Pleadings and Motions - Module 2 of 5

Module 2 Pleadings and Motions

Pleadings – An Overview

When most people think of court cases, they picture lawyers arguing in front of a judge and jury. But, really, the majority of time consumed in most court cases consists of formal writing and responses. This formal writing breaks down into two categories: pleadings and motions. A pleading demands that the other party do something, while a motion requests that the judge in the case do something. These documents can be filed with the court before, during, or after the trial, though pleadings are typically filed at or near a case’s outset. All of these documents are governed by the rules of civil procedure[1].

            A pleading[2] is a formal written statement filed with the court by a party to a civil action. Pleadings can be categorized as complaints or answers, though both have variations. A party filing a complaint is the complaining party, while the other side is the responding party.

Pleadings set forth parties’ positions in the action, such as allegations, claims, defenses and denials. A pleading defines the issues and states the bare facts necessary to begin or defend the case. Pleadings are the foundational bases on which cases move forward.

The federal rules[3] allow seven types of pleadings[4]:

(1) a complaint;

(2) an answer to a complaint;

(3) an answer to a counterclaim designated as a counterclaim;

(4) an answer to a crossclaim;

(5) a third-party complaint;

(6) an answer to a third-party complaint; and

(7) if the court orders one, a reply to an answer.

Historically, pleadings could be “notice” pleadings or “fact” pleadings. A notice pleading merely gives notice of the allegation and the reasons for the lawsuit. Rather than offering proof, notice pleadings offer “allegations,” which are then proved or disproved during the proceedings.  “Fact” pleading, on the other hand, is fact-specific. Today, the federal rules and the rules in most states require only “notice” pleading, leaving the more fact-heavy inquires for motions and trial.

All pleadings have the same basic structure,[5] starting with the caption at the top of the first page. The caption states the name of the court at the top and, on the right side of the pleading, the type of pleading,[6] the case number (or docket number), and the name of the judge. On the left side is the list of the parties to the pleading, starting with plaintiffs.

Under the caption, then, is the body of the pleading. After the body of the pleading come signature lines for the attorneys[7] (attesting that it is filed in good faith) and a “certificate of service” telling the court how the pleading was delivered to the other side.

Under Rule 8(a), all requests for relief (the body of the pleading) must contain the following:

(1) a short and plain statement of the grounds for the court's jurisdiction;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief (such as compensation, attorneys’ fees and/or an injunction).[8]

Complaints

A “complaint” is the filing that starts a civil case.[9] The party filing the complaint is the “plaintiff” or the “petitioner” while the party being sued is the “defendant” or “respondent.” A complaint alleges certain behavior on the part of the defendant and asks the court for specified relief.[10] For instance, in a personal injury suit, the behavior might be the defendant causing an accident and the relief would be monetary compensation. In a divorce case, the behavior might be a reason for the divorce that conforms to the state divorce statute, and the relief would be a divorce.  

A complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”[11] Complaints are laid out in paragraph form, with one allegation per paragraph. Complicated complaints lay out multiple “counts,” with each count comprising a separate cause of action. Most state rules follow the same basic structure

So let’s look at a case to see how to construct a complaint.

Imagine that your neighbor borrowed a lawnmower and a chainsaw from you. After some time, he refused to give them back, and your relationship stopped being “neighborly.” You decide the only way to get your stuff back is to sue him. If you look back to Rule 8(a), you can construct your complaint in this way:

Jurisdiction and Venue.

You could file the case in the nearest court with jurisdiction over civil lawsuits. That court would have personal jurisdiction over the defendant, assuming the defendant lives in its sphere, and subject matter jurisdiction over the cause of action because it’s empowered to hear civil lawsuits. The cause of action would be the tort of conversion.

You also need to file the lawsuit in the court that has jurisdiction over lawsuits of the size of the one you’re filing. Many state courts have small courts with jurisdiction up to a certain amount, say $25,000. You might file in small claims court, for example, since the amount in controversy is small.  

After that is settled, you construct a jurisdictional statement that would state that the court that you’re filing in has both types of jurisdiction, and that the court is the proper venue to try the case.

