3 Exercise Three – Pleading a Complaint

This exercise is about pleading, but more specifically, it is about pleading a complaint. Following discussion of the history of pleading under the common law and the codes, the exercise explores the requirements of pleading a complaint under the Federal Rules of Civil Procedure. It does not expand into the general topic of pleading, so subjects such as responses to a complaint, additional pleadings, and amendments to pleadings are not included. The exercise culminates in the pleading of a complaint for defamation, and to that end includes the facts of a hypothetical case plus discussion of the substantive law of defamation.

I. HISTORY OF PLEADING

A. Pleading under the Common Law

1. The Systems of Law and Equity

The judicial system in England developed two separate and distinct types of courts. These two systems of courts–law and equity–were independent of each other: they developed and expanded their jurisdictions separately and not as a complementary system. Even though these courts offered a litigant different types of relief, the litigant was forced to choose the correct court at his peril. A case commenced in one court could not be transferred to another court.

On one side of the divide were the three common law courts. King’s Bench originally heard criminal cases and pleas of the crown. Common Pleas originally heard cases between subject and subject; it was held at a fixed place, which came to be Westminster. Exchequer originally heard revenue matters, then expanded its civil jurisdiction with the fiction that a person wronged by another person is less able to pay taxes, so such a case was in reality a revenue matter. The three common law courts contested with each other to expand their civil jurisdiction and eventually came to have essentially concurrent civil jurisdiction.

In these courts, a plaintiff pursued an “action at law” by filing a “claim” or “complaint” before a judge (or in the case of Exchequer, before a baron). The common law courts employed juries to decide questions of fact. The relief that these courts could grant was legal, which meant almost exclusively money damages. The common law courts developed a rigid system of writs that limited the types of actions that could be brought, as discussed in I.A.2, infra. These courts also became somewhat hidebound by the accumulation of their precedents.

On the other side of the divide was the court of equity. The court of Chancery became available to prevent individual injustices that could occur through the rigid operation of the common law. This court developed parallel to, and independent of, the common law courts.

In Chancery, a plaintiff pursued a “suit in equity” by filing a “bill” before a chancellor. The court decided cases by the conscience of the chancellor, who would attempt to do justice in the individual case. To that end, Chancery originally refused to create precedents, but as the years passed, an oral tradition arose, and then written precedents developed. The chancellor decided all aspects of the case, including questions of fact. Chancery used no juries. The relief that this court could grant was equitable, which meant forms of relief–such as injunctions, specific performance, and rescission–that were designed to make the plaintiff whole when legal relief was not adequate.

This divided, independent system of law and equity flourished in England in the seventeenth and eighteenth centuries, so the system was imported into the American colonies. It became the legal system of the American states, and endured until the adoption of code practice in the mid-to-late nineteenth century (and in many states that refused the codes for long afterward). The English system itself was transformed in 1873 when Parliament combined all the courts into the Supreme Court of Judicature with both common law and equity jurisdiction.

2. The Writ System in the Common Law Courts

The part of the English common law system of most interest for study of the historical roots of pleading a complaint is the writ system .[i] Originally, a common law court secured jurisdiction over a civil case when the King, or later the Chancellor, issued a writ to the sheriff to arrest the defendant and bring him before the court. As the years passed, these writs took on differing forms that hardened into separate categories that became summaries of the type of case.

The primary contract (ex contractu) writs in the common law courts were debt (for a fixed sum of money or specific chattel owed), covenant (for breach of an obligation under seal), assumpsit (for breach of an obligation not under seal), and account (for receipts and disbursements in a continuing relationship). The primary tort (ex delicto) writs were trespass (for a direct and immediate injury to person or property),[ii] case (for an indirect injury to person or property),[iii] detinue (to recover a specific chattel), replevin (also to recover specific chattels), and trover (for money damages against a person who converted a chattel).

3. Problems with Common Law Pleading

The primary problem with the common law pleading system was it became more of a game of skill for lawyers than a method of resolving disputes on the merits. First, plaintiff’s attorney was required to choose the correct writ to plead the case, for the wrong writ would put plaintiff out of court. In most cases, the choice was easy, but in too many cases the facts lay between writs or in no writ at all. Second, pleadings did all the heavy lifting in cases, at least until the time of trial. Pleadings had the functions of 1) giving the opponent and the judge notice of the nature of the claim (or defense), 2) weeding out groundless claims (or defenses), 3) revealing the facts of the case, and 4) narrowing the issues. Third, because the pleading system had the goal of narrowing the case to a single issue of law or fact, the case might require many pleadings back and forth. For example, a defendant who responded with a plea of confession and avoidance (today an affirmative defense) did not deny plaintiff’s complaint, so no issue was joined; plaintiff was required to replead a replication. Should that replication also plead in confession and avoidance, defendant was required to plead a rejoinder. The string could continue. Also, because the goal was a single issue, the common law severely restricted joinder of claims and parties.

