4.1 Drafting the Complaint
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.
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I.A. Purposes of the Complaint
The first and primary purpose of the complaint is to commence litigation. The second is to tell a persuasive story to a varied audience. The third purpose is to sufficiently set forth the jurisdictional, factual, and legal bases of the case to avoid or limit the possibility of a motion to dismiss. The fourth purpose is to enhance the usefulness of the defendant’s answer to the complaint and the ability to obtain useful information though formal and informal discovery. The fifth purpose is to lay the groundwork for the resolution of the case through settlement.
I.A.1. Commencing Litigation
A civil action commences upon the filing of the complaint with the court clerk./1/ 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./2/ The date of service then triggers the timing of a series of pretrial procedures /3/
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,/4/ 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 subsequent strategies. These strategies may call upon you to begin drafting additional documents before the complaint is filed.
I.A.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 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./5/ Every fact that is necessary to support each of the legal claims must be included. It should allege with some precision which legal requirements have been violated, what conduct defendants have done or have omitted, 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./6/ 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.
I.A.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.
This does not mean that every factual detail and subsidiary legal assertion must be spelled out in the complaint. 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.” /7/ The U.S. Supreme Court reaffirmed this principle in Swierkiewicz v. Sorema. /8/ In Swierkiewicz, 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./9/ 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.” /10/
More recently, however, the Court used somewhat more exacting language in a Sherman Act case in which 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./11/ Finally, burying the traditional Conley formulation,/12/ 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."/13/ 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 more than a mere suspicion or speculation of a right to relief, it must cross the line from possiblity to plausibility of relief. In short, the Court's clear repudiation of the Conley "no set of facts" language and extended discussion of the costs of discovery suggest a new tilt toward a more rigorous pleading standard. Although Bell Atlantic was an antitrust case, some of the language employed by the Court is likely to be repeated in motions to dismiss cases brought by legal aid attorneys. It should remind such attorneys of the need for a measure of detail in complaints to both deter such time-consuming motions and to defeat them should they be filed./14/
I.A.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. Pleadings should be “simple, concise and direct.” /15/ 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./16/ 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, 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. /17/ 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.
I.A.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./18/ 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.
I.B. Caption and Parties
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 to advance a public relations objective which 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 your review the section that follows, consult Document 1 of the Documentary Supplement to illustrate many of these points.
I.B.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. /19/ 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.” /20/
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 and 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.
I.B.2. Defendants
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./21/ 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.
I.C. Pleading Facts and Theories
For the strategic reasons outlines 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. 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.
In general, a chronological framework supports the clarity of your presentation. 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. 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.
I.D. 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
- Attorneys’ fees/22/
- Costs
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.
2. Id. 4(m). Filing and service are discussed infra.
3. See, e.g., Fed. R. Civ. P. 12(a), 16(b).
7. Conley v. Gibson, 355 U.S. 41, 47 (1957); Fed. R. Civ. P. 8(a).
8. Swierkiewicz v. Sorema, 534 U.S. 506 (2002).
9.Id. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
10. Swierkiewicz, 534 U.S. at 514.
11. Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1966 (2007).
12. Conley, 355 U.S. at 45-46 ("a complaint should not be dismissed for failure to state a claim unless it appears byond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.").
13. Bell Atlantic, 127 S. Ct. at 1964-65.
14. For a subsequent, although brief, opinion holding that a pro se prisioner's section 1983 complaint based on deliberate indifference to medical needs was sufficiently pled, see Erickson v. Pardus, 127 S. Ct. 2197 (2007).
17. Id. 26(b)(1); see also id. 26(a)(1) (mandatory initial disclosures).
18. See Chapter 6, Section IV, of this Manual.
19. 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.
20 . Fed. R. Civ. P. 23 (c)(1)(a).
21. Ex Parte Young, 209 U.S. 123 (1909). See Chapter 8, Section II, of this Manual.
22 . LSC-funded advocates may not include a request for attorney fees in the prayer for relief. 45 C.F.R. § 1642.
Updated 2006