A Short and Plain Statement of the Claim.[12]

This claim would have two counts—one each for the lawnmower and the chainsaw. Each count would state the activity involved in simple, almost bullet point format.

Count I would be that the neighbor borrowed the lawnmower on such-and-such a date and refused to give it back;

Count II would be that he borrowed the chainsaw on such-and-such a date and refused to give it back.  

Each count would consist of just a few sentences, each sentence containing just one fact. Each stated fact is a separate allegation.

And that’s about it. You do not need to over-explain or cite evidence when laying out claims.

Damages

The final allegation can sum up the “damages” to the party filing the complaint. Damages is a legal term that is a catch-all for any harm, physical or monetary, alleged to have been caused by the other party. The damages provision in a complaint might say something like “because of the actions of the defendant, the plaintiff has suffered damages of $250 due to the loss of use of his lawnmower and chainsaw.”

Demand for Relief

In the demand, you ask for relief. For example, “I demand that these items be returned to me and that defendant pay $250 as compensation for the time which I was deprived of their usage.”

The amount in demand might determine in what court to file the case (such as whether a case may be filed in small claims court or whether there is federal diversity jurisdiction). But it is often not necessary to state the dollar amount demanded. In any case, listed amounts are not binding on judges and juries deciding the case.

Then the complaint is signed, filed with the court, and served[13].

This, of course, is a very simple, but fairly standard complaint. Complex antitrust complaints can run into the hundreds or thousands of counts, while some simple small claims court cases do not even require formal complaints (but, rather, fill-in forms provided by the courts). 

Answers

The answer in a case is the defendant’s response to the allegations in the complaint. It is another form of pleading, and so must follow the same format as the complaint[14]. There are two types of responses in an answer: The first is responsive to the facts alleged and the second raises other defenses to the allegations.

The defendant must file the answer within certain time limits. This time limit “clock” starts running when the defendant is served with the complaint. If the respondent does not formally respond to the allegations within these time limits, the allegations are considered to be true and the case can be set for default judgement in favor of the plaintiff.[15]  

Under the federal rules, a response to a pleading must be filed within 21 days after service of process[16]. That time can be expanded in certain cases and is subject to exceptions. States may have different time limits, but rarely more than 30 days after service of process.

Responsive Answers

A responsive paragraph in an answer is an admission or a denial of a given allegation in the complaint. Every allegation in the complaint has to be admitted, denied or the answer can deny sufficient information upon which to form a belief as to its truth.[17]  

Any allegation that is admitted is considered established as a “binding judicial admission.”[18] Often, allegations like jurisdiction are admitted as a matter of course, but facts may also be admitted as a matter of good faith.

Denials must be made in good faith. A denial can be can be general, specific, partial, or a denial for lack of information or knowledge.[19] If an allegation is not addressed (except for the amount of damages), that allegation is considered to be admitted.[20]  Drafting answers carefully is critical as every stated fact in the complaint, from jurisdiction to each fact in the case, is a separate allegation that must be answered separately or it is considered admitted, and cannot be denied later.

Defenses

After either admitting or denying the paragraphs in the complaint, the answer must assert any defenses, partial or complete. A partial defense, if proved, can defeat part of the case. A complete defense can defeat the entire case.

A negative defense attacks the elements of the other party’s case, such as by stating that an allegation never happened. In our case, a negative defense might be the neighbor stating that the lawnmower really belonged to him. 

An affirmative defense does not directly deny the allegations of the claim that it is responding to. Instead, an affirmative defense alleges new facts that, if true, can defeat the claim. For instance, in the lawnmower case, an affirmative defense could be that the lawnmower and chainsaw were bought and paid for.

There are numerous affirmative defenses possible, including lack of subject matter or personal jurisdiction, wrong venue, mistake, fraud, duress, satisfaction of debt, assumption of the risk, statute of limitations or the catch-all “failure to state a claim upon which relief can be granted.[21]”  

Generally, an affirmative defense to a claim for relief must be asserted in the answer (or in a motion) or it will be waived.[22] Affirmative defenses are often accompanied by a motion to dismiss or other motion, particularly in questions involving jurisdiction, venue, and service of process.

