- Be able to explain the preliminary questions you need to answer before you draft a complaint or answer.
- Be able to explain where to find the answers to those questions in both state and federal court.
- Be able to write complaints and answers for federal actions.
Complaints and answers get a lawsuit started.
Complaints stop the running of the statute of limitations, initiate the litigation, provide notice of disputed facts and issues, provide notice of the relief sought, and define the scope of discovery. Answers join the issue, prevent default, and provide notice of affirmative defenses.
Good drafting is essential; if technically precise, it will avoid attacks by motion, which, if lost, require you to file amended pleadings to cure defects. You will find federal pleading rules in the Federal Rules of Civil Procedure. State pleading rules differ from state to state, so if you plan to file a lawsuit in state court or answer a complaint filed in state court, you must consult your state’s pleading rules.
Before you begin drafting a complaint, you need to answer three preliminary questions. They are:
1. Whom do you plan to sue?
The answer is relevant to both personal jurisdiction and venue. Jurisdiction establishes whether a court, for example, federal court, has the power to make a decision affecting the party sued. And the answer is relevant to venue, which establishes whether a court in a particular location is the proper place to file suit. Consult the Federal Rules of Civil Procedure for rules governing venue in claims filed in federal court. If you plan to file in state court, consult the statute or rules that govern venue in that state.
A court can have jurisdiction over a defendant but be improper venue. For example, you could determine that the Western District of New York has jurisdiction over a party. Still the district courts within the Western District are located in five separate geographic locations. So, while any of the five courts within the district would have jurisdiction over a party, it may be that only one is proper venue.
A detailed discussion of jurisdiction and venue is beyond this handbook’s scope. But relevant factors include where the occurrences underlying an action occurred and where potential defendants reside.
2. Where do you plan to sue?
Once you decide, consult either the Federal Rules of Civil Procedure or the rules that govern the state where you intend to file.
3. What are the elements of your cause(s) of action?
Remember that in federal court, the standard is fact pleading, which requires you to allege specific facts that establish each element of each claim. For example:
For a first cause of action (negligence)
- On March 11, 2020, at approximately 1:00 p.m., plaintiff Chaplin was ascending the exterior stairs to 99 Chateau Terrace in Amherst, New York.
- When Chaplin reached the fourth stair, she fell when it broke under her.
- Defendant Walters should have known the stair was unsafe because the Town has issued him a summons citing the deteriorating condition of the stair but took no action to repair it.
- As a result of her fall, Chaplin suffered a comminuted fracture of her left leg.
In contrast to factual pleading is notice pleading, which permits plaintiffs to state a claim generally, without requiring detailed facts to support each element of each claim. If you plan to sue in state court, read the rules to determine whether the state allows for notice pleading. For example:
For a first cause of action (negligence)
- As the owner of 99 Chateau Terrace in Amherst, New York, the defendant owed the plaintiff a duty to keep the property in a safe condition.
- The defendant breached his duty.
- As a result of the defendant’s breach, the plaintiff suffered an injury.
The form and content of complaints filed in federal court are governed by the Federal Rules of Civil Procedure, which you must check before drafting a complaint. If you plan to file in state court, you must consult the relevant state court statutes or rules. The state requirements are outside the scope of this book, and only federal requirements are addressed.
Even if you think your state permits notice pleading, I suggest you plead facts to be on the safe side. You have nothing to lose and will be required to disclose the facts in discovery.
While researching, you will find forms that you can follow. You may be given a form to file by a supervising attorney. While forms can help you draft a complaint, I discourage blindly following them because while it may result in an acceptable product, you will not have learned how to draft a complaint. Rather, you will have learned only how to fill in a form.
Generally, the content of a complaint in federal court consists of:
1. The caption – A caption appears at the top of legal pleadings. It lists the plaintiff’s name, the defendant’s name, the document’s name, the court where the matter was filed, and the docket number.
2. Introductory sentences – give your reader a sense of what the lawsuit is about. Just a few sentences will suffice. They will put the complaint in context, which makes it easier for the reader to understand the pleading as they read it.
