NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0777n.06 No. 14-5313 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SUZANNE E. BRADLEY, Plaintiff-Appellant, v. WAL-MART STORES EAST, LP, ) ) ) ) ) ) ) ) Defendant-Appellee. FILED Oct 14, 2014 DEBORAH S. HUNT, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE ) ) BEFORE: MOORE and COOK, Circuit Judges; STEEH, District Judge.* STEEH, District Judge. Plaintiff Suzanne E. Bradley appeals from the United States District Court for the Middle District of Tennessee's grant of summary judgment in favor of defendant Wal-Mart Stores East, LP. Bradley brought this negligence action arising from a slip and fall at a Wal-Mart store. The district court found that Bradley failed to advance evidence to support her theory that Wal-Mart had constructive knowledge of the dangerous condition that caused her to fall. On appeal, Bradley argues the district court erred in finding no genuine issue of material fact, improperly weighing evidence, and failing to draw inferences in her favor as the nonmoving party. Because Bradley did not support her theory of liability with evidence creating any genuine issue of * The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting by designation. 1 material fact to be resolved by a jury, we AFFIRM the district court's grant of summary judgment for Wal-Mart. I. BACKGROUND A. Factual Background On May 4, 2011, while shopping at Wal-Mart's store in Lawrenceburg, Tennessee, plaintiff Suzanne Bradley slipped and fell in a puddle of what is speculated to be \"chicken juice.\" The incident took place at 1:45 p.m. in an area of the store referred to as \"Action Alley,\" the busy open area near the front of the store just behind the checkout lines. Four photographs were taken of the floor after Bradley fell and show the presence of a liquid on the floor. Bradley described the liquid as \"sticky\" and said that it did not look like \"a drink or water.\" Wal-Mart's employees who observed the liquid immediately after Bradley fell believed it to be \"chicken juice,\" referring to the liquid that is present in a package of raw chicken. Neither the type of liquid nor its source was ever positively identified through testing or otherwise. Bradley's statement was taken after the incident and she identified the location of her slip and fall as the checkout line for register # 5. Melissa Weathers was the Zone Manager who responded to the scene after the fall. She identified the location of Ms. Bradley's fall as near register # 5 in Action Alley, \"close to the four-way.\" A \"four-way\" is a kiosk displaying merchandise for sale, and the four-way at issue was located in the middle of Action Alley between register #5 and the \"candy wall.\" Ms. Weathers testified that the liquid on the floor was on the far side of the fourway in relation to register #5, between the four-way and the candy wall. Jeremy Rhodes, the Asset Protection Manager at the time of the incident, testified that, based on what was reported to him by those at the scene, Ms. Bradley's fall was approximately 15 feet away from register #5. 2 There are no witnesses to how the liquid came to be on the floor. Both parties suggest that the liquid most likely dripped out of a package of raw chicken being purchased by another customer who checked out at register #5 at some point before Bradley fell. The record of cash register receipts for register #5 shows that ten customers purchased raw chicken at that register in the two hours before the incident. The last chicken purchase made at register #5 prior to Bradley's fall was at 1:25 p.m. Ms. Weathers testified that there are twenty cash registers in Action Alley, but there is no evidence in the record about chicken purchases made at the other nineteen registers in the time leading up to the incident. The area of the fall was cleaned by Wal-Mart's maintenance employees at approximately 12:00 pm. on the day in question. The employees are trained to conduct safety sweeps on an ongoing basis, and to promptly address potentially dangerous conditions. Typically, three customer service managers monitor Action Alley area at all times, with one of the managers having responsibility for the area just behind the cash registers. Action Alley is videotaped in the regular course of business, but the exact spot where Bradley fell was not within the field of view of any of Wal-Mart's surveillance cameras. Mr. Rhodes attested in his affidavit that his review of the video surveillance footage did not show any Wal-Mart employees in the area near Bradley's fall in the twenty minutes preceding her fall. It is undisputed that there is no evidence that any Wal-Mart employee caused the liquid to be on the floor or that any employee actually knew that the liquid was on the floor prior to Ms. Bradley's fall. 3 B. Procedural Background The parties consented to have a magistrate judge preside over the case pursuant to 28 U.S.C. ?? 