#12247 - The Plaintiff's Complaint - Civil Procedure

STAGE THREE: THE PLAINTIFF’S COMPLAINT

1. Complaint – FRCP 3, 8(a), 8(d), 9–11

   1. Synthesized Rule/Procedure

      1. Π initiates a lawsuit with the complaint, which must provide Δ with fair notice of the claims against her.

   2. Textual Rule

      1. Timeline: the lawsuit begins when Π files a complaint with the court. FRCP 3.

      2. Contents: the complaint must contain a short and plain statement of jurisdiction, the pleader’s entitlement to relief, and demand for relief sought. FRCP 8(a).

      3. Affirmative Defenses: Δ* must affirmatively state any of the following defenses in its pleading: estoppel, res judicata, statute of limitations, waiver, and other affirmative defenses (e.g. contributory negligence). FRCP 8(c).

      4. Pleading Special Matters: the standard for, e.g., fraud, is higher. See, supra, at General Rules of Pleadings.

      5. Format: must be titled 7(a)(1), “a complaint”; the title must name all of the parties. FRCP 10(a).

      6. Representations to the Court: the accuracy of the complaint is governed by FRCP 11, see, supra, at General Rules of Pleadings.

      7. Amendments: a complaint may later be amended. FRCP 15.

      8. Nonjoinder: Π must state the name of any necessary Θ not joined. FRCP 19(c).

   3. Analysis

      1. Contents

         1. Twombly “Factual Grounds” Standard (2007)

            1. FRCP 8(a) requires “fair notice” and factual “grounds” for the claim, because discovery is so expensive. Grounds need not be specific, but must be enough to suggest that the case is plausible and that the allegations are not merely “conclusory.” Bell Atl.

            2. Iqbal: FRCP 8(a) requires sufficient factual matter to draw legal conclusions that a claim for relief is plausible on its face; court should be able to make a reasonable inference that Δ is liable. Ashcroft.

               1. The difference between “well-pleaded” and “conclusory” is context-specific. Ashcroft.

         2. Conley “Notice Pleading” Standard (1957)

            1. All FRCP 8(a) requires is “notice pleading,” made possible by a liberal use of discovery. Unless complaint itself demonstrates that Π can’t prove facts justifying relief, complaint is OK. Conley.

            2. Swierkiewicz: FRCP 8(a) does not need to meet an evidentiary burden of production, which is reserved for FRCP 56 (summary judgment). Swierkiewicz.

            3. Π may only sue when there is “ripeness,” i.e. an actual controversy in which Π has “standing.”

      2. Affirmative Defenses

         1. Π may be required to plead an affirmative defense (e.g. “I did not pay the bill, but it was not noticeable.” See, infra, at Answer.

      3. Format

         1. A too-long complaint (e.g. 392 pages) would be unfair to Δ, who might accidentally admit something by not responding to it, Mendez v. Graham (D.N.J. 2002),

            1. but verbosity is not a basis by itself for dismissing a complaint, Hearns v. San Bernadino Police Dept. (9th Cir. 2008).

         2. A novelized complaint also is not “simple, concise, and direct.” McHenry v. Renne (9th Cir. 1996).

   4. Cases

      1. Bell Atl. Corp. v. Twombly (U.S. 2007, 179): Π pleaded that Δ restrained trade. Only evidence was parallel conduct and a statement by a CEO. S.D.N.Y. dismissed; 2d Cir. used Conley standard that dismissal required “no facts” could prove Π’s claim. S.D.N.Y.’s standard was correct: since the allegation was conclusory and alleged no grounds for a plausible claim, the complaint was insufficient.

         1. Stevens, J., dissenting: plausibility is the wrong standard because Δ’s conduct is plausibly violative of the law. Conley was meant to reserve dismissal for where discovery is futile, but court could have allowed limited discovery here. Majority is asking for an evidentiary standard, not a pleading standard.

      2. Ashcroft v. Iqbal (U.S. 2009): Π was arrested after 9/11. Sued in Bivens action against jailors and Attorney General. 2d Cir. upheld claim on ground that Twombly only applied to antitrust cases. Since Π did not have sufficient factual matter to state a plausible claim for relief (that, e.g., Ashcroft knew anything), dismissed.

      3. Conley v. Gibson (U.S. 1957): black Πs did not specify all facts of discrimination, but this is okay because they may learn more through discovery.

      4. Swierkiewicz v. Sorema, NA (U.S. 2002, 174): Π was demoted in favor of French guy and sued under Title VII. His complaint was dismissed for failing to satisfy the evidentiary burden of Title VII claims, but should have been allowed until at least summary judgment.

      5. United States v. Board of Harbor Commissioners (D. Del. 1977, 128): a simple claim alleging that Δ’s dumping of chemicals into the harbor was illegal was fair enough to notify Δ of claim against them.

2. Summons – U.S. Const. amends. V, XIV; FRCP 4

   1. Synthesized Rule/Procedure

      1. Within 120 days of filing the complaint, Π must serve Δ or notify and receive from Δ a waiver of service.

      2. Δ has 30 days to respond to waiver request. If yes, 60 days to answer complaint; if no, 21 days and costs.

