it, belongs in another case, and should have been raised sooner by the movant.
If leave to amend is granted, the movant must file and serve the new, improved pleading within a reasonable time, preferably as soon as possible. The other party has 21 days to respond to the pleading, unless otherwise specified by the court or stipulated to by the parties. An amended pleading filed and served supersedes the original pleading, unless the amended pleading specifically refers to and incorporates the earlier pleading. The better practice is to seek leave to file an amended pleading which is complete in itself. Although the former pleading ceases to exist as a pleading in the case, statements in that document continue to be admissible as admissions. An order granting or denying a motion for leave to amend is not usually appealable unless exceptional circumstances exist.
§ 3.13 Supplementation of Pleadings
§ 3.13.1 Introduction
Rule 15(d) permits supplementation of pleadings. The rule permits a party, upon reasonable notice and such terms as are just and proper, to serve a supplemental pleading “setting forth transactions, or occurrences, or events which have happened since the date of the pleading sought to be supplemented.” A supplemental pleading addresses matters that have occurred after the original pleading. An amended pleading addresses things that may have existed but were not pleaded in the original pleading. Amendment of right is permitted under some circumstances. Supplemental pleading always requires leave of court, which requires a motion.
Examples of a supplemental pleading are new claims of damage incurred since the action commenced, changing the nature of the relief sought (e.g., from rescission to damages), pleading additional defenses, otherwise adding to an answer, and pleading events occurring subsequent to the action, where those events are of significant enough moment to require pleading rather than mere proof at trial. New parties necessitated by new events can also be added by supplemental pleading.
As with amended pleadings, the court has fairly broad discretion in deciding the motion, perhaps more with supplemental pleadings since these can usually be the subject of subsequent litigation with no injustice to the movant. Nevertheless, the federal pleading policy favors resolution of disputes in one action and thus encourages the court to permit the new claim.
In arbitration cases, the parties may supplement their claims or defenses because they have agreed to submit all their disputes to arbitration. A primary question is the timing of the request to supplement. The request may be denied because it is brought too late in the arbitration proceedings. If it is denied, a subsequent arbitration claim may be filed in a new arbitration. Some administrative cases will be appropriate for supplemental pleadings and the applicable rules will so provide for this procedure.
§ 3.13.2 Pleading
Supplementation Procedure
The procedure for seeking leave to make a supplemental pleading mirrors that for the motion for leave to amend. As noted above, there is no supplementation of right, only by leave of court. The motion for leave to supplement should be in writing, should state grounds and applicable rules, and be accompanied by notice of motion, a memo of law, and probably affidavits or other exhibits establishing that something has happened since the last pleading to require supplementation. The general rules regarding hearings are equivalent to those concerning motions to amend.
If the supplemental pleading is permitted, the other side must respond according to the terms of the order granting leave to supplement. Since the supplemental pleading involves something newer than the amended pleading, courts will generally allow 21 days to respond. As noted above, supplemental pleadings can involve changes that do not require a response. Rule 15(d) states that the time to respond shall be stated in the court’s order granting leave. On review, the appellate court will apply the abuse of discretion standard.^[64]^
Although the rule says nothing specific about timing, the motion for leave should be made as soon as practicable after the new event and should also be made well prior to any possible statute of limitations and relation back problems. The motion can be made at any time, even after judgment. The granting or denial of a motion to supplement is not usually appealable.
HDE v. Tri-Chem
MAJOR ISSUES IN POTENTIAL LITIGATION BETWEEN HOT DOG ENTERPRISES AND TRI-CHEM
The major issues include:
- Whether the vinylidene chloride component of Bond-Mor undergoes dehydrochlorination (chemical decomposition) when mixed with cement systems.
- Whether dehydrochlorination continuously releases chloride ions and causes corrosion of steel or iron placed in cement systems as reinforcement or as ties or connectors in cement systems.
- Whether the corrosion of reinforcing metal creates significant expansion forces causing cracking and structural failure of cement systems.
- Whether Tri-Chem issued a “warning” to Bond-Mor building owners leading them to believe that if Bond-Mor had been used with protected metal it would not cause or accelerate corrosion.
- Whether Tri-Chem’s internal research disclosed that free inorganic chloride ions were released from Bond-Mor’s Latex base.
- Whether Tri-Chem knew that Bond-Mor dehydrochlorinated in the presence of the cement used in mortar, releasing chloride ion, which causes corrosion of the metal in contact with Bond-Mor mortar.
POTENTIAL DEFENSES BY TRI-CHEM
The major defenses include:
- Whether the defense that these potential damages were completely unforeseen by the industry and by anyone or any expert relieves Tri-Chem of liability.