636(c) and Rule 73(b) of the Federal Rules of Civil Procedure. Wal-Mart filed a motion for summary judgment, supporting memorandum, and concise statement of material facts, alleging that Ms. Bradley could not meet her burden of proof because there was insufficient evidence to prove creation, actual notice, or constructive notice. Bradley filed a response in opposition to the motion for summary judgment, a memorandum in support, a response to Wal-Mart's concise statement of material facts, and her own concise statement of additional material facts. In these responsive documents, Bradley does not allege that Wal-Mart caused or created the dangerous condition, or that it had actual notice of the condition. Rather, Bradley takes the position that Wal-Mart had constructive notice of the chicken juice on the floor for at least twenty minutes prior to her fall. On February 18, 2014, the district court granted Wal-Mart's motion for summary judgment. The court acknowledged that the evidence was sufficient for a jury to reasonably conclude that the substance Bradley slipped on was chicken juice, therefore a jury could reasonably infer that the only plausible explanation as to how the chicken juice came to be on the floor is that it leaked from a package of raw chicken. However, the court held there was no conclusive evidence about where the liquid came from or how long it was present on the floor prior to Bradley's fall. The court found that it was \"unsupported speculation\" to conclude that the liquid Bradley slipped on came from a customer who went through checkout line #5, as opposed to a customer who passed by that spot in Action Alley on his or her way to another checkout line or to another area of the store altogether. 4 The court considered the speculative nature of the evidence of how long the chicken juice had been on the floor, and the affirmative evidence of Wal-Mart's practice of regularly checking the floors of its store. Relying on case law finding no constructive notice due to a dearth of evidence of when and how a dangerous condition came about, the court concluded the evidence in this case could not support a finding of constructive notice and granted Wal-Mart's motion for summary judgment. Ms. Bradley filed this appeal on March 17, 2014. II. STANDARD OF REVIEW We review de novo an order granting summary judgment. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). Summary judgment is warranted \"if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). \"Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact.\" Mosholder v. Barnhardt, 679 F.3d 443, 448-49 (6th Cir. 2012) (citation omitted). \"The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient [to defeat a properly supported motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.\" Id. at 449 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). \"In reviewing the district court's decision to grant summary judgment, we must view all evidence in the light most favorable to the nonmoving party.\" Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). 5 III. ANALYSIS A. No Genuine Issue of Material Fact A properly supported motion for summary judgment will not be defeated by conclusory allegations, speculation and unsubstantiated assertions. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The nonmoving party must come forth with evidence from which a jury can reasonably find in his or her favor in order to survive a motion for summary judgment. Under Tennessee law, merchants owe customers a duty \"to exercise reasonable care to keep the premises in a reasonably safe and suitable condition, including the duty of removing or warning against a dangerous condition traceable to persons for whom the proprietor is not responsible . . . if the circumstances of time and place are such that by the exercise of reasonable care the proprietor should have become aware of such conditions.\" Self v. Wal-Mart Stores, Inc., 885 F.2d 336, 338 (6th Cir. 1989) (citations omitted). Bradley acknowledges that Wal-Mart did not create the dangerous condition, nor did it have actual knowledge of the condition. Bradley's theory of liability is predicated on constructive knowledge by Wal-Mart: the liquid on the floor was a dangerous condition that existed for such length of time that Wal-Mart, in the exercise of ordinary care, should have known of its existence. See Hardesty v. Serv. Merch. Co., Inc., 953 S.W.2d 678, 682-83 (Tenn. Ct. App. 1997). The genuine issues of material fact asserted by Bradley in support of her constructive notice theory are the source of the liquid - chicken juice from a package of raw chicken purchased at register #5 - and the length of time the spill had been on the ground before she fell - at least twenty minutes. As evidence of both issues, Bradley relies on the cash register receipts produced by Wal- 6 Mart for register #5 for the two hours preceding her fall. Asset Protection Manager Rhodes pulled the receipts for register #5 to assist in trying to identify the source of the spill. The mere fact that Wal-Mart retrieved and reviewed transaction receipts for the register closest to Bradley's fall is not an admission by Wal-Mart that the spill came from raw chicken