Updated 2015 by Jeffrey S. Gutman
The complaint frames the scope of the litigation. As detailed in Chapter 1 of this Manual, the complaint sets forth the facts, the legal theories, the relief requested, and advances the core theory of the litigation. While the attorney’s pre-litigation memo and, later, trial notebook may serve as her personal strategic guide, the complaint serves as the litigation map that will determine the route the parties take as they navigate pre-trial motions, discovery, settlement, and trial. It will also serve as the first public face of the litigation, describing the case to the parties, the media, the judge, the clerks, and the opposing counsel and will set the tone for future discussion and communication about the case.
While the complaint's role within a strategic framework remains as true as ever, two recent Supreme Court cases, Bell Atlantic v. Twombly1 and Ashcroft v. Iqbal2 , require the legal aid attorney accustomed to liberal notice pleading to rethink her approach to complaint drafting. Together, Twombly and Iqbal have entirely reinterpreted Federal Rule of Civil Procedure 8(a) and impose a heightened pleading standard requiring that allegations of unlawful conduct be plausible, rather than merely possible. Twombly and Iqbal have spawned an enormous volume of academic commentary3 and caselaw, as well as bills in Congress to restore prior notions of notice pleading.4 Every legal aid attorney must become familiar with Twombly and Iqbal and their circuit's evolving interpretations of the new "plausibility" standard.5 When drafting complaints, attorneys must anticipate motions for dismiss for failure to meet this standard.
Prior to drafting the complaint, the advocate must conduct a reasonable investigation under the circumstances. We turn first to a complex aspect of that investigation - contacting employees of the prospective adversary.
4.1.A. Pre-Litigation Investigation
Pre-filing investigation may include client interviews, interviews of witnesses, review of public and other records, correspondence with opposing parties, and requests for information pursuant to public records or Freedom of Information Act provisions. When possible, use pre-litigation investigation rather than formal discovery to establish facts.6 Even when the investigation requires the cooperation of adverse parties, that cooperation is more likely to be forthcoming before suit is filed.
A thorough investigation would often benefit from interviewing current or former employees of a potentially adverse corporate entity or government agency. Rule 4.2 of the American Bar Association Model Rules of Professional Conduct governs the permissibility of ex parte contacts with represented persons by channeling most communications through counsel. Rule 4.2 specifies:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.7
The primary concern behind the Rule 4.2 proscription “is to avoid overreaching caused by disparity in legal knowledge; it is designed to protect lay parties.”8 A violation of your jurisdiction’s ethical rules prohibiting ex parte contact with a represented party or person may carry sanctions that include preclusion of the evidence obtained from the contact, disqualification of counsel, or even dismissal of the action.9 When the represented person is an individual opposing party, application of the Rule’s no-contact provisions is relatively straightforward. Its application to corporate or governmental employees that work for an opposing party is less clear and has been the subject of a great deal of commentary.10
The comments to Model Rule 4.2, significantly revised in 2002, provide some clarification on the scope of the no-contact prohibition with respect to employees of an organizational party:
In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. . . .11
The comment thus establishes three situations in which ex parte contact with an organizational employee is prohibited: (1) if the “constituent” is regularly working with the organization’s attorney with respect to the matter being litigated; (2) if that person is authorized to “obligate” the organization regarding the matter; or (3) if the person’s act or omission with respect to the matter “may be imputed” for purposes of liability to the organization.12
While a number of states have adopted ABA Model Rule 4.2, many, including the District of Columbia, have not. Before contacting an employee of a potential corporate adversary, you must consult your jurisdiction's rule of professional conduct, and cases and bar opinions interpreting it. There are a wide range of applicable rules, from a blanket prohibition on contact through rules that are quite permissive. Contacting employees of government entities presents additional concerns: “[i]ndeed, while for most litigation purposes the law treats a government entity just like any other party . . . unlike a corporate party, the government also has a duty to advance the public’s interest in achieving justice, an ultimate obligation that outweighs its narrower interest in prevailing in a lawsuit.”13 The comments to Model Rule 4.2 also reinforce the constitutionally protected right to petition the government: “communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.”14
The cases are generally more permissive with respect to former employees. The Model Rule 4.2 comments provide: “consent of the organization’s lawyer is not required for communication with a former constituent.”15 Numerous decisions have held that an attorney may communicate ex parte with unrepresented former employees of a corporate party, even if they were in a managerial position at the time of the incidents giving rise to the litigation. This rule applies unless the former employees’ own conduct was involved in the disputed events, or they had access to corporate confidences.16 Once a managerial employee leaves the organization, she no longer speaks for the corporation, her admissions no longer bind the corporation, and she may, therefore, be interviewed ex parte without notice.17 Other former employees may also be interviewed, unless their act or omission in connection with the particular matter may be imputed to the organization for purposes of civil or criminal liability.18 No effort should be made, however, to induce the former employee to violate the attorney-client privilege to the extent his communications as a former employee with his former employer’s counsel are protected by it.