- Whether damages to Bond-Mor distressed buildings result from inadequate compensation for thermal stress or differential movement.
- Whether the combination of water, air, and iron or steel causes rust, whether or not Bond-Mor is present in mortar or concrete.
- Whether cracking is a result of freeze-thaw activity.
- Whether cracking is caused by the use of extremely porous mortar which allows excessive moisture to seep into the masonry.
- Whether fissures in masonry are caused by the creep of the structure and differential settlement.
- Whether mortar in filled horizontal expansion joints and shims not removed during construction causes brick panels to stack one on top of the other.
- Whether other causes, other than or in addition to dehydrochlorinated Bond-Mor, damage buildings: e.g., the use of rigid restraint panels, design errors, thermal movements, or a lack of functioning vertical and horizontal expansion joints.
- Whether events caused problems related to Bond-Mor that were beyond the control of Tri-Chem rendering it not liable, e.g., exceptional weather-related conditions or misfeasance or malfeasance by others.
- Whether the fact that there has never been any reliable independent industry study or survey that indicated that the ingredients of Bond-Mor may cause such damages insulates Tri-Chem from liability.
POTENTIAL CAUSES OF ACTION
Fraud: Tri-Chem had knowledge or reason to know the corrosion effects of Bond-Mor or Latex when used in contact with metal. Tri-Chem fraudulently concealed this knowledge from the architectural, construction, and engineering trades and from customers as part of its scheme to defraud plaintiffs and others, and to delay or avoid damage altogether for Bond-Mor induced corrosion and other product defects. Tri-Chem stated to architects, contractors, engineers, and customers:
Tri-Chem had extensively tested Bond-Mor before it was sold in the market.
Tri-Chem had successfully used Bond-Mor in masonry construction in Westland, California, the location of Tri-Chem’s headquarters.
Extensive testing and field applications verified that Bond-Mor:
- Was suitable for use in brick and concrete block construction containing embedded steel.
- Was less permeable to oxygen and moisture penetration than conventional mortar.
- Was suitable for use in a wet environment.
- Created a bond between brick and mortar that resulted in a wall at least four times the strength of conventional masonry walls.
- Did not require normal protective measures to prevent corrosion.
Strict Liability in Tort: When Tri-Chem represented and sold Bond-Mor for use in the construction of plaintiff’s buildings, Bond-Mor was in defective condition when it left Tri-Chem’s possession and control because Tri-Chem knew or should have known that Bond-Mor caused the corrosion of metal embedments usually found in brick and masonry construction using Bond-Mor, and that such corrosion caused, among other things, the brick and masonry to crack and fall from the buildings. In addition, Tri-Chem knew or should have known that after a period of time mortar with Bond-Mor would lose the ability to bond bricks so that the brick and masonry of the plaintiff’s buildings would crack and fall from the building. Bond-Mor was, therefore, defective and Tri-Chem failed to warn of the defective characteristics described above. Bond-Mor was unreasonably dangerous to the users or consumers of such product.
Breach of Warranty and Negligent Misrepresentation: Tri-Chem represented and warranted, expressly and impliedly, that Bond-Mor was an advanced and proper chemical additive for cement and mortar in masonry construction, was of merchantable quality, and was fit for use in masonry construction such as that of the plaintiff’s buildings. Tri-Chem knew or reasonably should have known that such representations and warranties were false and misleading, or were made without knowledge as to the truth or falsity. Further, Tri-Chem intended and knew or should have known that plaintiff would rely upon these representations and warranties:
Intentional Misrepresentation: Tri-Chem fully intended to defraud plaintiff and made numerous materially false and misleading representations. Plaintiff believed and relied upon these representations and incurred resulting damages.
Negligence: Tri-Chem had a duty to use ordinary and reasonable care to develop, manufacture, and sell Bond-Mor. Tri-Chem failed to use ordinary reasonable care and was negligent in the following particulars:
Failing to develop Bond-Mor properly.
Failing to test Bond-Mor properly.
Failing to manufacture Bond-Mor free from defect.
Failing to adequately warn of Bond-Mor’s defects and dangers.
Breach of Continuing Duty to Warn: Tri-Chem had knowledge of the defect and damages caused by Bond-Mor and such knowledge created a continuing duty to inform ultimate consumers such as the plaintiff.
Punitive Damages: In most jurisdictions a showing of fraud or intentional misrepresentation will permit a claimant to recover punitive damages where it can show, by clear and convincing evidence, that defendant acted with willful or reckless disregard and indifference to the rights of others.
Counsel Fees: Deceptive trade practices/consumer protection acts permit the recovery of attorney fees.