B. Pleading under the Codes

1. Development of Code Pleading

The first great reform of pleading was the code system. The state of New York in 1848 adopted a code of civil procedure based on the work of a committee chaired by David Dudley Field. This Field code was intended and designed to simplify pleading and remove many of the technicalities from civil procedure. To that end, the Field code abolished the common law writs in favor of one form of action to be known as a “civil action,” merged the systems of law and equity, simplified pleading and procedure, and allowed broad joinder of claims and parties. See generally Jack H. Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure § 5.1 (4^th ed. 2005). The primary method by which the Field code accomplished this feat was through its requirement that a party plead only “a plain and concise statement of the facts constituting each cause of action (defense or counterclaim) without unnecessary repetition.”

The Field code became a popular model for procedural reform. States over the ensuing years adopted their own codes of civil procedure based on the New York model. By the time of the promulgation of the Federal Rules of Civil Procedure in 1938, a substantial majority of states were code states.

2. Problems with Code Pleading

The codes accomplished the primary goals of simplifying pleading and removing technicalities and traps for the unwary. Problems remained. First, a code by definition was a statute; this made revisions and adjustments difficult because the legislature had to act. Second, the codes still required the pleadings to do the heavy pre-trial lifting of giving notice, weeding out groundless claims, revealing the facts, and narrowing the issues. Third, the most difficult problems grew out of the greatest reform of the codes: the centerpiece of the codes was the seemingly-simple requirement that a plaintiff need plead only “the facts constituting each cause of action.” Both “facts” and “cause of action” soon became litigation-generating centers of controversy.

a. Pleading ultimate facts

From the first Field code in New York through all of the code states, the codes required the plaintiff to plead ultimate facts–as contrasted with conclusions of law or evidentiary facts. On the one hand, pleading conclusions of law was deficient. A plaintiff who pleaded only that defendants “trespassed,” “assaulted” her, and caused her “to be confined” gave notice to the opponent and the court of theories of trespass, assault, and false imprisonment, but the complaint did nothing to reveal the facts, narrow the issues, or weed out baseless claims. See, e.g., Gillespie v. Goodyear Serv. Stores, 258 N.C. 487, 129 S.E.2d 762 (1963). On the other hand, pleading evidentiary facts was deficient. A plaintiff who merely recited the evidence of a real estate transaction failed to plead the ultimate fact of the right of possession. See, e.g., McCaughy v. Schuette, 117 Cal. 223, 48 P.2d 1088 (1897). This could result in prolixity, and ambiguity of inference; for example, if plaintiff pleaded a decedent delivered $5000 to defendant, the inference of whether it was to be a loan or a gift was not clear.

A complaint that pleaded conclusions of law could be challenged. A complaint that pleaded only evidentiary facts could be challenged. Since they could be challenged, they often were challenged, especially because an “ultimate” fact was difficult to identify. Consider this small hypothetical. Plaintiff wishes to sue for slander because at a student government meeting defendant announced that plaintiff stole books from his library carrel. How should the key allegation read? What is the ultimate fact? Here are three candidates:

–Defendant slandered plaintiff.

–Defendant said plaintiff stole books from him.

–Defendant imputed dishonesty to plaintiff.

The first allegation is insufficient as it is a conclusion of law. The second allegation is insufficient as it is an evidentiary fact. The third allegation is sufficient as it is an ultimate fact.

b. Pleading a cause of action

The codes required plaintiff to plead the facts constituting a “cause of action,” but did not offer any definition of the term of art. Controversy quickly developed over what a cause of action required. Must the plaintiff state the legal theory of recovery? How many facts must the plaintiff plead? Perhaps even more important, how would a cause of action be defined and bounded for purposes of res judicata? Commentators disagreed vehemently. Courts at all levels, including the Supreme Court of the United States, labored to define a cause of action both in the individual case and in a comprehensive fashion.[iv] Eventually, two major positions on “cause of action” emerged.

One position was the “primary right” theory, as advocated by Professors John Norton Pomeroy and O. W. McCaskill.[v] These advocates argued a cause of action was the intersection of a single legal right in plaintiff with a single legal duty in defendant. For example, when plaintiff and defendant had an auto accident, defendant rushed to plaintiff’s car to punch him in the face, and seized plaintiff’s wallet as preliminary compensation, plaintiff had three separate and distinct legal theories of recovery: negligence, battery, and conversion. This meant plaintiff had three causes of action, Pomeroy and McCaskill asserted. Essentially, a cause of action was a single legal theory of recovery, and thus was essentially the same as the common law “right of action.” Plaintiff’s inchoate three rights of action would become embodied in three causes of action when pleaded in the complaint.