Advocates should be aware of the case law in their jurisdiction regarding the ethical constraints of contacting organizational staff of adverse parties. The practical difficulty of interpreting these standards remains. First, a lawyer seeking an interview often cannot know in advance whether the individual is covered by Rule 4.2 or not; often only the interview itself discloses the interviewee’s relationship to the organization and to the underlying transaction. Second, the rules of respondeat superior and vicarious admissions against interest, if applicable, are notoriously fuzzy, thus making it difficult to apply Rule 4.2 even when the facts are clear. Third, these rules differ somewhat from state to state and as between state and federal law. At bottom, if it turns out that the interviewee is covered by Rule 4.2, conducting the interview is prohibited; if the interviewee is not covered, conducting the interview is part of the lawyer’s duty of diligent representation, and she should actively seek whatever legitimate advantage may be had by conducting the interview outside the presence of opposing counsel. Yet, it is difficult to determine which path to take in situations where these principles are to be applied are varied and often unclear before the interview.19
4.1.B. Purposes of the Complaint
The complaint has at least five purposes: 1) to commence litigation, 2) to tell a persuasive story to a varied audience, 3) to sufficiently set forth the jurisdictional, factual, and legal bases of the case to avoid or limit the possibility of a motion to dismiss, 4) to enhance the usefulness of the defendant’s answer to the complaint and the ability to obtain useful information though formal and informal discovery and 5) to lay the groundwork for the resolution of the case through settlement.
4.1.B.1. Commencing the Litigation
A civil action commences upon the filing of the complaint with the court clerk.20 The filing date of the complaint ordinarily determines whether the lawsuit is within the applicable statute of limitations. The date of filing also sets the clock running for other dates, such as the deadline for serving the defendant with the summons and complaint.21 The date of service then triggers the timing of a series of pretrial procedures.22
When to file the complaint is a decision to be made based on factors beyond the need to meet the statute of limitations. Of course, if your client is facing an irreparable injury, you will need to file the complaint promptly along with or immediately followed by a motion for temporary and preliminary relief. If immediate harm is unlikely, the legal aid attorney may need to balance the client’s interest in a prompt resolution of the matter with the risk that the quick filing of a complaint may actually prolong the case in the long run. While complaints can be amended fairly liberally,23 doing so takes time and may ultimately delay resolution of the case. Often, the best approach is to spend the time needed initially to file a polished and thorough complaint.
You must also bear in mind that litigation is like a chess match. While the complaint is your first move, you must have subsequent moves in mind. Such tactics include filing a prompt motion for class certification, a motion for summary judgment on cases involving little or no discovery, or pressing for a prompt initial conference and discovery. Once you have contemplated your subsequent moves, reexamine your complaint to make sure that it adequately supports these strategies. These strategies may call upon you to begin drafting additional documents before the complaint is filed.
4.1.B.2. Telling the Story
The complaint is the first opportunity that an attorney has to tell the client’s story and to explain why the lawsuit has been filed. It is the first document that will be seen by the judge and law clerks and will be referred to by them repeatedly throughout the case. The complaint may also have an audience in the clients, the defendants, opposing counsel, the public, the media, and other observers. The complaint must therefore be logically and narratively compelling so that, when the reader reaches the final page, he feels that a wrong has been committed, that your legal claims are sound, and that the relief you are requesting is reasonable and deserved. In addition, the complaint is your first opportunity to present yourself as the attorney for the plaintiffs; thus, you want it to be error-free, well-written, persuasive, and reliable.
The best place to give a clear and concise summary (or core theory) of your client’s story is in the complaint’s preliminary statement. It is the legal “sound bite” that introduces the more technical and complex matters that follow and is what the judge and others rely most upon in understanding what your case is about. It should be focused and written in plain language. Drafting the preliminary statement is truly an art because, although it is neither an argument nor a detailed rehashing of the contents of the complaint, it must be convincing.
The balance of the complaint continues to tell the story of the case. The “facts” section is the primary place where the story is fleshed out. As in an affidavit, each paragraph of the factual allegations should set out a simple, objective statement of fact.24 Every fact that is necessary to plausibly support each of the legal claims, and the standing of the plaintiffs to advance them, must be included. It should allege with some precision which legal requirements have been violated, what defendants have done or have failed to do, and what relief is sought. You should “cross check” the complaint against your litigation and trial plan and, as you draft the complaint, have an understanding of how each fact alleged will be proved. Thus, as both a matter of style and strategy, you should generally avoid prefacing allegations with “upon information and belief.” If, however, an allegation lacks evidentiary support but is “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery,” it must be specifically identified in the complaint.25 Once the factual portion of the story is told, the sections on legal claims and relief should flow as logical extensions of the facts bringing the reader along with you.
When drafting, never merely copy allegations from another complaint without clearly understanding whether those allegations are appropriate in the case and verifying that the allegations comport with the current law in your district or circuit. Ask colleagues in your office to review the complaint as a double-check for factual clarity and legal sufficiency.
4.1.B.3. Protection Against Motion to Dismiss
The complaint must be sufficient to survive a motion to dismiss. Your thorough review of the law in the substantive area involved should reveal to you the typical grounds for motions to dismiss and the potential weaknesses in your case. It is helpful to imagine yourself as the associate in the opposing counsel’s firm or office assigned to draft a motion to dismiss your case, thus providing yourself with an opportunity to identify and address your complaint’s weaknesses before you file it.