STATUTE OF LIMITATIONS
Tri-Chem’s fraudulent concealment of the defective nature of Bond-Mor and other illegal acts tolled any applicable statutes of limitations. Plaintiff could not reasonably discover and did not discover the defective condition of Bond-Mor within the limitations period. Further, these and other reasons support equitable tolling.
Practice Problems and Assignments
Jurisdiction and Pleading
Prepare to discuss in class or online subject matter jurisdiction in federal and state courts.
Prepare to discuss in class or online personal jurisdiction in federal and state courts.
Prepare to discuss in class or online venue in federal and state courts.
Prepare to discuss in class or online the differences in subject matter jurisdiction, personal jurisdiction, and venue between judicial cases and arbitration cases.
Prepare to discuss in class or online the differences in subject matter jurisdiction, personal jurisdiction, and venue between judicial cases and administrative cases.
Prepare to discuss in class or online notice pleading and pleading requirements in federal court cases.
Prepare to discuss in class or online service of process of federal court complaints.
Preparing a Complaint
Prepare to discuss in class or online the outline of a complaint for your client in one of the following cases or another case as assigned by your professor. Follow the directions from your Professor regarding how to perform this assignment. Consider:
(a) What functions (§ 3.3.1) and goals (§ 3.6.1) the complaint will serve.
(b) What the forum will be.
(c) Which parties will be included.
(d) What and how facts will be alleged.
(e) What causes of action will be asserted.
(f) What allegations will be generally alleged and what disputed facts will be stated with particularity.
(g) What, if any, documents can be incorporated by reference and attached.
(h) What relief will be sought.
(i) How the complaint should be structured.
(j) What will be excluded from the complaint.
You represent Hot Dog Enterprises in a lawsuit against Tri-Chem (Case A).
You represent Pat LaBelle in LaBelle v. Mitchell Arts Council (Case G).
You represent Martha Giacone in Giacone v. City of Mitchell (Case D).
You represent Juanita Vasquez in Vasquez v. Hot Dog Enterprises (Case F).
You represent Mack and Meg Luger in Luger v. Shade (Case H).
You represent the Mitchell Computer Club in Mitchell Computer Club v. Rainbow Computer (Case E).
You represent FJE and Farah and Jamal Ehran in *FJE Enterprises v. Arbor Vineyards *(Case L).
You represent Mike Mullarkey planning to sue Denial Mutual Insurance Company (Case N).
You represent ProTectCo Liability Insurance and need to react when policyholder Gravitas Grinch sends over the complaint against him in Estate of Dara Domestic v. Grinch and asks the insurer to defend him and try to settle the claim.
You represent Igor Investor, who is considering suing TechTrust Wealth Management (Case P involving AI/LLM activity and potential liability).
Complaint Drafting Exercises
Draft a complaint and include a caption, body, relief clause, and signature on behalf of your client in one or more of the following cases or another case as assigned by your professor. Draft appropriate allegations generally and draft some disputed fact allegations with particularity. Follow the directions from your Professor regarding how to perform this assignment.
You represent Hot Dog Enterprises in a lawsuit against Tri-Chem (Case A).
You represent Martha Giacone in Giacone v. City of Mitchell (Case D).
You represent Juanita Vasquez in Vasquez v. Hot Dog Enterprises (Case F).
You represent Pat LaBelle in LaBelle v. Mitchell Arts Council (Case G).
You represent Mack and Meg Luger in Luger v. Shade (Case H).
You represent the Mitchell Computer Club in* Mitchell Computer Club v. Rainbow Computer* (Case E).
You represent the Tymons in Tymons v. Allgoods and Razzle (Case M).
You represent Mike Mullarkey in Mullarkey v. Denial Mutual (Case N).
You represent Igor Investor and has fellow disappointed customers of TechTrust Wealth Management (Case P). Recognize that a class action complaint requires additional considerations and consult [Fed. R. Civ. P. 23(a)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) regarding the minimal prerequisites for pursuing a class action and then look at the types of class actions outlined in [Rule 23(b)](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Which of the three makes sense for the “Investor Class” to pursue? What does that require to be pled in the Complaint?
Research the differences and similarities between the federal pleading rules regarding complaints and the state court complaint rules applicable in the state of your law school. Prepare to discuss in class or online these differences and similarities.
Redrafting Complaint Exercises
- Presume in Northern Motor Homes v. Danforth (Case J) an associate attorney for the law firm representing Northern Motor Homes drafted the following proposed complaint. Redraft it.
DISTRICT COURT
| County of West | State of Summit |
|---|---|
| Northern Motor Homes, a Summit Corporation, |
vs.
John Danforth & Joan Danforth
COMPLAINT
Plaintiff for its Complaint and cause of action against the Defendants, John and Joan Danforth, asserts the following claims and allegations:
I.