The other position was the “transactional” theory, as advocated by Professor Charles A. Clark.[vi] Clark argued a cause of action was a single set of facts without regard to possible legal theories embedded within that set of facts: “The essential thing is that there be chosen a factual unit, whose limits are determined by the time and sequence and unity of the happenings, rather than by some vague guess or prophecy of potential judicial action.”[vii] Clark’s cause of action was determined from a lay perspective on what facts would constitute a single transaction without regard to any legal theories a lawyer or judge might later apply to those facts. Accordingly, in the hypothetical in the paragraph above, Clark would answer plaintiff had one cause of action arising from a single set of facts, not three causes of action. As can be seen, Clark’s cause of action was much broader than Pomeroy’s and McCaskill’s cause of action. This difference would be manifest in the facts necessary to plead a cause of action and also in unpleaded portions of a cause of action that might be barred by res judicata.

C. Pleading under the Federal Rules of Civil Procedure

1. Development of the Federal Rules

Because of these and other problems with the codes, an impetus developed in the early twentieth century for another round of sweeping reform in civil procedure. Congress passed the Rules Enabling Act in 1934 (28 U.S.C. § 2072), which allowed the Supreme Court to appoint an advisory committee to draft rules of civil procedure for the federal courts. The advisory committee, under the leadership of reporter Charles E. Clark, recommended a set of civil procedure rules to the Court, and the Court promulgated the Federal Rules of Civil Procedure in 1938.

The Federal Rules have been hugely successful. They govern procedure in the federal courts to this day. As were the codes, the federal rules in their turn have been popular in the states. A majority of American states today are rules states with rules patterned after the Federal Rules–yet because several states with large populations retained their codes, the majority of Americans today live in code states.

2. Pleading a Claim under the Federal Rules

The Federal Rules continue the great reforms of the codes: abolishing the common law writs in favor of a “civil action,” merging law and equity, allowing broad joinder of claims and parties, and simplifying pleading and procedure. As to the latter, the rules simplify pleading by removing some of its duties. No longer is pleading required to reveal the facts, narrow the issues, or weed out groundless claims. Instead, the function of pleading under the rules is to give notice to the opposing party and the court of the nature of the claim (or defense). The Federal Rules are often called a notice pleading system.

The Federal Rules accomplish the feat of this simple, notice pleading system primarily by requiring plaintiff to plead only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The intended simplicity of pleading a claim is reinforced by other rules.[viii] The other functions of preparing a case for trial are delegated to other portions of the rules, primarily the discovery rules.

By requiring only a short and plain statement of a claim, the rules eliminate the two major sources of pleading litigation the codes generated. The codes required pleading of “facts.” That requirement does not appear in Federal Rule 8. The codes required pleading of a “cause of action.” That phrase does not appear in Federal Rule 8–or anywhere in the Federal Rules. It has been abolished in the federal courts and rules states. Use of the newly-coined term “claim for relief” in preference to “cause of action” was quite intentional on the part of reporter Clark and the committee–and therefore the Supreme Court–to eliminate these two pleading problems. Two corollaries follow from this choice by the Court: 1) the term cause of action is obsolete and should not be used in federal courts and rules states, and 2) the term claim embodies Clark’s view that the proper litigation unit is an operative set of facts instead of a single legal theory.

The transition from cause of action to claim did not–and even today sometimes does not–come easily. Repeated attempts to re-institute fact pleading and the cause of action have been made, and beaten back, in the federal courts. The most famous early case standing for the proposition that Federal Rule 8(a)(2) means what it says is Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944). The district court dismissed plaintiff’s hand-drawn, nearly unintelligible complaint for failure “to state facts sufficient to constitute a cause of action.” The opinion reversing the dismissal was written by the same man who earlier had drafted the Federal Rules: Judge Charles E. Clark of the Second Circuit. The court decided the complaint stated a claim because it gave basic notice to defendant of the nature of plaintiff’s claim. Not long after Dioguardi, the Supreme Court stated “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 grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L.Ed.2d 80, 85 (1957). Recent cases confirming the notice pleading approach include Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L.Ed.2d 517 (1993) rejecting heightened pleading requirements for certain civil rights actions) and Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 167 L.Ed.2d 1081 (2007) (rejecting heightened pleading requirements in § 1983 cases).

The notice pleading approach that underlies the entire federal rules system has been cast into some doubt by two recent Supreme Court decisions. The opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007), requires a plaintiff in an antitrust action under the Sherman Act to plead more factual matter than mere notice would require; even more importantly, the opinion disapproves the broad statement of notice pleading in Conley. Two years later, the opinion in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009), requires that a claim be “plausible” in order to survive a motion to dismiss for failure to state a claim.

The impact of these two decisions is not yet clear. One view is that the opinions are aberrations in the history of federal rules notice pleading, one limited to complicated antitrust cases and the other explained by an unwillingness to allow a plaintiff incarcerated as a terrorist to succeed in a challenge to his confinement conditions. The other view is that the two cases signal a major change in the approach to pleading being wrought by the Supreme Court through case decisions instead of amendment to the federal rules. Which of these views prevails awaits additional decisions.