purchased by a specific customer at register #5. Rather, the court must look at the evidence to determine whether it supports the theory of the nonmoving party. Where the spill and the fall occurred fifteen feet away from cash register #5, in the busy Action Alley, on the far side of a four-way kiosk, more evidence is needed for a reasonable finder of fact to conclude that the source of the spill was from an item necessarily purchased at cash register #5. The location of the spill alone does not support such a finding. If ten people bought chicken from register #5, and there are twenty registers in Action Alley, then by extrapolation there were arguably two hundred customers carrying raw chicken through Action Alley in the two hours before the incident. For that matter, it is equally as likely that the source of the spill came from the cart of a shopper who was traversing the store through Action Alley, and had not even purchased the chicken prior to Bradley's fall. The evidence in this case does not support a reasonable inference as to the source of the liquid. Where liability is based on constructive knowledge by defendant, the proof must also show that the dangerous or defective condition existed for such a length of time that the defendant knew, or in the exercise of ordinary care should have known, of its existence. Hardesty, 953 S.W.2d at 682. \"As a general rule, constructive knowledge cannot be established without some showing of the length of time the dangerous condition had existed.\" Id. (citing Self, 885 F.2d at 338). However, 7 the evidence presented by Bradley does not support her theory that the chicken juice had been on the floor for at least twenty minutes before she fell. The burden of proof was on Bradley to rebut Wal-Mart's well-supported motion for summary judgment demonstrating no genuine issue of material fact for trial. As such, the district court did not err in determining that there was no genuine issue of material fact such that Bradley should survive Wal-Mart's motion for summary judgment. B. Court did not Improperly Weigh Evidence or Fail to Draw All Inferences in Favor of Bradley Bradley argues that the district court failed to view the evidence in the light most favorable to her. In this argument, Bradley focuses on Wal-Mart's surveillance videos which were destroyed after thirty days pursuant to its normal business practice. Bradley maintains that Wal-Mart should not be able to present Mr. Rhodes' recollections of his review of the videos, and that she is further entitled to an adverse inference in her favor regarding what the videos show. The testimony that Bradley objects to comes from Rhodes' deposition where he explains that before they were destroyed, he viewed the videos, which did not capture the exact area where Bradley fell. Rhodes testified that he did not see any Wal-Mart employees in the surrounding area that was captured on the surveillance videos. Importantly, Rhodes' testimony about not seeing any sales associates in the area of the incident does not support a material fact as it is not relevant to Bradley's constructive notice theory of liability. Bradley acknowledged that there is no evidence that Wal-Mart had actual notice of the spill before she fell. Therefore, we do not need to address Bradley's spoliation arguments regarding the videotapes. Bradley's final argument is that the district court improperly weighed the evidence, not giving proper weight to Wal-Mart's \"admission\" that the chicken juice spilled from a package of 8 chicken while a customer checked out at register #5 twenty minutes prior to Bradley's fall. As previously discussed, the court deals with evidence, not conclusory allegations, speculation and unsubstantiated assertions. See Lujan, 497 U.S. at 888. We agree with the district court that \"[i]t would be pure conjecture for the jury to conclude that the spilled chicken juice can be linked to any one of these specific customers and, thus, that the chicken juice had been present on the floor for any specific period of time.\" IV. CONCLUSION Bradley failed to support her negligence claim with substantial evidence from which a jury could reasonably find that Wal-Mart had constructive knowledge of a dangerous condition on its premises. Therefore, the district court's order granting Wal-Mart's motion for summary judgment is AFFIRMED. 