Northern Motor Homes is a Summit corporation organized under the laws of Summit and doing business in the State of Summit at all times material to this litigation.
II.
Based upon information and belief, John and Joan Danforth are residents of the City of Mitchell, residing at 1479 Laurel.
III.
On or about March 25, 20XX, John Danforth and Joan Danforth (hereinafter the Danforths) signed, agreed to, and executed a contract with Plaintiff Northern Motor Homes (hereinafter Northern).
IV.
This contract called for the Danforths to pay a total of $71,953.20 in installments of $1,199.22 a month for 60 (sixty) months commencing the month after the contract date on May 25, 20XX and continuing until the last payment was paid.
V.
The Danforths breached this valid and enforceable contract by failing to abide by its clear and understandable terms.
VI.
Clause 4 of the Contract stated: “If Buyer defaults in any payment . . . Seller shall have the right, at its election, to declare the unpaid portion of the Total of Payments of this contract to be immediately payable and due.”
VII.
As a result of the Danforth’s default, the Danforths owe Northern (the Seller) the balance of the payments totaling in excess of $50,000.00.
VIII.
Northern has fulfilled all its obligations.
IX.
Defendants Danforths voluntarily and knowingly entered into the retail installment contract with the Plaintiffs.
X.
The Defendants have no legal justification for failing to pay this debt which is legitimate, correct, and overdue.
WHEREFORE, Plaintiff Northern Motor Homes prays that this court will enter a judgment in its behalf and against the Defendants for the balance owed, plus costs and disbursements, plus reasonable attorney’s fees authorized under clause 5 of the contract, plus interest, plus any other relief this Court deems proper and appropriate.
Kelly Krause Atty No. 12345 Doten and Krause 1000 First State Bank Mitchell, Summit 55400 777–789–1234 justicenow@net.com
Preparing a Responsive Pleading
Prepare to discuss in class or online an outline of a responsive pleading for your client in one or more of the following cases or another case as assigned by your professor. Follow the directions from your Professor regarding how to perform this assignment. Consider:
(a) What functions (§ 3.3.1) and goals (§ 3.6.1) it will serve.
(b) What parties will be included.
(c) What and how facts will be alleged.
(d) What defenses will be asserted.
(e) What relief will be sought.
(f) What, if any, documents can be incorporated by reference and attached.
(g) How the pleading will be structured.
(h) What will be excluded from the pleading.
You represent Tri-Chem in Hot Dog Enterprises v. Tri-Chem (Case A).
You represent the City of Mitchell in *Giacone v. City of Mitchell *(Case D).
You represent HDE in *Vasquez v. Hot Dog Enterprises *(Case F).
You represent Mitchell Arts Council in *LaBelle v. Mitchell Arts Council *(Case G).
You represent the Rainbow Computer Company in Mitchell Computer Club v. Rainbow Computer (Case E).
You represent Arbor Vineyards in *FJE Enterprises v. Arbor Vineyards *(Case L).
You represent Denial Mutual in Mullarkey v. Denial Mutual Insurance (Case N).
You represent TechTrust Wealth Management responding to the class action complaint in Investor v. TechTrust (a/k/a In re Tech Trust AI Fiduciary Litigation) (Case P).
Answer Drafting Exercise
Draft an answer to the complaint you or a classmate drafted or that appears in a case assigned to you by your professor. Include a caption, body, relief clause, and signature and include all appropriate affirmative defenses, counterclaims, cross claims, and third-party claims. Follow the directions from your Professor regarding how to perform this assignment.
You represent Tri-Chem in Hot Dog Enterprises v. Tri-Chem (Case A).
You represent the City of Mitchell in Giacone v. City of Mitchell (Case D).
You represent the Mitchell Arts Council in* LaBelle v. Mitchell Arts Council* (Case G).
You represent Hot Dog Enterprises in Vasquez v. Hot Dog Enterprises (Case F).
You represent the Rainbow Computer Company in Mitchell Computer Club v. Rainbow Computer (Case E).
You represent Arbor Vineyards in FJE Enterprises v. Arbor Vineyards (Case L).
Presume the complaint that appears in Problem 23 has been served. You represent the Danforths in Northern Motor Home v. Danforth (Case J).
Presume the Lugers sue Shade, Develco, and Gotbucks. You represent Sam Shade in Luger v. Shade (Case H).
Presume the Lugers sue Shade, Develco, and Gotbucks. You represent Develco in Luger v. Shade (Case H).
Presume the Lugers sue Shade, Develco, and Gotbucks. You represent Gotbucks in Luger v. Shade (Case H).
