Anatomy of a Lawsuit, Part 1: The Summons & Complaint

Every war begins with a first shot.

In the context of litigation, that first shot is the timely filing of a complaint in an appropriate court – i.e., one that has both “subject matter jurisdiction” over the dispute and “personal jurisdiction” over the defendant(s). The one doing the filing is the “plaintiff” (who is comPLAINing of wrongdoing); the lawsuit’s target is the “defendant” (who is DEFENDing against the allegations). A given case can have more than one plaintiff, and more than one defendant. (In New York, the plaintiff may file a “summons with notice” in lieu of filing a complaint.)

Depending on the nature of the case, there may be certain pre-complaint prerequisites, such as timely filing of a “Notice of Claim” (if one is proceeding against a state or municipal defendant), or an administrative complaint (e.g., a “Charge of Discrimination” filed with the U.S. Equal Employment Opportunity Commission, as prescribed by Title VII of the Civil Rights Act of 1964).

The precise details of the content, and procedures for filing, a complaint are spelled out in various procedural rules, namely, the Federal Rules of Civil Procedure (FRCP) and (if in New York State Court) the New York Civil Practice Law and Rules (CPLR) and the Uniform Rules for New York State Trial Courts.

Gone are the days when drafting a complaint was a minefield, where any wrong step, and failure to adhere to arcane and overly technical requirements, would result in dismissal. Rather, modern practice is characterized by “notice” pleading, in which one’s obligation is, in essence, to place the defendant(s) on fair notice of the plaintiff’s allegations.

For example, FRCP 8 provides that “[a] pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction …; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.” New York law provides that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” CPLR 3013. Certain matters may need to be pleaded with “particularity.” FRCP 9; CPLR 3016.

These requirements are often more easily stated than applied, as indicated by the large number of courts frequently called upon to decide whether a complaint in a given case plausibly states claim(s) for relief.

Complaints begin with a caption identifying the parties, and contain numbered paragraphs with the information presented and organized in sections with appropriate headings identifying the parties, jurisdiction/venue, statement of facts, causes of action, and requested relief.

After the appropriate documents have been drafted, they must be filed (together with payment of the applicable filing fee) in the appropriate court. Once the initial filing has been accomplished, the newly-filed lawsuit will be given an “index number” by the court, which will be used to identify the case throughout the lawsuit’s life.

Next: Serving the Defendant(s).

Share This: