Anatomy of a Civil Lawsuit
[NOTE: This article is based on portions of The Reporter’s Guide to a Civil Lawsuit by Susan Tillotson Bunch, now with Thomas & LoCicero PL, in Tampa. Published by the Media & Communications Law Committee of the Florida Bar, the handbook serves as a resource guide for members of the media about topics in the legal profession.
We felt the article was so well written that it would be useful to a broader audience than just news reporters, so we have reproduced it here. We have heavily edited the material to supplement the content, and deleted legal citations to make it easier to read for the layperson.]
I. The Pleadings.
Pleadings are papers filed with the court that set forth the allegations which make up the Plaintiff’s cause(s) of action, or the Defendant’s responses to those allegations, along with any defenses or causes of action the Defendant may wish to assert.
Under the Florida Rules of Civil Procedure (Fla. R. Civ. P.), each allegation is set forth in a seperate numbered paragraph, and consists of ultimate facts, rather than legal conclusions or descriptions of the evidence (for example. “the Defendant struck the Plaintiff with a club,” rather than “the Defendant is guilty of battery,” or “Witness X observed the Defendant swing his hand while holding a club over the Plaintiff.”
The responses of the Defendant, in similarly numbered paragraphs, admit or deny each allegation, give a more detailed explanation, or state that the Defendant doesn’t know whether that individual allegation is true or not.
The pleadings serve first to set out the elements of the cause of action sued upon (as defined by the law), and second, to define the issues for trial. Allegations that are plead and admitted need not be proven, only those in dispute.
A. The Complaint.
A lawsuit is commenced by filing a complaint (or petition, in equitable actions such as Injunctions or Dissolutions of Marriage). This initial pleading filed by the Plaintiff consists of the factual allegations, a description of the legal claims based on those allegations, and a request for relief (such as to award the Plaintiff money damages).
Some pleadings are subject to special rules. For example, in mortgage foreclosures with regard to residential properties, the complaint must be “verified,” that is, signed by the Plaintiff under oath, stating that the allegations are true and correct.
In actions alleging injury or death arising out of medical malpractice, the pleadings are required to include a certificate that counsel has conducted “a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” “Good faith” may be demonstrated by a written expert opinion that there is evidence of medical negligence. Failure to comply with this section may subject the party to an award of attorney’s fees and costs. These special pleading rules are in addition to special pre-suit notice requirements applicable to medical malpractice claims.
A complaint frequently asserts more than one count. It may state different causes of action, even if they are not logiclly consistent. This practice is called pleading “in the alternative.” Sometimes the conduct complained about may support more than one cause of action, depending on what ultimate facts or evidence discovery reveals.
Although a party does not have to choose which theory it will proceed on initially, it can recover only once. Therefore, it will ultimately have to choose which one it wants.
A party also may plead claims that are inconsistent with each other. As one court has noted, this is because “the pleadings in a cause are merely a tentative outline of the position which the pleader takes before the case is fully developed on the facts.” This rule applies equally to defendants. Therefore, a defendant may raise defenses that are inconsistent with each other.
The relief most commonly sought is money damages, of which there are several kinds. Compensatory damages are intended to compensate the injured party for its loss. Punitive or exemplary damages are awarded beyond the actual loss and are intended to punish the wrongdoer and to deter similar conduct by others. The availability of punitive damages is limited by statute and court rule. This statute prevents a party from even including a claim for punitive damages in the complaint until that party has presented record evidence sufficient to support a jury verdict for punitive damages. This is important because the party seeking punitive damage is not entitled to the discovery of information concerning the other party’s financial net worth until the court is satisfied that a triable claim for punitive damages has been established.
A party also may seek injunctive relief, i.e., an order by the court directing a party to do some act or to refrain from doing some act. Once such an order is entered by a court, noncompliance with that order may be punishable as contempt of court.
A form of injunctive relief frequently requested is “specific performance,” which is essentially a direction to a party to perform its contract. Specific performance may be requested in real estate sales contracts and non-compete agreements. However, this remedy is not available to enforce certain types of contracts, such as personal service contracts.
A party also may seek declaratory relief. The trial courts have jurisdiction “to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” This may include the interpretation and declaration of rights under “a statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing.” The declaration may be affirmative or negative and “has the force and effect of a final judgment.” For example, declaratory judgment proceedings frequently are initiated by insurance companies seeking a determination of their obligation to defend against another action.