You represent ProTectCo Life Insurance in Grinch v. ProTectCo Life (Case O).
Class Discussions
Research the differences and similarities between the federal pleading rules regarding answers and the state court answer rules applicable in the state of your law school. Prepare to discuss in class or online these differences and similarities. Follow the directions from your Professor regarding how to perform this assignment.
Prepare to discuss in class or online complaints and their contents.
Prepare to discuss in class or online answers and their contents.
Prepare to discuss in class or online counterclaims and cross-claims and how they differ.
Prepare to discuss in class or online replies to required pleadings.
Prepare to discuss in class or online third-party claims and when and how a defendant may assert such a claim and against whom.
Prepare to discuss in class or online intervention and interpleader and how they differ.
Prepare to discuss in class or online amendments to pleadings including the standards for permitting amendments and procedures.
Prepare to discuss in class or online the supplementation of pleadings and procedures and how supplementation differs from an amendment to a pleading.
Prepare to discuss in class or online how meet and confer conferences between or among counsel may assist in bringing or defending motions, and what kind of motions and relief sought may be resolvable through compromise reached by counsel?
Pleading Problems
You represent Mike LaBelle in Miyamoto v. Snow Cat (Case C). After you conduct your preliminary investigation before commencing a lawsuit you interview Mike again. He confirms the information that you learned that Mariko told others and him that she loved to ride the snowmobile as fast as it could go and that he and Mariko did not have a happy marriage and that he planned to leave after the December holidays and file for a divorce. Does this information affect your judgment about filing a complaint on behalf of Miyamoto against Snow Cat? Why or why not? What factors influence your judgment?
You have been retained by the Mitchell Computer Club in Mitchell Computer Club v. Rainbow Computer (Case E). After you interview each of the club members you determine that several of them were not defrauded by Rainbow and that several others do not want to sue Rainbow. How does this information affect your judgment about what complaint to file and serve? What would you do?
You represent Mitchell Arts Council in LaBelle v. Mitchell Arts Council (Case G). Fran Barnoff advises you that there was a contract of employment for 30 weeks with Terry LaBelle and that the Board of Trustees ordered Fran to intentionally breach that contract and get rid of any harmful documents, which Fran did. How does this information affect your judgment about how you should respond to the Complaint of Terry LaBelle? What would you do?
You represent the Tymons in Tymons v. Allgoods and Razzle (Case M). They believe they have been wronged by Allgoods, Razzle, Jerzy, as well as the hacker. Advise them about their options. Consider the complaint or complaints you could compose regarding the possible causes of action and be prepared to discuss in class or online your ideas.
You represent TechTrust Wealth Management in Case P and have been sued by the Investor Class. Can you identify some avenues for bringing third-party claims and identify potential third-party defendants?
You represent Mike Mullarkey in Case N. Does Mullarkey’s bad faith claim against his insurer Denial Mutual require particularized pleading pursuant to [Fed. R. Civ. P. 9](https://www.westlaw.com/Document/N32A6F0B0B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N32A6F0B0B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)? Anticipating that Denial Mutual will make a Ruel 12(b)(6) motion claiming lack of plausibility of the claim, what allegations of the complaint will be helpful? Can you make them without having problems with Rule 11 compliance? How? How can you use the Complaint to expand the scope of discovery? As you will see in Chapter 5, Rule 26 defines available discovery to matters relevant to a claim or defense. [Federal Rule of Evidence 401](https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) defines relevant evidence as something that makes a fact more or less probably than it would be without the evidence or is “of consequence in determining the action.”