9 Case Study #1 I. II. III. IV. First read chapter the Complaint from your book. On the book chapter 5 Next read the case posted on LMS in pdf (BRADLEY v. WAL-MART STORES EAST, LP). You will brief this case. Using IRAC Method of briefing. Next, use a template of the Complaint from your book to draft a Complaint to the case in pdf. Chapter 5 Due date: 16.12.2016 at Midnight CHAPTER 5 The Complaint CHAPTER OUTLINE The Nature and Purpose of Pleadings The Elements and Format of a Complaint Identifying and Describing the Parties Alleging Jurisdiction and Venue Pleading the Cause of Action Request for Damages or Other Relief Drafting the Complaint Filing the Complaint Electronic Filing (E-Filing) The Summons Serving the Complaint Amending the Complaint 117 118 PART II: INITIATING LITIGATION COMMENTARYTHE HENDRICKS CASE Your attorney has just given you a file containing the preliminary investigative reports and notes concerning new clients Margaret and Paul Hendricks. After reviewing the various documents in the file, and after discussing the matter with your attorney, you learn the following facts. While vacationing in Nevada, the Hendrickses, residents of the state of California, attended a sales presentation regarding vacation property located in Idaho. During the sales presentation, which was conducted by May Forrester, a real estate agent with Hearth & Home Real Estate Company, the Hendrickses were shown numerous color slides of the vacation property, all depicting large, level lots surrounding a man-made lake. The lots were owned by Paradise Found, Inc., an Idaho corporation. They were told during the presentation that the lots were ready for building. The lots were offered for the price of $100,000 and only two lots remained unsold. The realtor expected these to go quickly. Swayed by the sales presentation, the Hendrickses purchased a lot without personally visiting the site. They paid cash and received a deed. Shortly thereafter they visited the property in Idaho, only to find that the lot they owned was nothing like the photos they had seen. The lake was completely dry, no building had occurred and in fact a great deal of preparation would have to be done before any building could begin. There were no utilities, sewers, or roads. The Hendrickses immediately contacted the realtor, May Forrester, the company she works for, Hearth & Home Real Estate Company, and the seller of the property, Paradise Found, Inc. The sellers refused to return the Hendrickses' money. The file also indicates that Hearth & Home Real Estate Company is a partnership owned by Harry and Harvey Rice. Your attorney is anxious to initiate a lawsuit in this matter and asked you to prepare a complaint for his review, naming all proper parties and containing all possible causes of action. OBJECTIVES Chapter 4 introduced the methods for obtaining information necessary to pursue a lawsuit. After that information is obtained, the next step in the litigation process is the preparation and filing of the initial pleadings. After reading this chapter, you should be able to: define the term pleadings. describe, in general, the contents of a complaint. discuss the various considerations in determining and identifying parties to the lawsuit. analyze the various allegations found in a complaint. explain the types of relief that can be requested in a complaint. draft a complaint. explain the process of filing a complaint. define a summons. list the different methods of serving a complaint. describe the procedure for amending a complaint. CHAPTER 5: THE COMPLAINT 119 THE NATURE AND PURPOSE OF PLEADINGS After completing preliminary investigation, interviews, and research, the attorney determines whether to pursue the case. If the decision is made to proceed, the litigation process formally begins and each party files pleadings in court. Pleadings are the various documents filed in a court proceeding that define the nature of the dispute between the parties. Not all documents filed with the court are pleadings. The term pleading technically refers only to papers that contain statements, or allegations, describing the contentions and defenses of the parties to the lawsuit. Unless a defendant defaults, both the plaintiff and the defendant file pleadings with the court. The plaintiff files the first pleading, a complaint, stating the basis for the lawsuit. The defendant then has the opportunity to respond to the complaint as well as to file related claims that he or she may have. In turn, a response is often filed to the defendant's claims. All of these documents contain either contentions or defense of the parties. (Chapter 6 discusses the various pleadings filed by a defendant.) The pleadings set the framework for all of the steps and proceedings that follow. If an issue is not raised in the pleadings, the parties may be prevented from bringing it up at trial. Although pleadings relate to contentions of the parties, these documents are always prepared by the law firm representing the party. As a paralegal in a litigation firm, one of your duties might include drafting these documents. You might also be asked to review pleadings prepared by the opposing side. The content and format of the various pleadings are largely controlled by the appropriate statutory law. Cases filed in federal court are governed primarily by the Federal Rules of Civil Procedure. Cases filed in a state court are governed by the laws of the state. In addition to state rules, many county or area courts have their own individual rules, known as local rules of court. Within the federal court system, various district courts also may have their own local rules. Local rules can differ from one court to another, even if the courts are located in the same state. Before preparing or filing any