B. The Answer.
After the Defendant is served with the complaint, he must respond to it, usually within 20 days. There are several options at this stage.
Typically the Defendant files an answer, which responds to each allegation of the complaint and which may set forth one or more defenses. Under the rules of civil procedure, “affirmative defenses” must be asserted in a responsive pleading or motion to dismiss or they will be waived.
Affirmative defenses are those defenses that “avoid” rather than deny. For example, the statute of limitations is an affirmative defense. By raising this defense, the Defendant asserts that even if the Defendant committed all of the acts alleged by the Plaintiff, the Plaintiff has no cause of action because the action was not filed in a timely fashion. In that respect the claim is “avoided,” rather than denied.
C. Responsive Motions.
In lieu of, or in addition to, filing an answer, the Defendant may move to challenge the legal sufficiency of the claims raised by the Plaintiff by filing a Motion to Dismiss. This motion is not a “pleading.”
The Defendant may argue that the complaint “fails to state a claim,” that is, even assuming that the facts alleged in the complaint are true, the law does not recognize it as a cause of action. For example, a store patron sues the grocery store for damages after he is assaulted by a third person in the vacant lot next door. The grocery store will move to dismiss, claiming that the store patron has failed to state a cause of action because it has no duty to protect customers off the premises. An out-of-state defendant might argue that the court lacks “personal jurisdiction” over him or her because he or she lacks sufficient “contacts” with the state, such as an office or business transactions in the state. This is based on the federal due process clause. Before a court may exercise personal jurisdiction over a nonresident defendant, that defendant must possess “certain minimum contacts with the state” so that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.”
Other defenses that might be raised at this stage include failure to join an indispensable party, or lack of subject matter jurisdiction. Subject matter jurisdiction refers to the court’s authority or competence to preside over certain matters. For example, by statute, circuit courts lack subject matter jurisdiction to hear matters involving amounts less than $15,000.00. The subject matter for such actions is vested in the county courts.
Improper venue relates to the geographical location where the suit is filed, and insufficiency of process refers to the actual document which is served. To determine if the process is adequate, one should examine it to determine that it is signed by a clerk of court or the clerk’s deputy, it bears the clerk’s seal, a correct caption, the defendant’s correct name, the name of the appropriate state, the return date, the name and address of the party or lawyer causing process to be issued, and the name of any defendant organization. If it is not a summons, it should comply with the statute or rule that authorizes its issuance.
A defect in the “service of process” claims that the Defendant was not served appropriately: for example, he or she was not served personally, when required. Certain defenses are waived if not raised either by an answer (or other responsive pleading) or by motion to dismiss, such as personal jurisdiction, improper venue, and insufficiency of process or service of process.
A defendant also may move for “a more definite statement” if the pleading is so vague or ambiguous that the Defendant cannot frame a sufficient response to it; or the Defendant may move to “strike” portions of the complaint as “redundant, immaterial, impertinent or scandalous.”
In addition to its responsive pleading, a defendant may file a counterclaim, which operates like a complaint, except that the defendant is now the counterclaim plaintiff. Thus, a counterclaim sets out factual allegations, legal claims, and a request for relief, just like a complaint. A counterclaim requires a response by the “counterclaim defendant,” who was the plaintiff in the initial complaint.
Counterclaims may be “permissive” or “compulsory.” A counterclaim is “compulsory” and, therefore, must be raised in he current action if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.” On the other hand, a counterclaim is “permissive” if it does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim. This designation determines whether the counterclaim must be raised at this time or whether the defendant/counterclaim plaintiff can bring a separate action on the counterclaim.
E. Crossclaims and Third-Party Claims.
A defendant may file a crossclaim against another defendant or may file a third-party complaint against a nonparty. Crossclaims and third-party claims include factual allegations, legal claims, and requests for relief. They also require a response by the crossclaim or third-party defendants.
A party may amend the pleading once as a matter of right if there has been no responsive pleading. Otherwise, leave of court or written consent of the other side is required. Leave of court is “given freely when justice so requires.” Frequently a party will amend the pleading to cure any deficiencies addressed by a motion to dismiss. Amendments may be allowed even after trial under certain circumstances.
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