Gerald M. Stern, The Buffalo Creek Disaster (1976). Many law professors have also found Jonathan Harr, A Civil Action, to be an effective vehicle for illustrating litigation and procedure concepts through a story from the real world. ↑
Stern, attorney for persons injured in the massive Buffalo Creek flood, sought to obtain federal court jurisdiction. By naming the out-of-state parent company but not the in-state subsidiary, plaintiffs successfully established diversity jurisdiction in federal court. He sought federal court out of concern that state judges would be unduly deferential to the defendant coal company because of the economic importance of coal to West Virginia. In most cases in most jurisdictions today, bodily injury and property damage plaintiffs prefer state court for a variety of reasons that they perceive make state courts more receptive to their claims. ↑
For a good listing of the major civil procedure treatises, see § 2.2, supra, regarding legal research. ↑
- See, e.g*., AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (rejecting invocation of state common law of contract unconscionability to prevent application of bar to class action treatment of disputes contained in mobile phone vendor’s sales contract requiring arbitration of disputes). Accord, [Epic Sys. Corp. v. Lewis](https://www.westlaw.com/Document/I2f6eecca5cd811e8a7a8babcb3077f93/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2f6eecca5cd811e8a7a8babcb3077f93/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 584 U.S. 497 (2018)](https://www.westlaw.com/Document/I2f6eecca5cd811e8a7a8babcb3077f93/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2f6eecca5cd811e8a7a8babcb3077f93/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); *DIRECTTV, Inc. v. *Imburgia, 577 U.S. 47 (2015); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013). But see Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024)(involving exception for arbitration clause enforcement in contracts of transportation workers). ↑
After dismissal without prejudice, the claimant may bring the matter in another, more appropriate forum. The dismissal does not operate as an adjudication on the merits of the dispute and the rules of preclusion do not apply. By contrast, a dismissal with prejudice is a final adjudication on the merits and the case may not be brought again. ↑
See **[Hertz Corp. v. Friend, ](https://www.westlaw.com/Document/I26a46e39205a11dfb08de1b7506ad85b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I26a46e39205a11dfb08de1b7506ad85b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[559 U.S. 77 (2010)](https://www.westlaw.com/Document/I26a46e39205a11dfb08de1b7506ad85b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I26a46e39205a11dfb08de1b7506ad85b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)](https://www.westlaw.com/Document/Ie9839d6fb5c211d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie9839d6fb5c211d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Most interpreters regard Strawbridge as a decision interpreting the diversity statute rather than the limits of Article III of the Constitution. Consequently, Congress could amend the statute to confer subject-matter jurisdiction where the complaint reveals only minimal diversity (at least one plaintiff and at least one defendant from different states). Congress has shown no interest in amending the statute. ↑
CAFA is discussed in greater detail in David F. Herr & Michael J. McCarthy, The Class Action Fairness Act of 2005—Congress Again Wades Into Complex Litigation Management Issues, 228 F.R.D 673 (2005). ↑
- See *Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978). This view was codified by Congress in 1990. See 28 U.S.C. § 1367(b). ↑
See Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908); T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir. 1964). ↑
- See *Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986). There is also a line of cases providing that federal jurisdiction is established where federal law provides an essential ingredient of the claim or where resolution of the claim turned on an important federal issue. *See *Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921). See also [Gunn v. Minton](https://www.westlaw.com/Document/Id7bdad407b6d11e280719c3f0e80bdd0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id7bdad407b6d11e280719c3f0e80bdd0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 568 U.S. 251 (2013)](https://www.westlaw.com/Document/Id7bdad407b6d11e280719c3f0e80bdd0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id7bdad407b6d11e280719c3f0e80bdd0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(legal malpractice suit arising from alleged lawyer failures in patent litigation is not federal question case as claim is one of professional negligence sounding in state tort law). ↑
- See, e.g.,* 28 U.S.C.A. §§ 1333 (admiralty), 1334 (bankruptcy), 1338 (patent and copyright). ↑
- See, e.g., *Yellow Freight System v. Donnelly, 494 U.S. 820 (1990) (claims under Title VII of the 1964 Civil Rights Act, [42 U.S.C.A. § 2000e](https://www.westlaw.com/Document/NEA3563A0AFF711D8803AE0632FEDDFBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NEA3563A0AFF711D8803AE0632FEDDFBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) et seq., may be brought in either state or federal court). ↑
[488 U.S. 815 (1988)](https://www.westlaw.com/Link/Document/FullText?cite=488US815&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Link/Document/FullText?cite=488US815&VR=3.0&RS=da3.0). ↑
[28 U.S.C.A. § 1346(b)](https://www.westlaw.com/Document/N2D9A2EA0BCC311E2BEBC9F9311A0CF7C/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N2D9A2EA0BCC311E2BEBC9F9311A0CF7C/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See* [28 U.S.C.A. § 1367 (1990)](https://www.westlaw.com/Document/NCCC85ED0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCCC85ED0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). As noted above, in the statute, Congress used the term “supplemental jurisdiction” rather than “pendent jurisdiction.” The terms are synonymous in context. The term “pendent” has been long used, but “supplemental” is now the preferred term. ↑