pleading, therefore, you must check all local rules. In spite of the numerous technical rules that govern pleadings, most courts take a fairly liberal attitude in reviewing or judging the sufficiency of the documents. The courts today prefer that the parties resolve their disputes based on the merits of the case rather than on some technical rule regarding the format of a document. THE ELEMENTS AND FORMAT OF A COMPLAINT The initial pleading that a plaintiff prepares and files, is generally known as a complaint, or in some cases a petition. This document starts the court proceeding. The complaint is the pleading in which the plaintiff states the basis for the lawsuit. Generally the complaint does the following: 1. identifies the plaintiffs and defendants in the lawsuit, and describes their status and capacity to sue and be sued, 2. contains a statement showing that the court in which it is filed has proper jurisdiction and venue, 3. describes the factual basis for the lawsuit, and 4. makes a request or demand for some relief from the court. pleadings Formal, written statements of each side of a civil case. allegation A statement in a pleading that sets out a fact that the side filing the pleading expects to prove. 120 PART II: INITIATING LITIGATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA Caption NATALIE TOMLINSON AND BRIAN TOMLINSON, Plaintiff, vs. KEVIN DERKSON, Defendant ________________________________ ) Case No.: ) ) COMPLAINT FOR DAMAGES ) (PROMISSORY NOTE) ) ) ) ) ) ) ) ) Plaintiff alleges: Cause of Action/ Allegations 1. Jurisdiction is founded on diversity of citizenship and amount. Plaintiffs are citizens of the Wherefore/Prayer Wherefore plaintiff demands judgment against defendant for the sum of $100,000 dollars, interest, and costs. Subscription Dated this 16th day of February, XXXX caption The heading or introductory section of a legal paper. The caption of a court paper usually contains the names of the parties, the court, and the case number. prayer Request. That part of a legal pleading (such as a complaint) that asks for relief (help, money, specific court action, an action from the other side, etc.). subscription (subscribe) Sign a document. State of Connecticut and defendant is a citizen of the state of Nevada. The matter in controversy exceeds, exclusive of interest and costs, the sum specified by 28 U.S.C. 1332. 2. Defendant on or about June 1, XXXX, executed and delivered to plaintiffs a promissory note whereby defendant promised to pay to plaintiffs or order on June 1, XXXX the sum of $100,000 dollars with interest thereon at the rate of six percent per annum. 3. Defendant owes to plaintiff the amount of said note and interest. ___________________________________ BENEDETTI & VOSSLER 328 First St. Reno, Nevada JULIE BENEDETTI jbenneditti@esq.com EXHIBITEXHIBIT 5-1 Example of a simple complaint 6-5 General denial The complaint itself usually follows a set format with the following parts: 1. The captionthe part of the complaint that identifies the court in which the complaint is filed, the names of the plaintiffs and defendants, and the title of the document. 2. The allegations (or cause of action)a description of the parties, statements showing proper jurisdiction and venue, the factual basis for the lawsuit, and a description of the loss or damages incurred. 3. The prayer or \"wherefore\" clausea request for some relief or remedy from the court. 4. The subscriptionthe signature of the attorney filing the document and the date. The subscription also includes the address and email address of the attorney. See Exhibit 5-1 for an example of a simple complaint. CHAPTER 5: THE COMPLAINT Some complaints also contain a verification, which is a statement signed under penalty of perjury by the plaintiff that the contents of the complaint are true. A verification is required for certain kinds of complaints. Many complaints are much more involved than the one shown in Exhibit 5-1. For example, oftentimes there are multiple plaintiffs and defendants, and these parties may be individuals or various types of business entities that may be using a fictitious name. In many instances there are several causes of action based on very complicated factual situations. Before you begin to draft any complaint you should analyze your case, determine the purpose of your pleading, and outline the general content of your document. Specifically you should know: 121 verification (verify) Swear in writing to the truth or accuracy of a document. who will be named as parties and how they will be named, how you will show that jurisdiction and venue are proper, the type of claims or causes of action that will be included in the complaint, and the type of relief you are demanding. Only after you have done this preliminary analysis should you begin to actually draft the complaint. INDENTIFYING AND DESCRIBING THE PARTIES The parties to the lawsuit are known as the plaintiff, the one who files the action, and the defendant, the one who is sued. They are identified in the caption by their names, indicating whether they are