Other Pleadings

The rules allow for a considerable amount of back-and forth in the pleading stage. These can be categorized as further complaints and further answers, and they follow the same format as those initial pleadings.

A counterclaim[23] is a pleading where the defendant is suing the plaintiff back. In our example, the guy who borrowed the lawnmower may counterclaim against you for trespass if you tried to go get your equipment out of his garage without permission. Counterclaims are usually attached to the initial answer, but they can be filed later if new facts come to light. Counterclaims are either mandatory or permissive. A mandatory counterclaim is one that arises out of the same facts as the complaint. It must be filed with the answer or it is lost. Any other counterclaim is permissive. The defendant may choose to bring it as a counterclaim or as a separate lawsuit later on.

Many complaints will list more than one defendant. A cross-claim is a complaint filed by one defendant against another defendant.[24] All format, time and service rules for complaints and answers apply to counter-claims.

            A third-party complaint can be filed by any plaintiff or defendant to bring another party into the case.[25] For instance, if a plaintiff sued Ford for defective brakes, Ford can bring a third-party complaint against its brake supplier. This happens frequently in large cases.

Rule 7 of the federal rules also allows several different types of answers beyond the initial answer of the defendant. All format, time and service rules apply to these pleadings as well. These include answers to counterclaims, cross-claims and third-party complaints. A court may order a party to reply to an answer that does not make a counter-claim, particularly when the pleadings themselves may resolve the case.

Amended and Supplemental Pleadings

The rules allow parties to amend their pleadings and to supplement them under certain circumstances.[26] A party may do this once as a matter of course, but then will have to petition the court to make any further changes. All service and response time frames attach to these changes. Reasons to amend pleadings usually involve newly-discovered facts and would include pleadings like permissive counterclaims.[27]

Motions on the Pleadings

A motion is a formal request to the judge to either take an action or to require that a party do something. An example of the former would be a motion to dismiss the case, while the latter might be a motion for a restraining order. We will focus on motions on the pleadings, which are covered by Rule 12 of the federal rules of civil procedure. These defenses may be written into the pleadings or they may be filed as separate motions. They are motions to dismiss a case or otherwise do something with the complaint because of structural problems with the complaint or the case itself.

Rule 12 motions are filed before pleadings are filed, if a responsive pleading is required. A Rule 12 motion can resolve a case before it gets started, allowing a court to come to a decision before the major part of the litigation begins. If it does not resolve the case, the answer must then be filed. A Rule 12 motion is an acceptable alternative to an answer for purposes of the time limitations on filing.

Rule 12 motions include:

-       Rule 12(b)(1): motion to dismiss because of lack of subject matter jurisdiction. This is filed when the case is in the wrong court, such as a divorce in bankruptcy court or a million-dollar case in small claims court.

-       Rule 12(b)(2): lack of personal jurisdiction. This motion states that the court has no power over the party filing the motion. This is similar to filing in the improper venue, which is a Rule 12(b)(3) motion.

-       Rule 12(b)(4): insufficient process, and Rule 12(b)(5): insufficient service of process, go hand-in-hand. These defenses state that either the pleading was not served on the party according to the rules,[28] or that the pleading never got to the party.

-       Rule 12(b)(6): failure to state a claim upon which relief can be granted. This catch-all defense argues that, even if all of the allegations are true, the other side has no case that would entitle it to judgment.

-       Rule 12(c): Motion for Judgment on the Pleadings. This motion alleges that, if all facts in the pleadings are true, the case must be resolved in favor of a party as a matter of law. Granting this motion may terminate the case or be granted in part, such as with respect to a single issue.

-       Rules 12(e): motion for a more definite statement, and Rule 12(f): motion to strike, have to do with a motion to alter or require clarification of the language in the other party’s pleadings.

-       Rule 12(h) states that most potential motions are waived if they are not filed, except for motions to dismiss for lack of subject matter jurisdiction, failure to state a claim or failure to join a necessary party to the action.

In our next module, we’ll turn to pre-trial issues, including service of process, joinder of parties, class action lawsuits and preclusion of issues or claims.