Prior to 2007, the legal aid attorney could take comfort in the notion that all “the Rules require is a ‘short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.”26 For fifty years, the Court followed the principle set forth in Conley v. Gibson that complaints that supplied such notice should not be dismissed unless it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."27 The Supreme Court rejected efforts to impose heightened pleading standards as recently as 2002. In Swierkiewicz v. Sorema,28 the Court held that a plaintiff pleading Title VII and Age Discrimination in Employment Act claims was not required to plead each element of a prima facie case of discrimination.29 Noting that the McDonnell Douglas standard was an evidentiary, not a pleading requirement, the Court held that the complaint need only give “fair notice of the basis for [plaintiff’s] claim.”30
In Twombly, a 2007 Sherman Act case, the Court made it quite clear that the complaint must do more than merely provide notice to the defendant. Rather, it held that a complaint must contain facts that "plausibly suggest" a conspiratorial agreement rather than facts simply alleging conduct consistent with such an agreement.31 Burying the traditional Conley formulation, the Court cautioned that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."32 The complaint must do more than simply leave open a possiblity that the plaintiff could prove its case. Instead, the pleading must contain detail sufficient to create a reasonable expectation that discovery will surface evidence of wrongdoing. The Court insisted that it was not imposing a heightened pleading standard, but instead required allegations of sufficient detail to "cross the line from conceivable to plausible."33 The Court's clear repudiation of the Conley "no set of facts" language and extended discussion of the costs of discovery underscore a more rigorous pleading standard.34
The Court's 2009 decision in Iqbal took plausibility pleading beyond antitrust cases and imposed it quite rigorously. Iqbal was a Bivens case brought by a Pakistani arrested after 9/11 and housed in a maximum security prison under allegedly harsh conditions. To prevail, Iqbal had to plead and prove that the defendants at issue, the former Attorney General and the FBI Director, had adopted or approved of detention policies for the purpose of discriminating against him on the basis of religion, race or national origin.35 The Court explained that "the pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."36
With respect to the "plausibility" standard described in Twombly, Iqbal explained that "[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."37 The Iqbal Court noted that "[t]he 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.'"38 Iqbal's significance lies in operationalizing the plausibility standard.
The Court in Twombly acknowledged that a court must treat the complaint's factual allegations as true, "even if doubtful in fact."39 But, in Iqbal, the Court cautioned that courts need not accept as true "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements."40 Such recitals are regarded as legal conclusions not subject to the presumption of truth. The Court set out a procedure for separating legal conclusions from factual allegations:
[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.41
This procedure requires the court to engage in a two-step analysis that seems to go beyond what was required in Twombly. First, the court should identify which statements in the complaint or counterclaim are factual allegations and which are legal conclusions. Legal conclusions should not be assumed to be true and may, essentially, be discarded for purposes of the second step: assessing the factual assertions. Those assertions are not evaluated in overall context, but are stripped away from the discarded legal conclusions. "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."42 The Court regarded the complaint's allegations in Iqbal as conclusory because, in context, the Court discerned a more likely explanation for the detentions: Iqbal was rounded up as an undocumented alien because of his possible connections to the perpetrators of 9/11 as part of a terrorism investigation, rather than because of discriminatory animus.
The plausibility principle may have had particular impact in Twombly and Iqbal given the nature of the claims asserted in those cases. In Twombly, there was no direct evidence of collusive behavior in violation of the antitrust law. Rather, the plaintiffs alleged a scenario consistent with such behavior when, at the same time, there existed another equally or more plausible explanation for the apparent lack of competition that was entirely innocent in nature. Without factual allegations underlying an inference that the defendants’ behavior was collusive, the plaintiffs fell short of offering allegations that made their theory a plausible one in light of the alternative. Similarly, in Iqbal, the Court suggests that there was no direct evidence of unlawful discriminatory intent; that intent must be inferred from other facts. The facts alleged by the plaintiffs, the Court believed, were equally or more consistent with an explanation that the defendants acted without discriminatory intent. In short, no facts were alleged to bring the inferential gap between the behavior and the intent or motive for that behavior.