named as plaintiff or defendant. In the body of the complaint, the parties are then described in more detail. Normally the question of who is named as a plaintiff and who is named as a defendant is relatively simple. At times, however, problems can arise. As a paralegal involved in preparing or drafting a complaint, you should be aware of some of these problem areas. Real Party in Interest The plaintiff in any lawsuit should be the one who is entitled to the relief sought in the complaint. This is known as the real party in interest. In most cases, parties do not file lawsuits unless they have personally suffered some loss. However, at times a special relationship exists that creates a different situation. For example, an executor may wish to sue on behalf of an estate, a trustee may sue on behalf of a trust, or a collection agency may wish to sue on a debt assigned to it for collection. In such cases, is the plaintiff the executor or the estate, the trustee or the trust, the collection agency or the creditor? Under Rule 17a of the Federal Rules of Civil Procedure, the executor, the trustee, and even the collection agency could be named as plaintiffs in the lawsuit even though they are not suing on their own behalf. However, if the action is in state court, appropriate state laws should always be checked. Status The status of a party refers to the type of entity that describes the party. Most commonly a party to a lawsuit is an individual, a corporation, a partnership or other unincorporated business, or a government agency. Unless a party is simply an individual, the status of the party is usually real party in interest The person who will ultimately benefit from winning a lawsuit, whether or not that person brought it initially. 122 PART II: INITIATING LITIGATION described both in the caption and in a separate allegation within the body of the complaint. For example, in the situation described in the Commentary to this chapter, if the Hendrickses were to sue the seller of the property, the seller would be identified in the caption as follows: Example vs. PARADISE FOUND, INC., an Idaho Corporation, Defendant ____________________________ ) ) ) ) ) ) ) ) In addition, within the body of the complaint you would include a paragraph describing that status, such as the following: Example 1. Defendant, PARADISE FOUND, INC., is and was at all times herein mentioned a corporation duly organized and existing under the laws of the state of Idaho. Capacity capacity Legal ability to do something. guardian ad litem A guardian who is appointed by a court to take care of the interests of a person who cannot legally take care of him- or herself in a lawsuit involving that person. Minors and Incompetents The parties named in the complaint must have capacity, or the legal right, to sue or be sued. Competent, adult individuals generally have the right to sue or be sued. However, children or incompetent adults do not have the capacity to pursue their own lawsuits. Unless a general guardian or conservator has already been appointed, the court will appoint a special person, referred to as a guardian ad litem, to pursue the case on behalf of the minor or incompetent. Even the parents of a child cannot file a lawsuit on their child's behalf unless they have been appointed as guardians by the court. A guardian ad litem is usually appointed at the request of the parent or guardian. The person wishing to be appointed files a motion or a petition with the court prior to filing any lawsuit, asking to be named as guardian ad litem. The complaint in such a case would have the same caption as the petition or motion for the appointment of the guardian. The following is an example of how the parties would be designated in such a case. Example MARY SMITH, a minor, by GEORGE SMITH, her guardian ad litem, Plaintiff vs. DEF CORPORATION, a California Corporation, Defendant _____________________________________ ) ) ) ) ) ) ) ) ) ) CHAPTER 5: THE COMPLAINT 123 THE COMPUTERIZED LAW FIRM Word Processing and Electronic Filing SCENARIO Your attorney is ready to file suit on behalf of the Hendrickses and asks you to prepare a draft of the complaint for fraud and negligent misrepresentation for his review. The attorney gives you the office file containing his detailed notes from interviews with the Hendrickses. He also gives you several letters written by the defendant that need to be attached to the complaint as exhibits. He reminds you to look at the rules of court and make sure that your complaint meets all of the requirements. Additionally, you are told that this complaint is to be electronically filed and this must be done before the end of the week. PROBLEM You have a great deal to do and very little time in which to do it. You must look in form books to find a form for a complaint for fraud and negligent misrepresentation. Using that form and the facts of your case, you must then prepare a written complaint that complies with all of the rules of court, including the rules for e-filing. Checking your rules of court, you find technical rules regarding