   2. Textual Rule

      1. Due Process: state/federal deprivations of life/liberty/property require due process. U.S. Const. amends. V, XIV.

      2. Contents: must include the name of the court and parties and be directed to Δ. FRCP 4(a).

      3. The Clerk: must sign, seal, and issue the summons to the Π if properly completed. FRCP 4(b).

      4. Service: must be made with a copy of the complaint to the Δ, [but not by Π herself] FRCP 4(c).

      5. Waiver of Service: Π may ask Δ to waive service. Δ has 30 days to respond, and will get 60 days to answer complaint. Otherwise, Δ must pay costs of service, and only gets 21 days. FRCP 4(d); 12(A)(i).

      6. Completion: may be completed however state law of court or service governs, or by delivery personally to Δ, leaving at Δ’s home, or with an authorized agent. FRCP 4(e).

         1. Service of Corporation/Partnership/Ass’n: however state law governs, or by delivery to an officer or managing agent; if outside U.S., like a foreign individual. FRCP 4(h).

      7. Supplemental Bulge: when the court can’t serve FRCP 14 or 19 Θ in-state, service is okay within 100 miles of where summons was issued. FRCP 4(k)(1)(B).

      8. Timeline: Δ must be served within 120 days of filing the complaint, or court must:

         1. dismiss the claim without prejudice;

         2. order that service be made within a specified time; or

         3. extend the time for service if Π shows good cause. FRCP 4(m).

   3. Analysis

      1. Pennoyer “Consent” Standard (1878)

         1. This standard governs personal jurisdiction but also service. Service within the state is a valid means of establishing personal jurisdiction.

            1. Partnerships are considered groups of individuals; if one member of a partnership is in, e.g., New York, he may be served on company’s behalf. First American Corp. v. Price Waterhouse LLP (2d Cir. 1998).

      2. Notice

         1. For a state service of process to be valid, the DPC requires sending reasonable notice to all members who can be identified through reasonable effort. Eisen v. Carlisle Jacquelin (U.S. 1974).

         2. The standard for reasonable notice is personal service or something “reasonably calculated” to convey info as a person actually desirous of informing the party would. Mullane.

            1. Mailed notice is required in condemnation proceedings. Walker v. City of Hutchinson (U.S. 1956).

            2. Mail is better than posting on the door. Greene v. Lindsey (U.S. 1982).

            3. DPC only requires that government send notice, not that Δ receives it. Dusenbury v. United States (U.S. 2002).

            4. If a state learns that notice was not delivered, should do more. Jones v. Flowers (U.S. 2006).

            5. State need not take extraordinary effort to discover identity and location of party, but must send if reasonable. Mennonite Bd. of Missions v. Adams (U.S. 1983).

   4. Cases

      1. Jones v. Flowers (U.S. 2006): Ark. sent certified mail to Π notifying Π of tax sale of house. Ark. learned that the mail was never received, but put an ad in the paper and sold the house. Even though mail is typically a valid form of notice, Ark. could have sent a normal letter, posted notice, sent personal service, or sent a letter to “occupant” after learning that notice was not delivered.

         1. Thomas, J., dissenting: the test for “reason” is not most likely to reach Δ, but reasonable.

      2. Burnham v. Super. Ct. (U.S. 1990): N.J. Δ travelled to Cal. for business and was served with Cal. divorce by wife. Since he was in the state, state has P.J. over him.

      3. Nat’l Equip. Rental Ltd. v. Szukhent (U.S. 1964): Δ signed form authorizing Π to serve wife as their N.Y. agent. OK.

      4. Nobel Floral Inc., v. Plato (Cal. App. Ct. 2003): Π who filed suit in Cal. consented regarding a later suit from same transaction.

3. The Real Parties – FRCP 17

   1. Synthesized Rule/Procedure

      1. Π must sue in the name of the real party in interest, which may be an insurance company.

      2. Π must use real names of Πs unless there is substantiated evidence of reprisals. John Doe Δs are generally fine, but there may be problems with relating back.

      3. Δ may be sued how the law of their domicile or the state where the court is located so provides.

   2. Textual Rule

      1. Real Parties: An action must be prosecuted in the name of the real party in interest, although an executor, administrator, guardian, bailee, trustee, intended beneficiary of a contract, or party authorized by statute may sue in their own names. FRCP 17(a)(1).

         1. Failure to Join Real Party: Π must have reasonable time for real party to ratify, join, or be substituted into the suit before dismissal. FRCP 17(a)(3).

      2. Capacity to Sue or Be Sued: for individuals, law of domicile; for corporations, law of organization; for all other parties, law of state where court is located, except unincorporated associations may sue to enforce a substantive constitutional right. FRCP 17(b).

      3. Minors or Incompetents: a fiduciary, e.g. a guardian, may sue/defend on their behalf. The court may appoint one. FRCP 17(c).

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