3. The Body of the complaint, which includes:
a. Jurisdiction and venue – A statement stating the basis for both jurisdiction and venue is only required in federal court pleadings.
b. Parties – name all parties.
c. Demand or conditions precedent satisfied if required (for example, that administrative remedies are exhausted). Attach relevant documents as exhibits.
d. Factual allegations – Allege facts to support each element of the claim.
e. Legal allegations – Allege the elements of each claim separately.
4. Request for Relief – list the remedies sought.
5. Jury demand – to preserve your right to a trial by jury in federal court, include a demand for a trial by jury in your complaint.
6. Date, Attorney Signature – Attorney signature is required in federal court.
7. Plaintiff verification, if required.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SERGEANT JOHN DOE,
COMPLAINT AND JURY TRIAL
DEMAND Civil Action
1. This claim is for damages pursuant to 42 U.S.C. § 1983, and is based on a beating inflicted on the Plaintiff by the Defendant Erie County Deputy Sergeant when Plaintiff was a pre-trial detainee in the custody of the Sheriff of Erie County on or about May 14, 2021.
2. The Plaintiff claims that MAY 14, 2021, SERGEANT JOHN DOE violated his rights under the United States Constitution to be free from the excessive use of force.
3. This Court has subject matter jurisdiction over the Plaintiff’s civil rights claims, pursuant to 28 U.S.C. §§ 1331, 1341(a)(3) (4).
4. All alleged acts occurred in the County of Erie. Therefore, venue is proper in the Western District of New York under 28 U.S.C. § 1391(b).
5. At all times relevant to this action, the Plaintiff was incarcerated and awaiting trial in the custody of the Office of the Sheriff of Erie County.
6. At all times relevant to this action, Defendant JOHN DOE (“DOE”) was a deputy sheriff who assaulted the Plaintiff and was acting under color of state law. DOE is sued in his individual capacity.
V. CONDITIONS PRECEDENT
7. Within the intent of the Prison Litigation Reform Act, the Plaintiff pursued all administrative procedures available to him at the Erie County Holding Center. A copy of his grievance based on the beating inflicted on the Plaintiff on or about January 29, 1010, and the County’s response are attached to this Complaint as Exhibit A.
8. The Plaintiff also filed a grievance based on the beating inflicted on him on or about April 28, 2010. A copy of this grievance is attached to this Complaint as Exhibit B.
VI. STATEMENT OF FACTS
9. That on or about May 14, 2021, the Plaintiff was in the physical custody of the Erie County Sheriff.
10. That on or about May 14, 2021, the Plaintiff was a detainee in the Erie County Holding Center.
11. That on or about the afternoon of May 14, 2021, the Plaintiff was being escorted back to the Erie County Holding Center from a court hold area in County Court, when DOE pushed him and shoved him into a court hold cell.
12. That the Plaintiff’s hands were cuffed.
13. That while the Plaintiff was in the court hold cell with his hands cuffed, DOE, seriously and violently assaulted him.
14. That the beating inflicted on the Plaintiff included kicking, punching, slamming his head into a wall, and spitting on him.
15. That as a result of the beating, the Plaintiff suffered multiple injuries to his head, ears, and body.
16. That as a result of his injuries, the Plaintiff sustained severe pain and discomfort in his head, ears, and body. He also suffered serious psychological trauma, leaving him anxious, depressed, and fearful.
VII. PLAINTIFF’S CAUSE OF ACTION UNDER 42 U.S.C. SEC. 1983 AGAINST DOE
17. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs “1” through “16” of the Complaint herein with the same force and effect as if fully set forth herein.
18. That the Plaintiff had an absolute and constitutional right to be free from the unreasonable and excessive use of force, assault, and battery on his person, even during a period of lawful detention and even if in the custody of Sheriff of the County of Erie.
19. That the severe beating and assault upon a passive and non-confrontational person is totally without legal justification and, upon information and belief, is contrary to the rules and procedures of the Sheriff of the County of Erie.
20. That the laws of New York against assault, menacing and reckless endangerment prohibit actions such as those undertaken by JOHN DOE
21. That the punching, kicking, and injuring of the Plaintiff by DOE, on May 14, 2021, was excessive, unreasonable, and unjustifiable under the circumstances and subjected the Plaintiff to a deprivation of rights and privileges secured to him by the Constitution and laws of the United States, including the Fourteenth Amendment of the United States Constitution, within the meaning of 42 U.S.C. § 1983.