margins, footers, type size, and spacing as well as rules that affect case title, attorneys' names and addresses, and exhibits. The court also has special rules for e-filing. How do you complete this assignment? SOLUTION When faced with a complicated task, such as this one, you should begin by listing the individual activities you must complete. In this case, that list might look like this: 1. Review local rules of court for document requirements and e-filing procedures 2. Find a form for a complaint for fraud and negligent misrepresentation 3. Using the form and the facts of the Hendricks case, draft the complaint 4. After attorney review, prepare the complaint for e-filing 5. Complete the e-filing process. Attorneys and paralegals have always relied on form books to draft documents such as complaints. Today these form books are available on CD-ROM or can be accessed through the legal databases, Westlaw and Lexis. Accessing them electronically allows you to eliminate much of the time-consuming retyping because the forms can be downloaded, copied, and pasted into your final document. Any word processor allows you to do this. To make this task easier, word processors such as Microsoft Word or Corel WordPerfect have special features or templates to help generate a court pleading. (Microsoft Word has a feature entitled, \"Pleading Wizard.\") With these templates, compliance with technical court rules is simple and automatic. Preparing a pleading for electronic filing requires an additional step. Your complaint must be saved in a portable document format (PDF). Later versions of Microsoft Word or Corel's WordPerfect allow you to save a document in this format. Software programs such as Adobe Acrobat also enable you to do this. Since you are attaching exhibits to the complaint (i.e., copies of original letters), these will need to be scanned before they can be electronically sent to the court. To electronically file the documents requires a computer and Internet access. Courts that accept electronic filing, and many do, have detailed instructions on their Web sites regarding the procedures you must use. Many legal tasks are simplified by the use of computers. Some tasks, such as electronically filing a document, cannot be done without automation. Although children or incompetents cannot sue in their own names, they can generally be named as defendants in the complaint. However, after they are served with the complaint, they may be entitled to have a guardian appointed to represent their interests. Again, local law should be reviewed to determine whether appointment of a guardian ad litem for a defendant is necessary and, if so, how it is accomplished. 124 PART II: INITIATING LITIGATION Corporations and Other Business Entities A corporation is a \"person\" for legal purposes, including lawsuits. As such it has capacity to sue or be sued in the corporate name. In fact, if a corporation is a plaintiff or a defendant in a lawsuit, it must be identified by the corporate name rather than the name of the directors, officers, or shareholders. Exceptions do occur, however, in the case of corporate defendants. If the corporation fails to act like a corporationnot keeping corporate minutes, not holding meetings, failing to keep corporate assets separate from personal assets, and so onthen the individuals behind the corporation can be sued individually. This is known as piercing the corporate veil. The directors, officers, or shareholders of a corporation will also be named individually as defendants if they have personally done something wrong. Business entities other than corporations may be treated differently. An unincorporated association, such as a partnership, does not have legal existence separate and apart from the partners. It is proper, therefore, for such an organization to sue and be sued in the name of its members. Whether or not such a business must be sued in the name of its members is a question of local law. For example, some jurisdictions allow a partnership to be sued in the partnership name. Before doing this, however, you should check the law regarding collection of a judgment when the individual partners have not been named. Limitations may be placed on which assets can be seized to satisfy the judgment. When suing a partnership or other unincorporated business entity, it is common to list both the partners' names and the business name, as in the following example: Example vs. HARRY RICE and HARVEY RICE, A partnership, doing business as Hearth & Home Real Estate Co., Defendants __________________________________ ) ) ) ) ) ) ) ) Governmental Agencies There is no question about the right of a government entity to sue on a claim. However, because of the common law doctrine of sovereign immunity (the king could not be sued), many jurisdictions have laws that limit and regulate the circumstances under which a government entity can be sued. Appropriate statutes must be checked to see if the claim is one for which the offending government agency can be sued. Even when a statute permits the government to