In sum, the role of pleading under the Federal Rules is much less than it was under the common law or the codes. Pleading is no longer a fine art. A court construing a challenged complaint will not look to see if every jot and tittle is in place, but will ask whether the complaint gives fair notice of the claim.

II. DRAFTING A COMPLAINT UNDER THE FEDERAL RULES

A. Form of the Complaint

The complaint is composed of four major sections: the caption, the body, the demand for relief, and the signature.

The caption. Each complaint must have at the top of the first page an appropriate caption, which is a standardized heading including the name of the court, the names of the parties, the file number, and the designation of the pleading [here, the complaint]. “Every pleading must have a caption with the court’s name, a title, a file number, and a Rule 7(a) designation.” Fed. R. Civ. P. 10(a). A standard caption would be as follows:

UNITED STATES DISTRICT COURT

DISTRICT OF DAKOTA

___________________________________

PETER SCHULER,

COMPLAINT

v.

File Number___________

DAVID DOUR,

___________________________________

__________

The body. The body must first state “a short and plain statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). See II.B.1, infra. Second, the body must contain separate, numbered paragraphs, Fed. R. Civ. P. 10(b), which state “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). See II.B.2, infra. The “complaints” at the end of this exercise are examples of the body section of the complaint. An introductory phrase to the body of the complaint, such as “For her complaint against defendant, plaintiff alleges as follows” is commonly used, but is not necessary.

Demand for relief. The complaint must include “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(3). This demand is also called the ad damnum clause, or the wherefore clause. The following example is a common form:

WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $100,000, plus interest and costs.

Many attorneys add a phrase such as “and for other relief as the court may deem the plaintiff to be entitled,” but Fed. R. Civ. P. 54(c), which provides a judgment “should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings” renders such a phrase superfluous.

Signature. Fed. R. Civ. P. 11(a) requires a manual signature on the copy of the pleading filed with the court, plus information as to the address and telephone number of the attorney. See Fed. R. Civ. P., Form 2. A common signature form is as follows:

Lawyer, Argue & Case

by /s/ C.C. Case

Attorneys for Plaintiff

111 Main Street

Capital City, Dakota 11111

(111)111–1111

B. Content of the Complaint

1. Jurisdictional allegations

The first requirement for a complaint in a federal court is that it include “a short and plain statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). This statement is required because the federal courts are courts of limited subject matter jurisdiction [see Exercise Two, part I.A]. Subject matter jurisdiction of the federal courts is never assumed, as it is in state courts of general subject matter jurisdiction (so a state rules system patterned on the federal rules will likely omit this requirement). An allegation of federal question jurisdiction will cite the federal law provision under which the claim is alleged to arise. An allegation of diversity jurisdiction will allege the citizenship of each of the parties and the amount in controversy. For examples of sufficient jurisdictional allegations, see Fed. R. Civ. P., Form 7.

Later in this exercise, section III.D.1 contains several varying allegations of diversity jurisdiction. You will be asked to evaluate each for sufficiency.

2. The claim

The next requirement for a complaint in a federal court is that it include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While this sparse requirement, especially as reinforced by decisions of the Supreme Court, allows plaintiff to plead the facts of the case with generality (see I.C.2, supra), it should not be taken as license to authorize sloppy pleading practices. An attorney who attempts to draft a complaint without having first thought through the elements of the claim and the facts necessary to establish those elements will draft a poor complaint. Even should the complaint survive a challenge to its sufficiency, damage will result in unnecessary time and effort defending that challenge, possible later complications in the litigation, and impairment of the attorney’s reputation.

In order to draft a good complaint, plaintiff’s attorney still must investigate the case, research the law, and then plead the facts necessary to place plaintiff’s claim under that law. “The Rules didn’t abolish the necessity for clear thinking.” Plastino v. Mills, 236 F.2d 32, 34 (9^th Cir. 1956). In the absence of thinking through the legal nature of the claim to be pleaded, the plaintiff’s attorney may well omit important facts, include irrelevant allegations, or even plead a defense to the claim. One treatise suggests pleaders under the Federal Rules should still continue to “make statements of claim that provide the opposing party and the court with a fairly definite picture of the transaction sued on and the legal theories implicitly used. This is the most that can be expected of pleadings.” Fleming James, Jr., Geoffrey C. Hazard, Jr. & John Leubsdorf, Civil Procedure § 3.6, at 191 (5^th ed. 2001).

Pleading can be thought of as a syllogism. The form of a classic syllogism is this.

The applicable substantive law is the major premise. The facts of the case that fit the law are the minor premise. The conclusion follows that plaintiff wins. Traditionally, plaintiff need not plead the major premise since the court is presumed to know the law. Plaintiff need plead only the minor premise. Even so, a careful pleader will not leave the court to guesswork. For example, Fed. R. Civ. P. Form 11 identifies the nature of plaintiff’s claim as “defendant negligently drove.” The allegations of the official form do not recite the elements of the law of negligence, but they do notify the opposing party and the court that the claim is for negligence.