- See* 28 U.S.C.A. § 1367(b). ↑
- See* 28 U.S.C.A. § 1367(c)(1)(B)(4) (court may decline to exercise jurisdiction where a state law claim substantially predominates or is novel or complex, where federal claims have been dismissed, or in other “compelling circumstances”). See also Royal Canin U.S.A. v. Wullschleger, 604 U.S. 22 (Jan. 15, 2025)(reviewing and summarizing statute and requiring remand to state court after federal claim eliminated by plaintiff’s amendment of complaint). ↑
But weightier than they used to be. *See Walden v. Fiore, 571 U.S. 277 (2014); **J. McIntyre Machinery Ltd. v. Nicastro, *564 U.S. 873 (2011); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980); Kulko v. Superior Court, 436 U.S. 84 (1978) (use of long-arm jurisdiction significantly limited). See also Mackensworth v. American Trading Transp. Co., 367 F. Supp. 373 (E.D. Pa. 1973)(finding jurisdiction based on single docking of ship). Mackensworth is further of note in that it is written entirely in verse; only Haydock seriously thought that a viable option for this book). ↑
[Shaffer v. Heitner](https://www.westlaw.com/Document/Ic1dc43259c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic1dc43259c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 433 U.S. 186 (1977)](https://www.westlaw.com/Document/Ic1dc43259c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic1dc43259c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(requiring that assertion of quasi-in-rem jurisdiction satisfy test of defendant having minimum contacts with forum state). ↑
[28 U.S.C.A. § 1391](https://www.westlaw.com/Document/N646C7DB03CBE11E1974AF6B4DC9A22F7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N646C7DB03CBE11E1974AF6B4DC9A22F7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (venue is proper in a district “in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated”). ↑
[Fed. R. Civ. P. 12(b)(3)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); 28 U.S.C.A. § 1406. ↑
[Gulf Oil Corp. v. Gilbert,](https://www.westlaw.com/Document/I6b494ff89c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6b494ff89c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 330 U.S. 501 (1947)](https://www.westlaw.com/Document/I6b494ff89c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6b494ff89c2511d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[28 U.S.C.A. § 1404](https://www.westlaw.com/Document/N451042803C9611E1BDE18D09F4C9FE75/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N451042803C9611E1BDE18D09F4C9FE75/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See *Leroy v. Great Western United Corp., 443 U.S. 173 (1979), on remand [602 F.2d 1246 (5th Cir. 1979)](https://www.westlaw.com/Link/Document/FullText?cite=602FE2D1246&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Link/Document/FullText?cite=602FE2D1246&VR=3.0&RS=da3.0) (suggesting that claim may arise in more than one district for venue purposes). ↑
[28 U.S.C.A. § 1391(a)](https://www.westlaw.com/Document/N646C7DB03CBE11E1974AF6B4DC9A22F7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N646C7DB03CBE11E1974AF6B4DC9A22F7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
For an excellent yet brief background of the history of pleading and the intra-bar battles that led to the pleading rules of the Federal Rules of Civil Procedure, see Geoffrey C. Hazard, et al., Civil Procedure §§ 1.3–1.8, 3.1–3.6 (6th ed. 2011). ↑
Where the defendant has made a timely waiver of service pursuant to Fed. R. Civ. P. 4(d) after receiving notice of the action from the plaintiff, defendant has 60 days to respond (90 if it received the complaint outside the U.S.). See Fed. R. Civ. P. 12(a)(ii). ↑
[355 U.S. 41 (1957)](https://www.westlaw.com/Document/Id79a1634517711dca1e6fa81e64372bf/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id79a1634517711dca1e6fa81e64372bf/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[550 U.S. 544, 563 (2007)](https://www.westlaw.com/Document/Ib53eb62e07a011dcb035bac3a32ef289/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_563" \o “https://www.westlaw.com/Document/Ib53eb62e07a011dcb035bac3a32ef289/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_563). ↑
- *See [550 U.S. 544, 570 (2007)](https://www.westlaw.com/Document/Ib53eb62e07a011dcb035bac3a32ef289/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_+(2" \o “https://www.westlaw.com/Document/Ib53eb62e07a011dcb035bac3a32ef289/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_+(2). ↑
36 See Amy J. Wildemuth, *What *Twombly *and *Mead *Have in **Common, *102 Nw. U.L. Rev. 276 (2008). ↑
[556 U.S. 662 (2009)](https://www.westlaw.com/Document/I90623386439011de8bf6cd8525c41437/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I90623386439011de8bf6cd8525c41437/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- *See [556 U.S. 662, 677–680 (2009)](https://www.westlaw.com/Document/I90623386439011de8bf6cd8525c41437/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I90623386439011de8bf6cd8525c41437/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). See also [Santa Clarita Valley Water Agency v. Whittaker Corp.,](https://www.westlaw.com/Document/I1ae93f70fb6011ee94fccc1986734565/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1ae93f70fb6011ee94fccc1986734565/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 99 F.4th 458 (9th Cir. 2024)](https://www.westlaw.com/Document/I1ae93f70fb6011ee94fccc1986734565/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1ae93f70fb6011ee94fccc1986734565/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(focus on adequacy of pleading should be whether it presents sufficient facts to make out a plausible case for relief). ↑
