15.3 DRAFTING INITIAL PLEADINGS
15.301 In General. All good pleadings begin with research. No matter how familiar the territory, it is a healthy habit to look again at the controlling statutes and the status of case law in the area. The more the key words of a statute and principal case law can be accessed and directly quoted, the more likely it is that the pleading, whether a complaint or a responsive pleading, will survive the challenges raised by the opposition before and during the trial and on appeal. A second look also tends to be the best check against forgetting those small details that can derail or assure the success of a theory of the case.
Allegations not directly relevant to the cause of action or defense require careful scrutiny. While it may be tempting to seek to score points with argumentative allegations in a pleading, parties are largely stuck with what the pleadings allege. Although amendments may be possible, they are not assured, 1 and having to amend is not the best way to impress the court or the opposition. The court will surely read the pleadings, and the unnecessary allegations may or may not make a positive impression. The jury never reads the pleadings, so its members will be completely unaffected by extraneous assertions.
The greater danger of excess is that discovery often reveals new facts, and what appears early in the case to be a reliable fact or theory is proven wrong and thus potentially requires a revision of the theory of recovery and supporting allegations. Simple allegations also may be more persuasive than saturation pleading by giving the impression that the pleader has a compellingly straightforward case. Of course, there is no rule of thumb, and different circumstances dictate different approaches. Suffice it to say that counsel should always ask, "Can this be said more clearly and succinctly?"
15.302 The Plaintiff's Initial Pleadings.
A. In General. Three rules of civil procedure govern basic pleading requirements. Except in certain circumstances, such as when one is pleading fraudulent inducement into the contract, Virginia is a "notice pleading" jurisdiction. Under Rule 1:4(d) of the Rules of the Virginia Supreme Court, "[e]very pleading shall state the facts on which the party relies . . . and
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it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense." Subsection (j) of Rule 1:4 provides that "[b]revity is enjoined as the outstanding characteristic of good pleading. In any pleading a simple statement, in numbered paragraphs, of the essential facts is sufficient." Finally, Rule 3:2(c)(i) provides that "[i]t shall be sufficient for the complaint to ask for the specific relief sought."
B. Iqbal's Plausibility Standard. In 2009, in Ashcroft v. Iqbal, 2 the United States Supreme Court decided that Rule 8(a)(2) of the Federal Rules of Civil Procedure, which provides that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief," requires that the plaintiff allege a set of facts sufficient to make the statement of the claim "plausible on its face." 3 The majority explained the plausibility standard as follows:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief." 4
Often referred to as the "Twiqbal" standard, this has not yet been tested in Virginia state courts, 5 but in other "notice" pleading states with rules of civil procedure similar to the federal rules, courts have reached a variety of results. 6 Virginia federal courts, however, have not hesitated to dismiss complaints that do not meet the new standard. 7
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C. Components of a Complaint.
1. In General. The following is a guideline for setting out a complaint for breach of any contract:
| 1. | Identify the parties; | ||
| 2. | Define the relationships between and among the parties; | ||
| 3. | Identify the basis for the court's jurisdiction and why venue is proper in that court; | ||
| 4. | Describe the contract and all modifications, written or oral; | ||
| 5. | Set forth the controlling legal principles; | ||
| 6. | Describe the breach(es) of contract concisely but with sufficient factual basis to withstand an Iqbal challenge; | ||
| 7. | Describe the demand(s) made for curing the breach(es); | ||
| 8. | Anticipate and negate defenses where possible; | ||
| 9. | Allege that the breach(es) caused damage; |
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| 10. | Identify and quantify the damages; | ||
| 11. | Identify and address whether there is any right to recover attorney fees; and | ||
| 12. | Address the issues relating to interest. |
Many of these elements are obvious and require no discussion. Others, however, contain pitfalls and opportunities that deserve analysis.
2. Defining the Relationship Among the Parties. The manner in which the relationship between and among the parties is described affords an early opportunity to link or separate the parties in the mind of the reader, depending upon counsel's goal. The distinction may be subtle, but such small things as discussing them in the same or separate paragraphs may suggest linkage or separation.
3. Identifying the Basis for Jurisdiction and Identifying the Proper Venue. In order for an action to go forward, the court must have jurisdiction over the matter. To avoid a motion to transfer venue, the case must be brought in the right place. In most cases, these two issues can be addressed by including some variation of the following two paragraphs:
| 1. | This Court has jurisdiction over this matter pursuant to § 17.1-513 of the Code of Virginia (the "Code"). | |||
| 2. | Venue is proper in this Court pursuant to Code § 8.01-262(3) or (4). |
With respect to jurisdiction, certain causes of action give the circuit court specific jurisdiction, but are also likely to be covered under Code § 17.1-513. If the case includes causes of action other than breach of contract, or is being brought in a jurisdiction other than where the defendant resides or the contract was made or breached, a review of Code § 8.01-262 is appropriate.
4. Describing the Contract and All Modifications. All necessary elements of a contract-offer, acceptance, and consideration- should be carefully identified. It is surprising how often an essential element is left out, resulting in an embarrassing need to amend pleadings. To some extent, this type of analysis involves jumping ahead and analyzing potential defenses, some of which might be: (i) lack of mutuality (ii) duress (iii) vagueness (iv) statutes of limitations (v) the parol evidence rule (vi) waiver, and
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(vii) subsequent modification. By making a list of possible defenses in the particular action, the description of the contract can be framed in a way that negates many of the defenses before they are raised.
5. Identifying and Quantifying Damages. This element contains many pitfalls. Perhaps the most frequent is the fact that the damages may not be fully subject to quantification until the happening of a later event, or they may be ongoing. When this is the case, counsel should fully describe the damages and quantify them up to the date of filing to the extent this can be done. When possible, the pleading should also clearly refer to the information necessary to make a final computation when judgment is entered. Examples of this are a per diem interest figure for an unpaid promissory note, or a per diem figure for the cost of maintaining property that is the subject of a specific performance suit pending a decision by the court.
When it is not possible to define the damages with specificity at the pleadings stage-as in a case where the damages are ongoing and variable from day to day-it is permissible and advisable to incorporate into the prayer for relief a statement such as, "The plaintiff requests the Court to enter judgment in his favor against the defendant in the full amount of his damages determined at the trial on the merits of this case." Where there is a jurisdictional floor for damages, such as in federal courts or state circuit courts, counsel should be sure to allege that the damages exceed the jurisdictional amount.
6. Attorney's Fees. While Virginia generally follows the American Rule, wherein the default is that each side will bear its own attorney fees, many contracts contain a provision that allows the prevailing party to recover its reasonable attorney fees. If the case contains other causes of action, there may also be a common law or statutory right to recover attorney fees. Pursuant to Rule 3:25, the complaint must specifically identify the basis by which attorney fees may be recovered. So, if Paragraph 35 of the contract provides that "the party which substantially prevails in any action arising from or relating to the contract is entitled to recover its reasonable attorney's fees," your complaint (likely in your ad damnum clause) should identify not only the request to recover fees, but also the specific paragraph(s) of the contract that give that right.
7. Requesting...