Later in this exercise, section III.D.2 contains several alternatives for allegations of the body of a complaint for defamation. You will be asked to evaluate each for sufficiency.

3. Federal Rule 11 and ethical considerations in good faith pleading

Prior to 1983, Fed. R. Civ. P. 11 required only a good faith certification that the attorney had “read the pleading,” that it was on “good ground,” and that it was “not interposed for delay.” While this imposed an ethical requirement on the attorney filing a pleading, the rule provided no real means of enforcement. From the adoption of the Federal Rules in 1938 until 1983, few Rule 11 sanctions were sought, and fewer were granted.

This situation changed dramatically with amendment of Rule 11 in 1983. Responding to a burgeoning federal caseload and claims of abusive litigation practices, the Supreme Court rewrote Rule 11 in several ways. First, application of the rule was expanded beyond pleadings to include also motions and other papers. Second, any pleading, motion, or other paper not signed was to be stricken. Third, the rule expanded improper purposes of pleading from delay alone to include harassment or needless expense. Fourth, violation of the rule would result in a mandatory sanction (“shall impose”). Finally, and most importantly, the rule required that the paper be signed only “after reasonable inquiry.” That meant an attorney could no longer accept a client’s story at face value, at least without some minimal level of additional investigation, as a basis for pleading. The Court summarized the obligations of Rule 11 in this fashion: “A signature certifies to the court that the signer has read the document, has conducted a reasonable inquiry into the facts and the law and is satisfied that the document is well‑grounded in both, and is acting without any improper motive.” Business Guides, Inc. v. Chromatic Comm’ns Enter., Inc., 498 U.S. 533, 542, 111 S. Ct. 922, 929, 112 L.Ed.2d 1140, 1153 (1991).

Some litigants and attorneys sought to avoid sanctions by claiming good faith, but the good faith defense was rejected. Rule 11 applied an objective, not a subjective, standard. Business Guides, 498 U.S. at 542, 111 S. Ct. at 922, 112 L.Ed.2d at 1140. An attorney was required to meet the standard of a reasonable attorney. Failure to meet that standard resulted in a variety of sanctions, which commonly included reimbursement of attorney’s fees to the opposing party who had been required to defend the objectively unreasonable pleading or other paper.

Ten years of controversy followed. Many thought Rule 11 had swung from the extreme of toothlessness to the extreme of excessively sharp fangs. This controversy induced the Supreme Court to revisit Rule 11 in 1993. The rule was both contracted and expanded.

On the contraction side, the new rule provides procedures for Rule 11 sanctions motions. First, a party seeking a Rule 11 sanction must make the request in a separate motion. Fed. R. Civ. P. 11(c)(2). Second, the party seeking a sanction must serve the motion on the offending party and then allow 21 days for withdrawal or correction of the offending material before filing the motion for sanctions with the court. Fed. R. Civ. P. 11(c)(2). Third, the rule makes clear that the purpose of a sanction is deterrence, not compensation: “A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4). The sanction may be in the form of “nonmonetary directives,” or if monetary, the sanction will ordinarily be paid into court, not to the moving party. Fed. R. Civ. P. 11(c)(4). This major change from the 1983 version of the rule certainly eliminates much of the incentive for seeking a sanction.

On the expansion side, the new rule places a continuing obligation on a pleader in later stages of the case: “[b]y presenting to the court a pleading, written motion, or other paper– whether by signing, filing, submitting, or later advocating it.” Fed. R. Civ. P. 11(b). In other words, a Rule 11 violation occurs when an attorney advocates a position in violation of the rule even though the position had been justified by the law and facts at the time it was first asserted. For example, an allegation in a complaint might be proved untenable by later discovery, so it cannot be relied on in a motion for summary judgment. A second expansion is to fix liability on law firms for the violations of their attorneys. Finally, the representations made are expanded:

Representations to the Court.

Fed. R. Civ. P. 11(b).

The objective standard for evaluation remains.[ix] An attorney’s subjective good faith belief is not a defense against sanctions when an objective, reasonable attorney would not have held such a belief or would have undertaken a more thorough investigation.[x]

Similar concerns underlie Rule 3.1 of the Model Rules of Professional Conduct:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law * * *.

As with Fed. R. Civ. P. 11, the test of the Model Rule is objective. Consequently, a subjective, good faith belief in the truth of a pleading will not save the attorney who files an objectively false or frivolous pleading from professional discipline.

III. AN EXERCISE IN DRAFTING A COMPLAINT FOR DEFAMATION UNDER THE FEDERAL RULES: CALI CIV 01

This exercise includes the facts of a hypothetical case of defamation, discussion of the substantive law of the tort of defamation, and discussion of the procedural law of pleading a defamation complaint. Please read these materials carefully and answer the preliminary questions asked in section III.D. You will then be ready to go to the computer terminal to work through CALI CIV 01: Drafting a Complaint. Take the facts of the case and a copy of the Federal Rules of Civil Procedure with you.