The Twombly/Iqbal standard may be particularly problematic in cases in which the defendant is the custodian of most of the facts underlying the complaint or cases turning on mental states of intent or motive. It is difficult to discern how to allege unlawful intent or purpose without using language, like "knowingly" or "willfully," that is not conclusory in nature. Without discovery, plaintiffs will have considerable difficulty unearthing support for such allegations, but such allegations will not permit the plaintiff to proceed to discovery. Iqbal also portends a significant expansion in judicial power and discretion. Rather than merely determining whether a complaint was sufficiently detailed to afford the defendant notice, a fairly objective inquiry, the federal judge must now use their "judicial experience and common sense" to determine whether allegations are more subjectively "plausible." In a sense, "plausibility" is in the eye of the beholder. Some judges may find challenges to the behavior of governments or corporations implausible because the allegations do not conform with intuitive or expected understandings.43
For the legal aid attorney, Twombly and Iqbal have significant consequences.44 They call for more detailed and fact-specific complaints, which, in turn, may require more rigorous pre-filing investigation and preparation. Lurking below the surface of Twombly and Iqbal are Rule 11 implications; how certain must the legal aid attorney be of the more detailed factual allegations required to satisfy the plausibility standard?45 The judge drawn to hear the case may have an immediate impact on the chances that the defendant will file a motion to dismiss and prevail on that motion. An increased possibility of a motion to dismiss may alter settlement dynamics. For new legal services attorneys, close consultation with senior staff attorneys is necessary to navigate through these more difficult and uncertain waters.46
4.1.B.4. Enhancing Usefulness of the Answer and Discovery
The manner in which the complaint is drafted can enhance the usefulness of the opposing party’s answer and facilitate initial disclosures. The defendant has a duty to answer factual allegations affirmatively and in good faith, and a plaintiff’s factual assertion is deemed admitted by the defendant when not specifically denied in the responsive pleading.47 Hence, the more specific and defined your factual allegations are, the less “wiggle room” your adversary has to answer those allegations evasively. As in most legal drafting, particular potential pitfalls are the use of compound statements, adjectives and adverbs, the conditional tense, and statements that include assumptions or facts not yet admitted or proved.
Similarly, the scope of permissible discovery turns on relevance to the claims advanced.48 The more complete your factual allegations are, the less room the defendant may have to argue that the discovery you seek exceeds the bounds of relevance to the claims made. To be sure, there may be cases in which strategy, timing, knowledge of the client or the degree of available pre-filing investigation possible under the circumstances, combined with the dictates of Rule 11, permit only general allegations to be made in the complaint. The presumptive goal of specificity can legitimately be overridden in particular cases.
4.1.B.5. Basis for Settlement
You will be thinking about settlement from the moment you begin to prepare the litigation. The complaint serves as the basis and framework for settlement throughout the case, especially if prompt settlement is desired or possible. Although there are exceptions when settlement can provide more relief than you can request from the court, in general, the relief portion of the complaint serves as the outside boundaries of what you can request from the defendant in settlement negotiations. Thus, consider including in the complaint not only what you want to receive but also what your opponent does not want to provide. Relief that may be of relatively little importance to you may be of great concern to your opponent. Giving up that relief may prompt more significant concessions by the defendant. The quality of the complaint will also serve to enhance your actual and perceived bargaining position as it reflects your skill as a litigator, the thoroughness with which you are approaching the issue, and the factual and legal strength of your case.
A detailed complaint may serve to the plaintiff’s benefit in court-ordered mediation processes.49 A well-drafted complaint followed by a typically boilerplate answer effectively tells a story from the plaintiff’s perspective to the third-party neutral. Atmospherically or substantively, this may create a measure of momentum for encouraging settlement on terms more favorable to the plaintiff.
4.1.C. Caption and Parties and Jury Demand
All components of the complaint deserve thought, including the case caption. For instance, the order in which the individual plaintiffs and defendants are listed may be important to the participating organization or may advance a public relations objective that emphasizes the compelling facts of the lead plaintiff. In the Lightfoot v. District of Columbia case, Elizabeth Lightfoot was selected as the lead plaintiff because of the strength of her individual facts, her commitment to the case, and capacity and willingness to serve the interests of the putative class well, both in and out of court. As required by Federal Rule of Civil Procedure 38, you should put your jury demand in the complaint, and most attorneys will do so in or near the caption of the complaint.
4.1.C.1. Individual, Group, and Class Plaintiffs
The first named plaintiff in a case involving more than one should be one best able to surmount jurisdictional challenges, such as standing and mootness, and most likely to see the case through to conclusion. Frequent changes to the case caption throughout the case can prove confusing. You may also wish the first plaintiff to have a particularly compelling set of facts and to be effective at articulating it publicly. At the same time, the concerns of other named plaintiffs may suggest a neutral ordering system.
After the preliminary statement and statement of jurisdiction, the complaint should identify the parties. The plaintiffs should be identified first, and in such a way that their standing and the relief they seek seem self-evident. The defendants should then be identified, indicating either the injury they inflicted or the role they played in the facts underlying the complaint.
The plaintiffs should include the people injured by the conduct that led to the litigation and who may benefit from the relief sought or granted. That relief may be retrospective or prospective in nature, or both. Whether a class action is appropriate will depend on the nature of the challenged conduct, the relief sought, and difficulties of joinder.50 If so, careful selection of class representatives is required, and the complaint will include class allegations. The complaint should be accompanied by a motion for class certification. That motion should be heard as quickly as possible as the court must determine whether to certify a class “at an early practicable time.”51
The plaintiff or plaintiffs may proceed anonymously where there is a good reason to do so. Such reasons may include allegations about the mental health, medical, or sexual history of the plaintiff or other sensitive information the revelation of which an association with the plaintiff would cause harm or embarrassment. If you choose to file anonymously, you file a copy of the complaint with the plaintiff’s name, a motion to the court explaining the reason for filing anonymously, and a complaint with a substitute name (e.g., Jane Doe). The order you prepare includes instructions for sealing the original complaint and permission to proceed henceforth with the substitute name. The defendant will be served a copy of the original complaint—the defendant is entitled to know who brought suit—and a copy of the signed order, which also requires the defendant to keep the name of the plaintiff confidential. Only in rare circumstances does the defendant object to an order of anonymity. Check the local rules of court for local practices regarding anonymous filing and redacting sensitive information.