22. That as a direct and proximate result of the unconstitutional acts of DOE the Plaintiff suffered extreme emotional distress, physical injury, psychological distress, and humiliation.
VIII. REQUEST FOR RELIEF
The Plaintiff requests that the Court grant the following relief:
a. judgment against the defendant for compensatory and special damages in a sum in excess of two hundred fifty thousand dollars ($250,000.00).
b. punitive damages against the defendant.
c. attorneys’ fees, for his costs expended herein, for interest, and
d. for such other and further relief both at law and in equity, to which the Plaintiff may show himself to be justly entitled.
IX. JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the Plaintiff demands that all issues of fact in this cause be tried to a properly impaneled jury.
Dated: August 31, 2022
Buffalo, New York
17 Chathlin BLVD.
Basset City, NY
When you finish drafting a complaint, the next step in commencing an action is to file it. Filing commences the action and thus stops the statute of limitations, but the complaint must be served within a certain number of days. Check your local rules for filing.
Form and content of answer
The form and content of answers filed in federal court are governed by the Federal Rules of Civil Procedure, which you must check before drafting an answer. If you answer a complaint in state court, you must consult the relevant state court statutes or rules. However, the state requirements are outside the scope of this book, and only federal requirements are addressed.
While researching, you will find forms that you can follow. You may be given a form to file by a supervising attorney. While forms can help you draft answers, as with complaint forms, I discourage blindly following them.
Generally, the content of an answer in federal court consists of:
Caption – identical to complaint
Introductory Sentence – for example, “The defendant through his or her attorney states as follows.”
Body – admit or deny each allegation in the complaint. Alternatively, if the defendant lacks knowledge sufficient to form a belief about the truth of an allegation, they can plead LKI, which stands for lack knowledge and information.
Affirmative Defenses – allege potential defenses
Counterclaims – state as a counterclaim any claim the answering party has against an opposing party.
No Demand for Relief (unless asserting counterclaims)
Wherefore Clause – a summary of the defendant’s demands
Date, Attorney name, Signature if federal court
Sample Answer to Annotated Complaint
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SERGEANT JOHN DOE
The Defendant JOHN DOE for his answer and through his attorneys, states:
1. Denies the allegations in paragraphs 6, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22.
2. Lacks information and knowledge sufficient to form a belief about the truth of the allegations in paragraphs 1, 2, 3, 4, 5, 8, 9, 10, 23, 24.
3. Admits the allegations in paragraphs 7 and 12.
First Affirmative Defense
4. Plaintiff’s complaint fails to state a claim against defendant on which relief can be granted.
Second Affirmative Defense
5. Defendant further pleads the application of the defense of absolute and/or qualified immunity; defendant asserts that he is entitled to absolute and/or qualified immunity for acts done or actions taken by him, since all acts done or taken by defendant were done or taken in good faith, and that the acts done or taken were not in violation of any clearly established statutory or constitutional rights of which defendant knew or should have known.
WHEREFORE, defendant respectfully requests that the Court:
A. Enter judgment in defendant’s favor.
B. Award defendant its reasonable costs and fees[, including attorneys’ fees].
C. Grant defendant such other and further relief as the Court deems just and proper.
44 Marpina Ave.
Basset City, NY
Now that you finished this chapter, you should be able to write simple federal court complaints and answers and know how to find the rules to write simple state court complaints and answers.
- The two primary sources of the subject-matter jurisdiction of the federal courts are federal questions and diversity. ↵
- Venue is generally determined based on either where the defendant resides or where a substantial part of the events giving rise to the action occurred, or where a substantial part of the property that is the subject of the action is located. ↵
- Here the parties are identified based on their relevancy to the claim. ↵
- This complaint includes pleading conditions precedent because they are required when a prisoner sues over conditions of their confinement. ↵
- Example of fact pleading. Alleges facts sufficient to establish each element of the claim. ↵
- These are the legal elements of the claim. ↵