Chapter § 2.06 Framing the Case and Writing the Complaint

• Jurisdiction: United States
• Publication year: 2020

§ 2.06 Framing the Case and Writing the Complaint

[1] General vs. Specific Pleading

The Federal Rules of Civil Procedure and many state courts use a general notice-pleading standard, not a specific fact-pleading standard.⁶¹ Under a notice-pleading standard, the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”⁶² Then again, a plaintiff must plead enough “factual content” to allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.”⁶³ Pleading only general facts may not be the best strategy, even in notice-pleading jurisdictions. For instance, the complaint can be an opportunity for a plaintiff to tell her story to the judge, who may not get an opportunity to hear it until the summary judgment stage. Or, if the plaintiff foresees that the defendant will attempt to transfer the case to another jurisdiction, she may preempt those efforts by specifically pleading facts related to jurisdiction. Specific pleadings can also highlight to the court particular issues that will arise and limit the defendant’s themes and theories. The plaintiff should be cautious in its pleading to avoid an excessively verbose claim for relief that is subject to dismissal.⁶⁴ The key is for the plaintiff to decide the goals of the complaint. If the plaintiff is simply commencing an action, a short complaint is sufficient. If the plaintiff has other goals, such as an early mediation, then presenting a compelling story in a well-pled complaint may be the better strategy.⁶⁵

Amending the complaint is almost always an option under federal and state rules if a plaintiff doesn’t get it right the first time. Under the Federal Rules, a party may amend her pleading once as a matter of course within “21 days after serving it” or “if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”⁶⁶ In all other cases, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.”⁶⁷ The Federal Rules specify that the “the court should freely give leave” to amend pleading “when justice so requires.”⁶⁸

[2] Filing Without Service

A “civil action is commenced by filing a complaint with the court.”⁶⁹ Thus, a party may file a complaint with the court without actually serving the defendant, provided, under the Federal Rules, that the complaint is properly served on the defendant within 90 days; otherwise, the complaint must be dismissed.⁷⁰ Delaying the formal service upon the defendant allows the plaintiff the advantage of opening the communication channels for resolution before litigation commences. Filing without service allows the parties to conduct settlement negotiations without the expense of meeting litigation obligations imposed once the plaintiff serves the complaint.

If the parties cannot reach an agreement within 90 days, the first party to file can effectuate service under Rule 4 and obtain the benefit of its original filing date with the court.⁷¹ In some instances, the defendant may file a declaratory judgment or other claims in its preferred forum, along with...