A. Facts of the Case

You are an attorney practicing with a law firm in Capital City, Dakota. One of the partners in your firm has just received a statement from a client, Peter Schuler. The partner hands you the statement, in which Schuler gives the following account:

“Until this past May, I was a student at Dakota College in College Town, Dakota. On April 30, one of the proctors caught me watching television in the dorm with my girlfriend. The college is strict and old-fashioned. Women aren’t allowed in the mens’ dorms after 8 p.m.

“The proctor turned me in. They scheduled a hearing before the Dakota College Disciplinary Board, which has the job of punishing student misbehavior. All of its members are faculty members. Dean William Roberts is always on the Board. The other professors take turns, two at a time. This time the other members were Professor Mary Trueblood and Professor David Dour.

“Professor Trueblood is a nice person. But having Professor Dour on the Board was a stroke of bad luck for me. He’s always hated me.

“I went before the Board in Room 215 of Old Main on May 10 and apologized. They said that they would let me know what their decision was the next morning.

“The next morning Dean Roberts told me that the board had voted to suspend me from school for a year because I had violated the visiting hours rules. I have never heard of anyone else getting such heavy treatment. Even Dean Roberts admitted it was heavy.

“So I looked at the records that the student council keeps of all disciplinary hearings. Out of 50 cases in the last ten years, only three students have been suspended. The others have all received social probation or something less. The council records don’t show the reasons for the suspensions, but I talked to five alumni who went to the hearings on those three suspensions when they were students. All three suspensions were given after the same hearing seven years ago. Four out of the five alumni told me definitely that the students were suspended for cheating on an exam.

“I couldn’t figure out why I got that treatment. I went in to see Professor Trueblood. I knew her from field trips in geology and always thought she was O.K. She didn’t want to talk to me at first, but after beating around the bush for a while she finally told me confidentially that the Dean had been very much influenced by what Professor Dour said after I left. According to Trueblood, Professor Dour said, ‘Peter is a heavy user of crack cocaine.’ Trueblood said that those were Dour’s exact words. I don’t know where Dour got the idea that I am a drug user. It’s absolutely untrue and I can’t think of anyone who would say that about me. Maybe he made it up. He must have known that Dean Roberts is paranoid about drugs. Anyway, Trueblood said that they suspended me because they thought I was a drug user.

“I had this great part-time job in a bank in College Town and I was planning on going into its management training program after I graduated. When I went in to work the week after the Disciplinary Board meeting, my boss, John Thompson, told me I was fired. At first he wouldn’t say why, but eventually he admitted that he had heard I had a ‘personal reputation incompatible with the banking industry.’ I asked him if he was talking about gossip that I had been using drugs and he said ‘All I can say to that is if such were the case, that would be incompatible with the best interests of banking.’

“I asked him if he knew Professor Dour and he said ‘Yes, but he has nothing to do with this. He didn’t tell me anything.’ I think Thompson was lying and that either Dour told him the phony story about crack, or that somehow he heard about what was said at the disciplinary hearing.

“I don’t want to go back to Dakota College—ever! I’m disgusted with the place. Anyway, everyone there thinks I’m weird. I’m now back home, where my dad is letting me work in his furniture store.”

Your partner asks you to draft a complaint for Peter Schuler against David Dour. The case will be filed in federal district court in Dakota, since the backlog there is considerably shorter than in state court. One drawback to Dakota federal court is that the judge is quite punctilious about pleading, having been trained many years ago in a code pleading state. Accordingly, you should compose a complaint to survive close scrutiny, and it should be able to survive probable defense motions to require a more definite statement under Fed. R. Civ. P. 12(e), or to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

B. Substantive Law of Defamation

1. State Law

The Erie doctrine[xi] requires the federal court in Dakota to follow state law concerning the elements of defamation, except where federal constitutional issues are involved.

Dakota law provides that a defendant who communicates a disparaging, damaging falsehood about plaintiff to a third person is liable in an action for defamation (slander).[xii]

Under the decisional law of the state of Dakota, the elements of slander are as follows:

2. Federal Constitutional Law

Although state law generally governs the elements of slander, federal constitutional doctrine must also be taken into account, and the law in this area is uncertain and changing. A dictum in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974), seems to indicate that the First Amendment prohibits states from imposing liability without fault in defamation cases, i.e., the defendant must have been at least negligent in publication of a false statement. Arguably, the Supreme Court’s decision means that a state cannot constitutionally impose liability for making a false statement when the defendant reasonably believed the statement to be true.

Such a conclusion was unsettled by the decision eleven years later in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L.Ed.2d 593 (1985), which can be read to say that cases involving a plaintiff who is a private figure (not a public figure) concerning a matter of private concern do not require a showing of defendant’s fault for liability. Gertz involved a private figure in a matter of public concern. No additional guidance has been provided by the Court.