The defendants should be identified with a close eye toward relief. As a rule of thumb, if you seek damages, seek them from the person who inflicted the injury leading to the claim for damages. By contrast, if you seek injunctive relief, you must name the highest-level officials, usually the department heads, since they can offer the most thorough and far-ranging relief. Injunctive relief starts at the top; damages start at the bottom. The bedrock principle is to include as defendants everyone necessary for relief.
The allegations as to the defendants should include not only their past, present, or future conduct but also their authority. This is obvious when you are seeking injunctive relief since officials may be enjoined only to act within their authority. But it is equally true when damages are being sought. You must particularly allege an official’s authority if you are seeking damages not only from that official but also from the official’s superior or the municipality or agency employing the official. Misconduct beyond the scope of employment rarely leads to vicarious or respondeat superior liability. Thus, allegations as to authority are important for both injunctive relief and damages.
Defendant classes may be named under Rule 23. This is equally true in many state courts. Naming defendant classes may be of considerable value when you bring an action against a city or county in a state where similar practices are followed in a number of cities or counties. In federal court, a state may not be sued in its own name. Since Ex parte Young, complaints for injunctive relief are filed against a state official, not the state itself.52 Suits against a state official in federal court may not seek damages from that person in that person’s official capacity if such damages ultimately would come from the state treasury.
4.1.D. Pleading Facts and Theories
For the strategic reasons outlined above, the facts should be drafted so that they tell a clear and compelling story guiding the reader to believe in the obvious need for relief. Casting the story in human terms makes it more immediate and, therefore, more compelling. As explained above, this factual presentation must be made in sufficient detail to satisfy the new plausibility standards and should be framed in terms that will resonate with the judge's experience and common sense. Where possible, refer to the plaintiff by name rather than by legal designation. Defendants can be personalized when you are emphasizing their acts as individuals, or they can be depersonalized to remove sympathy for them and remind the reader of their essential nature as an institution or bureaucracy. If possible, a non-attorney unfamiliar with the case should review the facts to make sure the story is clear and convincing.
A chronological framework may support the clarity of your presentation, but other narrative devices may be effective as well.53 Brevity and clarity may also be enhanced by attaching supplementary materials, such as notices, and by incorporating them by reference. As in any writing, pacing is an important element of your drafting. For instance, if the age and physical condition of your plaintiff is critical to your case, you may devote separate paragraphs to stating the plaintiff’s age, describing each physical or mental impairment, and the effect each impairment has on the plaintiff. On the other hand, if these facts are irrelevant to your legal claims, you may choose to include a range of identifying and background information in a single paragraph, which introduces your client without distracting from the more important core of the story you need to tell.
Although you are likely to have several claims, you will have one core legal theory—the legal theme of the case. That theme should be sounded in the complaint’s preliminary statement in a succinct but persuasive way. An example of a poor preliminary statement appears in the Jones v. Clinton complaint: “Plaintiff Paula Corbin Jones, by counsel, brings this action to obtain redress for the deprivation and conspiracy to deprive Plaintiff of her federally protected rights as hereafter alleged, and for intentional infliction of emotional distress, and for defamation.” The statement is written in overly stilted, legalistic language and is devoid of any mention of a core theory or persuasive connection between the facts and the legal claims. Were this not a case destined to capture the attention of the nation, the statement alone would not have commended the continued reading of the complaint.
Following the chronology of facts, the complaint should set forth the legal theories that lead to relief. These may be constitutional, statutory, or regulatory. They may include both federal and state theories. You must draft the theories clearly and cite their statutory, regulatory, or constitutional bases. 54 In complex regulatory cases, the legal aid attorney should reduce legal complexity to a minimum in the body of the complaint. The essential elements of the statutory and regulatory scheme should be set out in the complaint, but a detailed discussion should wait for briefing.
In drafting your legal claims, you are likely to have choices about grouping claims together or listing them separately. For instance, a claim might be “Defendant engaged in unlawful discrimination by denying plaintiff an apartment because of plaintiff’s national origin in violation of” and then listing the various statutes, regulations, and other sources of law. Or a claim might be stated as “Defendant violated the Fair Housing Act by (a) refusing plaintiff an apartment and (b) giving plaintiff information different from other applicants.” The key to well-crafted pleading of claims is to strive for clarity, to delineate them based on the themes of the case, and to ensure the preservation of claims should any others be dismissed. If claims are grouped incoherently, then a motion to dismiss may remove valid claims from your case. Clear delineation of your claims helps in your ongoing case management as you plan and conduct discovery and as you maintain time records for an application for attorneys’ fees.
