The plaintiff initially decides the forum of the lawsuit by filing the complaint with the clerk of the court in which the plaintiff wishes to litigate. The rules regarding the content of the complaint and the specificity of the claims in the complaint are generous. The complaint needs only to contain a statement of the grounds upon which the subject matter jurisdiction of the court is based, a short and plain statement of the claim(s) upon which the plaintiff is seeking relief, and a request for the relief sought. The entire basis of the claim need not be presented. Instead, a standard of notice pleading is applied in the federal and most state courts, requiring only enough facts to give the defendant fair notice of the plaintiff’s claim and the grounds upon which it rests.
After filing the complaint with the clerk of court, the clerk issues a summons, an order directing the defendant to respond to the complaint or receive a default judgment. The plaintiff then serves the defendant with the summons and a copy of the complaint. Service is necessary to establish the court’s territorial jurisdiction over the defendant.
The defendant can file an Answer or instead a motion to dismiss based on one of several grounds: lack of subject matter jurisdiction, lack of territorial jurisdiction or venue, improper service, or failure to state a claim upon which relief can be granted. If the defendant contests territorial jurisdiction, an appearance before the court to argue the court’s lack of territorial jurisdiction is not viewed as consent to the court’s jurisdiction.
The Answer only needs to contain a short, plain statement of the party’s defenses to each claim asserted. This can be in the form of an admission, a denial or a lack of knowledge with respect to the facts. Affirmative defenses can also be raised. Certain counterclaims must be included in the Defendant’s Answer, to which the plaintiff must file an Answer. If the defendant fails to raise certain compulsory counterclaims, she can be barred from doing so later in a different lawsuit under the doctrine of res judicata. Third party claims may also be brought by the defendant requesting the joinder of a third party to the lawsuit. In a personal injury lawsuit against a car dealer, for example, the car dealer can assert a third party claim against a tire manufacturer for defective tires. As a rule, the parties are allowed to amend their pleadings once without the court’s permission, and have unlimited opportunities to request further amendments with the court’s permission, even up to the trial.
The legal counsel and parties filing the pleadings, motions, or other submissions to the court, must certify in accordance to Fed.R.Civ.P. 11 [Federal Rules of Civil Procedure, Rule 11] that they have investigated the grounds for the relief requested or assertions made and that they are well-grounded in law and not frivolous. A party or lawyer found in violation of this rule can be sanctioned by the court, for example, ordered to pay the opposing party’s legal costs and fees incurred in defending the motion or the lawsuit. Issues as to the jurisdiction of the court are resolved at this stage.
, Laura Carlson, J.D.(USA), LL.M.(Sweden)
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