C. Procedural Law: the Burden of Pleading

The court of appeals in your circuit has announced that under its interpretation of the Erie doctrine, Dakota law should be followed on substantive issues in a defamation case, but federal law should be followed on pleading issues, including the allocation of the burden of pleading. A party who has the burden of pleading an issue must raise that issue in the pleadings, or the issue will be resolved against that party.

One question to be answered is who has the burden of pleading privilege: is it an element of the claim that must be pleaded by plaintiff, or is it an affirmative defense that must be pleaded by defendant? While Fed. R. Civ. P. 8(c)(1) does not include privilege in its list of 19 examples of affirmative defenses, the rule provides “any avoidance or affirmative defense.” Your research on federal caselaw on the pleading of slander has led you to conclude that privilege is an affirmative defense.

On the subject of pleading a defamation case in general, you have also found the following passage in a treatise on federal practice:

Although special pleading requirements have not been set out in the federal rules for libel and slander actions, the standard for successfully pleading defamation tends to be more stringent than that applicable to most other substantive claims because of the historically unfavored nature of this type of action, the First Amendment implications of many of these cases, and the desire to discourage what some believe to be all too frequently vexatious litigation. Thus, many of the somewhat inhibiting traditional attitudes toward pleading in the context of defamation have survived the adoption of the federal rules.

Of course, all the plaintiff technically is required to do is state a claim for which relief may be granted, and many federal courts have demanded no more than that. This theoretically means providing a short and plain statement indicating that the elements of a libel or slander claim are present. Contrary to the common law and the generally accepted code approach, some courts have held that it is not necessary to include in the complaint the exact statements upon which the action is based, which seems consistent with Rule 8, although some federal courts have held to the contrary and others have indicated that the substance of the actionable words should be pleaded. It also has been held by at least one court that an allegation of falsity is required. A general allegation of publication and the place where the libel circulated will suffice in most instances. However, if the defendant does seek by a motion for a more definite statement under Rule 12(e) to have the plaintiff fix the situs of the alleged tort, the motion may well be granted, although this seems to represent a technically improper use of that motion.

If the defamatory character of the statement rests on extrinsic facts, those facts should be pleaded. And if the libelous character of the statement depends upon an interpretation of the words other than a meaning that usually is given to the statement, the special meaning should be specifically pleaded by way of innuendo, explanation, or colloquium. It also is necessary to allege that the defamation pertained to the plaintiff.

A complaint indicating that the uttered statements are not actionable per se has been held not sufficient to state a claim for relief in the absence of an allegation of special damages, as is discussed under Rule 9(g); conversely, if a writing contains material that is libelous per se, allegations in the complaint of special damages under Rule 9(g) are not necessary.

Although some courts tend to be unwilling to construe the statement of the claim for relief liberally in a libel or slander action and require that all elements of the substantive cause of action be specially pleaded, nothing in Rule 8 imposes a special burden on the pleader in these classes of cases. A number of federal courts have not insisted that each element of the underlying cause be specifically pleaded. In Garcia v. Hilton Hotels International, Inc., for example, the plaintiff failed to allege in so many words that there had been a publication and the defendant challenged the complaint under Rules 12(b)(6), 12(e), and 12(f). Although the court in Garcia inferred the existence of publication and denied the motion to dismiss, as is discussed in another section, it did grant the defendant’s motion for a more definite statement, inter alia, because of the vagueness resulting from the plaintiff’s failure to set out the substance of the utterance alleged to have been made slanderously or the facts relied upon to establish that it had been published to anyone else. Thus, despite the fact that the Garcia case represents a liberal attitude toward the pleading requirements of the federal rules, it also indicates that traces of disfavor for defamation actions still exist. There is little doubt that because of the unfavored status of libel and slander actions, it is advisable for the pleader to set forth the claim for relief as clearly as possible, and that all the elements of the claim at least should be inferable from the allegations in the complaint.

5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1245 (2004).

D. Preliminary Questions

Please answer the following questions before going to the computer to begin CALI CIV 01: Drafting a Complaint. [Note: if you want to omit the section on jurisdictional allegations, skip to section III.D.2, infra, and when you begin the computer exercise, tell the computer to start on Question 3.]

1. Jurisdictional allegations

Since every complaint filed in federal court must allege federal subject matter jurisdiction [Fed. R. Civ. P. 8(a)(1)], we review the relevant part of the diversity statute, and then examine nine possible jurisdictional allegations. The statute reads as follows:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.

28 U.S.C. § 1332(a).

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Which of the following jurisdictional allegations would be deemed completely satisfactory by the most punctilious judge? (The computer will ask you to list all of the completely satisfactory allegations.)