4.1.E. Framing Relief
The prayer or request for relief is a required part of the complaint. It forms the opening gambit in any negotiations. It acts as the “ceiling” for what you can obtain either in settlement or from the court. It colors the way others, including the court and the defendant, perceive the lawsuit depending on whether they view what you want as reasonable or as overreaching. Thus, how you frame your request for relief is a strategic decision.
Each type of relief you want must be listed. Your requested relief might include the following:
- Injunctive relief (prospective, retroactive or both)
- Declaratory relief
- Compensatory damages
- Punitive damages
- Pain and suffering
- Statutory damages, such as treble damages or fines
- Reimbursement of funds paid or lost
- Class action certification, if applicable
- Attorney fees
Each type of relief must be supported by the factual allegations and legal claims that precede it. If injunctive relief is sought, there should also be a routine allegation that equitable relief is necessary because relief at law is inadequate. The request for relief should also contain a catchall request for “such other and further relief as this court may deem just and proper.” This clause is your protection if you seek to obtain more than or different relief from what you contemplated when you drafted the complaint. When your client reviews the complaint, you must explain the purpose of the request for relief; clients sometimes believe that the amount of damages listed is what they will get if they win the case or settle.
The specificity of the relief requested depends on the complexity of the case and the degree to which specifics are known at the time of filing. For example, if the relief requested is clear and specific, it may be best to state it: “Provide plaintiff with the public assistance benefits to which he was entitled from January 15, 2002, the date of his eligibility.” A request for systemic relief, however, may be phrased more broadly, with details to follow in a consent decree or remedial order. The important principle is to be broad and inclusive in the prayer for relief. Do not leave anything out.
Updated 2015 by Jeffrey S. Gutman
- 1. Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
- 2. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
- 3. See, e.g., Symposium, Pondering Iqbal, 14 Lewis & Clark L. Rev. 1 (2010); The Changing Shape of Federal Civil Pretrial Practice, 158 U. Pa. L. Rev. 421 (Jan 2010).
- 4. The Notice Pleading Restoration Act, S. 1504, 111th Cong. (2009); The Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (2009). For an excellent analysis of the new pleading standards, see the testimony of Professor Stephen Burbank, University of Pennsylvania David Berger Professor for the Administration of Justice, before the Senate Judiciary Committee. Appendix B of Professor Burbank's written testimony is a list of several recent federal decisions interpreting and applying these standards..
- 5. See Jane Perkins, Pleading Standards after Twombly and Iqbal, 43 Clearinghouse Review 507 (March-April 2010). This article contains a number of useful tips for meeting the challenges presented by the new standards.
- 6. For more guidance on pre-litigation factual investigation, see Chapter 1 of this Manual.
- 7. Model Rules of Professional Conduct R. 4.2 (2004).
- 8. In re Grievance Proceeding, No. 3:01GP6 (SRU), 2002 U.S. Dist. LEXIS 18417, at *6, 2002 WL 31106389, at *2 (D. Conn. July 19, 2002) (Connecticut version of ABA Rule 4.2).
- 9. See Penda Corp. v. STK, No. Civ.A.03-5578, 2004 U.S. Dist. LEXIS 13577, at *14, 2004 WL 1628907, at *7 (E.D. Pa. July 16, 2004) (imposing sanction of preclusion of evidence obtained from unauthorized ex parte contact, but denying request for disqualification of counsel).
- 10. See generally, Geoffrey C. Hazard, Jr. and Dana Remus Irvin, Toward a Revised 4.2 No-Contact Rule, 60 Hastings L.J. 797 (2009); Susan J. Becker, Discovery of Information and Documents From a Litigant’s Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles, 81 Neb. L. Rev. 868 (2003); Carl A. Pierce, Variations on a Basic Theme: Revisiting the ABA’s Revision of Model Rule 4.2 (Part 2), 70 Tenn. L. Rev. 321 (2003); Carl A. Pierce, Variations on a Basic Theme: Revisiting the ABA’s Revision of Model Rule 4.2 (Part 1), 70 Tenn. L. Rev. 121 (2002).
- 11. Model Rules of Professional Conduct R. 4.2 cmt. 7 (2004).
- 12. See, e.g., Paris v. Union Pac. R.R., 450 F. Supp. 2d 913 (E.D. Ark. 2006)
- 13. Frey v. Dept. of Health & Human Servs., 106 F.R.D. 32, 37 (E.D.N.Y. 1985) (citations omitted) (allowing interviews of lower level SSA employees under “alter ego” test which only restricts contact with employees with authority to bind the agency); see Rivera v. Rowland, No. CV95-545629, 1996 Conn. Super. LEXIS 3398, *15-16, 1996 WL 753943, at *5 (Conn. Super. Ct. Dec. 17, 1996) (allowing access to assistant public defenders as fact witnesses and noting that government defendants “are public persons and entities carrying on the public’s business. As such, they are compelled to strike a delicate balance and play a difficult dual role – vigorously defending the case, yet ensuring all the while that justice is done.”); see also NAACP v. Fla. Dept. of Corr., 122 F. Supp.2d 1335, 1342 (M.D. Fla. 2000) (allowing contact with prison workers in wrongful discharge litigation, despite contention that their actions and statements could be imputed to the defendant for liability purposes); Brown v. Or. Dept. of Corr., 173 F.R.D. 265 (D. Or. 1997) (allowing interviews of current non-management employees, employees whose conduct is not at issue, and all former or transferred employees); Vega v. Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977) (contact with welfare workers allowed in Medicaid EPSDT litigation).
- 14. Model Rules of Professional Conduct R. 4.2 cmt. 5 (2004); see id. cmt. 4 (“[T]he existence of a controversy between a government agency and a private party . . . does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”).
- 15. Model Rules of Professional Conduct R. 4.2 cmt. 7 (2004); see Frank v. L.L. Bean, Inc., 377 F. Supp. 2d 233, 236 (D. Me. 2005).
- 16. See, e.g., NAACP v. Fla. Dept. of Corr., 122 F. Supp.2d at 1335; Olson v. Snap Prod., Inc., 183 F.R.D. 539 (D. Minn. 1998); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341 (D. Conn. 1991); Lang v. Superior Court, 826 P.2d 1228 (Ariz. Ct. App. 1992); Strawser v. Exxon Co., 843 P.2d 613, 618 (Wyo. 1992). Some courts have declined to impose any limitations upon ex parte contacts with former employees. E.g., P.T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729, 737 (Ind. Ct. App. 2002); H.B.A. Mgmt. v. Estate of Schwartz, 693 So.2d 541, 545 (Fla. 1997).
- 17. See, e.g., H.B.A. Mgmt., 693 So. 2d at 546; Fed. R. Evid. 801(d)(2)(D).
- 18. Lang, 826 P.2d at 1233 (“[F]or example, if an employee hired to drive a truck is involved in an accident that occurs in the course and scope of employment, the fact that the employee leaves her employment should not determine the propriety of ex parte communications. Clearly, the employee’s acts or omissions in connection with any litigation that arises out of the accident can be imputed to the former employer for purposes of civil liability.”).
- 19. Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 38.6, at 38-10 (2004 Supp.); see IBM v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975) (emphasizing the importance of informal fact-gathering, versus restrictions inherent in having to take witness depositions).
- 20. Fed. R. Civ. P. 3.
- 21. Id. 4(m). Filing and service are discussed infra.
- 22. See, e.g., id. 12(a), 16(b).
- 23. Id. 15.
- 24. Id. 10(b). Of course, as explained in Chapter 2.2 of this Manual, the federal complaint must also allege the basis of jurisdiction. Fed. R. Civ. P. 8(a)(1).
- 25. Fed. R. Civ. P. 11(b)(3).
- 26. Conley v. Gibson, 355 U.S. 41, 47 (1957); Fed. R. Civ. P. 8(a).
- 27. Conley, 355 U.S. at 45-46.
- 28. Swierkiewicz v. Sorema, 534 U.S. 506 (2002).
- 29. Id. at 508; see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
- 30. Swierkiewicz, 534 U.S. at 514.
- 31. Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
- 32. Id. at 555.
- 33. Id. at 570.
- 34. For a subsequent, although brief, opinion holding that a pro se prisoner's Section 1983 complaint based on deliberate indifference to medical needs was sufficiently pled, see Erickson v. Pardus, 551 U.S. 89 (2007); see also Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010) (assessing pro se prisoner's complaint and finding some claims sufficiently pled and others not). More recently, the Supreme Court found an inartful complaint sufficient and somewhat oddly did so without citing either Iqbal or Twombly, but instead citing Swierkiewicz: "Because this case was resolved on a motion to dismiss for failure to state a claim, the question below was 'not whether [Skinner] will ultimately prevail' on his procedural due process claim, but whether his complaint was sufficient to cross the federal court's threshold. Skinner's complaint is not a model of the careful drafter's art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible "short and plain" statement of the plaintiff's claim, not an exposition of his legal argument. See 5 C. Wright & A. Miller, Federal Practice & Procedure § 1219, pp. 277-278 (3d ed. 2004 and Supp. 2010)." Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011) (citations omitted). Skinner should not be interpreted as weakening Iqbal and Twombly, which focus on the factual sufficiency of the complaint. The issue here dealt with the clarity of the legal claims.
- 35. Iqbal, 556 U.S. at 677.
- 36. Id. at 678.
- 37. Id. For a recent Supreme Court case in the securities law context finding, without substantial explanation, that the presence of medical reports showed a plausible causal link between use of a drug and adverse reactions, see Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323 (2011).
- 38. Iqbal at 678. When a set of pleaded facts gives rise to two alternate reasonable inferences, one tending to support liability and the other not, the plausibility standard is met. Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 281 (6th Cir. 2010). Swanson v. Citibank, 614 F.3d 400 (7th Cir. 2010) is an interesting pro se lending discrimination case in which the majority, over Judge Posner's dissent, took a rather gentle approach to applying Iqbal and Twombly, stating that, "[a]s we understand it, the Court is saying instead that the plaintiff must give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened, not did they happen. For cases governed only by Rule 8, it is not necessary to stack up inferences side by side and allow the case to go forward only if the plaintiff's inferences seem more compelling than the opposing inferences." Id. at 404. McCauley v. City of Chicago, 671 F.3d 611 (7th Cir. 2011) later distinguished Swanson on the facts.
