3.2 Pleadings

Pleadings are the formal documents that frame the lawsuit. Under the Federal Rules of Civil Procedure (FRCP) the main pleadings are the complaint, the answer, an answer to a counterclaim or crossclaim, a third-party complaint and answer, and — if the court orders one — a reply to an answer (Rule 7(a)). Notice the word 'motion' is absent: motions are requests for court orders, not pleadings.

The Complaint — Rule 8(a)

A civil action begins when the complaint is filed (Rule 3) — not when it is served. Rule 8(a) requires only three things:

1. A short and plain statement of the grounds for the court's jurisdiction;
2. A short and plain statement of the claim showing the pleader is entitled to relief; and
3. A demand for the relief sought (the prayer for relief), which may include alternative forms of relief.

The Supreme Court's Twombly and Iqbal decisions require the complaint to state a claim that is plausible on its face — more than labels, conclusions, or a formulaic recitation of the elements. Fraud and mistake are the exception: Rule 9(b) requires them to be pleaded with particularity (the who, what, when, where, and how).

Summons and Service of Process — Rule 4

The summons is the court-issued document, signed by the clerk, that notifies the defendant of the suit and the deadline to respond. Service of the summons together with a copy of the complaint is called service of process, and it is what gives the court personal jurisdiction over the defendant.

Key Rule 4 mechanics:

• Deadline: under Rule 4(m), the defendant must be served within 90 days after the complaint is filed, or the court must dismiss without prejudice or extend time for good cause.
• Who serves: any person who is at least 18 years old and not a party — typically a process server or U.S. Marshal. Proof of service is made by the server's affidavit (Rule 4(l)).
• Individuals (Rule 4(e)): delivery to the individual personally; leaving copies at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; delivery to an authorized agent; or following the law of the state where the court sits or where service is made.
• Corporations (Rule 4(h)): delivery to an officer, a managing or general agent, or an agent authorized to receive service, or as state law permits.
• Waiver of service (Rule 4(d)): the plaintiff may mail the defendant a notice and request to waive formal service. A defendant who waives saves the plaintiff the cost of service and receives 60 days from the date the request was sent (90 days if the defendant is outside the United States) to answer. A defendant within the U.S. who refuses to waive without good cause must pay the costs of personal service.

The Answer — Rules 8(b) and 8(c)

Unless the defendant moves under Rule 12, the answer is due within 21 days after service of the summons and complaint. In the answer the defendant must admit, deny, or state that it lacks knowledge or information sufficient to form a belief (which operates as a denial) as to each allegation.

Affirmative defenses are defenses that raise new matter beyond a simple denial — Rule 8(c) lists examples including accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. The classic exam rule: an affirmative defense not raised in the answer (or an earlier Rule 12 motion) is generally waived.

Counterclaims, Crossclaims, and Third-Party Claims

• Counterclaim (Rule 13) — a claim by the defendant back against the plaintiff. A compulsory counterclaim (Rule 13(a)) arises out of the same transaction or occurrence as the plaintiff's claim and is barred forever if not asserted in the pending action. A permissive counterclaim (Rule 13(b)) does not arise out of the same transaction or occurrence and may be brought later in a separate suit.
• Crossclaim (Rule 13(g)) — a claim by one co-party against another (defendant vs. defendant) arising out of the same transaction or occurrence. Crossclaims are always permissive, never compulsory.
• Third-party claim / impleader (Rule 14) — the defending party brings in a nonparty who is or may be liable to it for all or part of the plaintiff's claim against it, such as an indemnitor. The impleaded party is called the third-party defendant.

Amendments — Rule 15

Rule 15(a) gives a party one amendment as a matter of course: within 21 days after serving the pleading, or, if the pleading is one to which a responsive pleading is required, within 21 days after service of a responsive pleading or a Rule 12 motion — whichever is earlier. After that, amendment requires the opposing party's written consent or leave of court, which the rule says should be 'freely given when justice so requires.' Under Rule 15(c), an amendment relates back to the original filing date when it asserts a claim arising out of the same conduct, transaction, or occurrence — critical when the statute of limitations has run in the meantime.

Default and Default Judgment — Rule 55

When a defendant fails to plead or otherwise defend, the process has two distinct steps. First, the plaintiff asks the clerk to enter the default — a notation on the docket, supported by an affidavit showing non-response. Second, the plaintiff seeks a default judgment. The clerk may enter judgment only if the claim is for a sum certain (or a sum that can be made certain by computation), the defendant was defaulted for not appearing, and the defendant is not a minor or incompetent person. In all other cases, the party must apply to the court, and if the defendant has appeared in the action, it must receive at least 7 days' notice of the hearing. Default judgments are also common against parties who violate discovery orders.

Key Deadlines at a Glance

Paralegal Scenario

A process server completes personal service on the defendant on May 1, and your attorney asks you to calendar the response. The answer is due May 22 (21 days). Two weeks later the defendant's counsel calls: the defendant actually waived service on April 10 after receiving the Rule 4(d) request mailed April 1. You check the docket, realize the answer was really due around May 31 (60 days from the mailing of the waiver request), and correct the calendar before a default motion is filed — exactly the kind of deadline arithmetic the CP exam tests.