Before proceeding, you may wish to try your hand at drafting a complaint from scratch. You can then compare your draft to the model drafts that follow. [The computer will not ask for your complaint, so if you wish, you may skip to the next paragraph.] Your draft complaint should be in the proper form, including a caption, a body, a demand for relief, and a signature (see II.A, supra). When drafting the body of the complaint, plead all of the necessary elements of defamation (see III.B.1, supra). Keep in mind that defamation (slander) may require the pleading of special damages, and Fed. R. Civ. P. 9(g) requires “If an item of special damage is claimed, it must be specifically stated.”

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For the computer exercise, the caption, the demand for judgment, and the signature sections of the complaint will be omitted. You will be asked to frame the allegations only for the body of the complaint. Please frame the body of your complaint either by (a) choosing one of the six complaints set forth on the following pages or (b) composing a complaint by using paragraph two of one of the complaints and paragraph three of another.

In assessing complaints one through six, you should remember that you do not want a complaint only minimally acceptable under the Federal Rules. You want a complaint that is as nearly perfect as possible, so defendant’s attorney will have no basis for attacking it on pleading grounds. Therefore, you want to compose a complaint that does not even arguably commit any of the following pleading errors:

Error 1: The complaint fails to allege an element of the claim. Example: Plaintiff sues defendant alleging that defendant negligently drove his automobile in such a fashion as to endanger plaintiff. She fails to allege any injuries. Plaintiff has omitted the fourth element of the tort of negligence (duty, breach, causation, damages), and since the burden of pleading on this issue is on plaintiff, this complaint would be subject to attack under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

You need plead only a “short and plain statement of the claim.” Fed. R. Civ. P. 8(a)(2). At the same time, you want to make sure that your complaint alleges facts establishing all of the elements of slander (see III.B., supra). Otherwise, a punctilious judge might dismiss under Fed. R. Civ. P. 12(b)(6).

Error 2: The complaint fails to give the defendant information necessary to frame an answer. Fed. R. Civ. P. 12(e) provides “A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. * * *” You should avoid a complaint that—though it technically states a claim—omits facts the other party needs to know in order to determine what defenses to raise in the answer. Because a motion for more definite statement is proper only when defendant cannot reasonably respond and is not to be used to force discovery out of plaintiff, the motion is rarely made and rarely granted. Even so, you should not give the defendant’s attorney cause, or even an opening, to make the motion.

Error 3: The complaint raises an affirmative defense and fails to avoid it. A plaintiff need not anticipate affirmative defenses in the complaint, but should the plaintiff allege facts establishing an affirmative defense, she must go further and allege other facts that avoid the defense. Example: Suppose that the statute of limitations for slander is three years, but the statute is tolled when the plaintiff is mentally incompetent. Under Fed. R. Civ. P. 8(c)(1), the statute of limitations is an affirmative defense. Plaintiff alleges in the complaint a slander by defendant four years previously, but fails to allege she was mentally incompetent for two of the four intervening years. Plaintiff has raised an affirmative defense in the complaint without avoiding it, and her complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6).

Normally, of course, a district judge will allow plaintiff to amend the complaint, but the 12(b)(6) motion might cause unwelcome delay. Filing and decision on the motion postpones the date upon which defendant must file the answer [see Fed. R. Civ. P. 12(a)(4)].

Error 4: The complaint contains superfluous matter. A small amount of superfluity is usually nothing to worry about. Under Fed. R. Civ. P. 12(f), courts may order stricken from a pleading any “redundant, immaterial, impertinent, or scandalous matter,” but a motion to strike is not favored and would certainly not be granted against a complaint as short as the ones set forth in this exercise. Even so, a careful pleader will not frame a complaint containing superfluous matter. The inclusion of unnecessary matter will seem amateurish, and may impair the pleader’s effectiveness in persuading the court about other matters. Furthermore, the superfluous language may provide information to the opposing party that will help in preparation of the case.

Error 5: The complaint violates standards of professional responsibility. As discussed in section II.B.3, supra, Fed. R. Civ. P. 11 requires an attorney to sign the complaint and provides that the signature certifies several matters, including that the claim is warranted by both law and fact. Violation of the rule can subject both the lawyer and the client to sanctions.

Rule 3.1 of the Model Rules of Professional Responsibility [see II.B.3, supra] imposes a similar requirement of objective good faith on the attorney signing a pleading. Violation of Model Rule 3.1 could subject the lawyer to professional discipline.

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Each of the six “complaints” below contains three paragraphs for the body of the complaint. Assume that the date left blank is the most recent year. Before going to the computer to work through CALI CIV 01, please read the complaints and answer the questions that follow them.

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COMPLAINT ONE

COMPLAINT TWO

COMPLAINT THREE

COMPLAINT FOUR

COMPLAINT FIVE

COMPLAINT SIX

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In preparing for the computer exercise, answer these questions by referring to the Pleading Defects Display at the end of the questions.

PLEADING DEFECTS DISPLAY

(The computer will ask you to use this multiple choice display to identify defects in the allegations of the above six complaints.)