- See, e.g*., Arista Records, LLC v. Doe, 3, 604 F.3d 110 (2d Cir. 2010); Boykin v. KeyCorp., 521 F.3d 202 (2d Cir. 2008). ↑
See, e.g., [Knapp v. Hogan](https://www.westlaw.com/Document/Ie430de756e4a11e381b8b0e9e015e69e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_506_1109" \o “https://www.westlaw.com/Document/Ie430de756e4a11e381b8b0e9e015e69e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_506_1109)[, 738 F.3d 1106, 1109 (10th Cir. 2013)](https://www.westlaw.com/Document/Ie430de756e4a11e381b8b0e9e015e69e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_506_1109" \o “https://www.westlaw.com/Document/Ie430de756e4a11e381b8b0e9e015e69e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_506_1109) ([Rule 8](https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) can be violated both when a pleading “says too little” and when it “says too much.”). ↑
See, e.g., **[Weiland v. Palm Beach Cnty. Sheriff’s Office](https://www.westlaw.com/Document/I9324786325a511e5b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_506_1321" \o “https://www.westlaw.com/Document/I9324786325a511e5b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_506_1321)[, 792 F.3d 1313, 1321–23 (11th Cir. 2015)](https://www.westlaw.com/Document/I9324786325a511e5b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_506_1321" \o “https://www.westlaw.com/Document/I9324786325a511e5b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_506_1321)(describing four types of shotgun pleadings). ↑
[Fed. R. Civ. P. 8(a)](https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF530D700B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
One court has criticized the reuse of interrogatories from an earlier case, observing that they had “all been produced by some word-processing machine’s memory of prior litigation,” and relieving the recipient from having to respond. Blank v. Ronson Corp., 97 F.R.D. 744 (S.D.N.Y. 1983). Similar opprobrium awaits attorneys recklessly using prepared pleadings. ↑
[Kincheloe v. Farmer,](https://www.westlaw.com/Document/If9b619568e7c11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/If9b619568e7c11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 214 F.2d 604 (7th Cir. 1954)](https://www.westlaw.com/Document/If9b619568e7c11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/If9b619568e7c11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); [5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1308](https://www.westlaw.com/Document/I055820f3c77e11dbafedd374ced5fe6c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I055820f3c77e11dbafedd374ced5fe6c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
For a listing of types of special damages associated with common causes of action, see Geoffrey C. Hazard, et al., Civil Procedure § 3.18 (6th ed. 2011). ↑
- See *[Fed. R. Civ. P. 11](https://www.westlaw.com/Document/N71274E70B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N71274E70B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See, e.g*., EEOC v. Hibbing Taconite Co., 266 F.R.D. 260 (D. Minn. 2009) (assertion that opponent engaged in breach of mediation privilege is evidentiary contention, not affirmative defense). ↑
[Fed. R. Civ. P. 12(h)(1)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See* [6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1404](https://www.westlaw.com/Document/I94092bb8c77d11dba00dcdf21640de78/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I94092bb8c77d11dba00dcdf21640de78/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See *Brooke D. Coleman, et al., Learning Civil Procedure 374–76 (4th ed. 2022). ↑
- See generally* [6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1419](https://www.westlaw.com/Document/I9409c7fdc77d11dba00dcdf21640de78/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I9409c7fdc77d11dba00dcdf21640de78/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Fed. R. Civ. P. 7(a)(3)](https://www.westlaw.com/Document/NED074D20B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NED074D20B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See* [5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1185](https://www.westlaw.com/Document/Ia1805e504b1211dab83abce0f17e0f80/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia1805e504b1211dab83abce0f17e0f80/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
*See *[Fed. R. Civ. P. 12](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[28 U.S.C.A. § 1397](https://www.westlaw.com/Document/NCACD5220A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCACD5220A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Fed. R. Civ. P. 15(a)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
- See *[Fed. R. Civ. P. 12(d)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
[Foman v. Davis,](https://www.westlaw.com/Document/I319aeca69c2511d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I319aeca69c2511d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 371 U.S. 178 (1962)](https://www.westlaw.com/Document/I319aeca69c2511d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I319aeca69c2511d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971). ↑
- See **Krupski v. Costa Crociere, S.p.A., *560 U.S. 538 (2010) (unanimously reversing appellate court decision finding claim time-barred because lower court concluded amendment to sue proper corporate defendant did not relate back to date of initial complaint filed on eve of expiration of statute of limitations). ↑
[McHenry v. Ford Motor Co.](https://www.westlaw.com/Document/I673d92fb8f0411d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I673d92fb8f0411d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 269 F.2d 18 (6th Cir. 1959)](https://www.westlaw.com/Document/I673d92fb8f0411d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I673d92fb8f0411d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