- 39. Twombly, 550 U.S. at 555.
- 40. Iqbal, 556 U.S. at 678. For an interesting post-Iqbal decision authored by Justice Souter, sitting as a Circuit Judge, see Sepúlveda-Villarini v. Dep't of Educ. of Puerto Rico, 628 F.3d 25 (1st Cir. 2010). In Sepúlveda-Villarini, plaintiffs alleged that the defendants discriminated against them by failing to reduce their class sizes to accommodate disabilities. The court reversed the trial court's dismissal of their claims, holding that the facts pled in the complaint could infer a causal connection between the larger class size and deterioration in the teachers' health. Justice Souter wrote, "[a] plausible but inconclusive inference from pleaded facts will survive a motion to dismiss, and the fair inferences from the facts pleaded in these cases point to the essential difference between each of them and the circumstances in Twombly, for example, in which the same actionable conduct alleged on the defendant's part had been held in some prior cases to be lawful behavior." Id. at 30.
- 41. Iqbal, 556 U.S. at 679.
- 42. Id.
- 43. See A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185 (2010).
- 44. See Jane Perkins, Pleading Standards after Iqbal and Twombly, 43 Clearinghouse Review 507 (March-April 2010). Perkins offers fifteen useful tips for drafting complaints in the wake of Iqbal and Twombly.
- 45. See Fed. R. Civ. P. 11(b)(3). Note that Rule 11(b)(3) permits pleader to make factual contentions "specifically so identified" when they "will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." So far, there is little case law dealing with the use of allegations made under Rule 11(b)(3) to satisfy Iqbal. See Leary v. State Farm Fire & Cas. Co., Civ. No. 3:11-145, 2012 U.S. Dist. LEXIS 23898 at *35, 2012 WL 604338 at *12 (W.D. Pa. Feb. 24, 2012); Kemp v. City of Springfield, No. 10-CV-6420, 2012 U.S. Dist. LEXIS 30141 at *9, 2012 WL 775093 at *3 (D. Ore. Jan. 30, 2012); U.S. ex rel. Folliard v. CDW Tech. Servs, 722 F. Supp. 2d 20 (D.D.C. 2010); Elan Microelectronics Corp. v. Apple, Inc., 2009 U.S. Dist LEXIS 83715 (N.D. Cal. Sept. 14, 2009). In an interesting case, Penalbert-Rosa v. Fortuño-Burset, 631 F.3d 592 (1st. Cir. 2011), a public employee plausibly claimed that she was fired because of her political affiliation when a new governor was elected. Id. at 594. However, the complaint offered insufficient facts supporting her contentions that one of the named defendants was involved in the firing. Id. The First Circuit affirmed the dismissal of the complaint against the named defendants, but allowed the employee to amend the complaint to proceed against John Doe defendants. Id. at 597.
- 46. At the time of this update, few federal appellate courts have had occasion to distinguish Iqbal. Two of note are al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), rev'd on other grounds, 131 S. Ct. 2074 (2011), and Smith v. Duffey, 576 F.3d 336 (7th Cir. 2009); see also Gulf Coast Hotel-Motel Ass'n v. Gulf Coast Golf Course Ass'n, 658 F.3d 500, 506 (5th Cir. 2011); Hamilton v. Palm, 621 F.3d 816 (8th Cir. 2010).
- 47. Fed. R. Civ. P. 8(b).
- 48. Id. 26(b)(1); see also id. 26(a)(1) (mandatory initial disclosures).
- 49. See Chapter 6.4 of this Manual.
- 50. See Chapter 7 of this Manual. Programs that receive funding from the Legal Services Corporation (LSC) are prohibited from initiating or participating in class actions. 45 C.F.R. § 1617.
- 51. Fed. R. Civ. P. 23(c)(1)(a).
- 52. Ex Parte Young, 209 U.S. 123 (1909). See Chapter 8.2 of this Manual.
- 53. Elizabeth Fajans & Mary R. Falk, Untold Stories: Restoring Narrative to Pleading Practice, 15 Legal Writing 3 (2009).
- 54. In contrast to the more rigorous factual pleading requirements set forth in Twombly and Iqbal, the Court is more forgiving in the pleading of legal claims or theories. In Johnson v. City of Shelby, 135 S. Ct. 346 (2014), the plaintiff police officers sued the city after they were terminated after they publicized allegedly criminal activities of a city alderman. In their complaint, they cited the Fourteenth Amendment as the basis for their legal claims but failed to cite 28 U.S.C. § 1983 as the statutory vehicle for raising their constitutional claims. The Fifth Circuit affirmed the dismissal of the complaint for failure to cite Section 1983. In a per curiam decision, the Supreme Court reversed, holding that Rule 8 did not permit a complaint to be dismissed because of an “imperfect statement of the legal theory supporting the claim asserted.” Id. at 346. Instead, “[h]aving informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim.” Id. at 347. See also Smith v. Campbell, 782 F.3d 93 (2d Cir. 2015); Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014).