be sued, many laws require that claims be filed with the government agency before actually filing a lawsuit. (See Chapter 3.) In such a case, it may be necessary to allege in the body of the complaint that this has been done. Special Problems with Parties Parties Using Fictitious Names Many businesses do not use their true names in the operation of their businesses. Individuals, either operating alone or with others, often choose to do business under a name that has more business appeal than their real names. At times, even corporations will do business under a name other than the real corporate name. If a CHAPTER 5: THE COMPLAINT 125 plaintiff uses a fictitious name in his business, a lawsuit that he files related to that business should identify the plaintiff by his proper name. If he wishes, the plaintiff may indicate that he is doing business under another name. The plaintiff would then be identified as follows: Example MARTIN REDSHAW, doing business as Marty's Diner, Plaintiff vs. ) ) ) ) ) ) ) ) __________________________________ If the plaintiff is doing business under a fictitious name, before the lawsuit is filed you should verify that the plaintiff has complied with all local laws regarding such usage. Some states, for example, require that fictitious name statements be filed, and failure to do so can affect the right of a party to sue in some cases. When the defendant is doing business under a fictitious name, the true name of the party may be unknown to you when you are preparing the complaint. Your state may have various records that can be checked, but these are not always complete or accurate. It is therefore necessary to identify the defendant in the complaint by the fictitious name. In such a case, when the true name of the defendant or defendants is determined, the complaint can generally be amended. Fictitious Defendants Not to be confused with parties who use a fictitious name in business is a concept known as fictitiously named defendants, a procedure that is allowed in some jurisdictions. This term usually refers to defendants whose very identity is unknown. They are usually identified as \"Does.\" In jurisdictions that allow their use, \"Does\" are commonly named as defendants in complaints to cover a situation in which a new defendant is discovered after the statute of limitations has run. In such a case the attorney argues that the complaint was filed against the newly discovered defendant within the statute of limitations; he was just referred to by an incorrect name. The attorney then tries to amend the complaint to \"correct\" the name. \"Does\" are not used in federal court. Instead, Rule 15 of the Federal Rules of Civil Procedure allows plaintiffs to name a newly discovered defendant even after the statute of limitations has run, as long as the new party received notice that the lawsuit had been filed within the time allowed for service, would not be unduly prejudiced, and knew that but for a mistake, he or she would have been named as a party in the original lawsuit. In such a case, the date of filing against the new party \"relates back\" to the original filing date. Joining Multiple Parties Many lawsuits involve disputes with multiple plaintiffs and/or defendants. The rules concerning joinder of multiple parties can be extremely involved and confusing. However, joinder of parties usually falls into two categories: joinder that is allowed but not required, fictitiously named defendants Defendants in a lawsuit who are not identified by their correct names; usually refers to the practice in some state courts of including several \"Does\" as defendants to provide for discovery of additional defendants after the statute of limitations has run. 126 PART II: INITIATING LITIGATION permissive joinder A concept allowing multiple parties to be joined in one lawsuit as plaintiffs or defendants as long as there is some common question of fact or law. compulsory joinder (joinder) A party or issue that must be included in a case. indispensable party A person who has such a stake in the outcome of a lawsuit that the judge will not make a final decision unless that person is formally joined as a party to the lawsuit. known as permissive joinder; and joinder that is required, or compulsory joinder. Before drafting any complaint with multiple parties, you may need to review these rules. For example, in the Hendricks case described in the Commentary, you may need to know whether the Hendrickses can sue the realtor, the company for which she works, and the seller all in the same lawsuit. This is determined by the rules of joinder, which are usually found in the appropriate state laws (or Rules 19-21 of the Federal Rules of Civil Procedure, if the case is in federal court). The rules regarding permissive joinder, joinder of parties that is allowed but not required, are usually very liberal. Parties are permitted to be joined together in a complaint as plaintiffs or defendants as long as there is some common question of law or fact and the claim arises out of the same occurrence or series of occurrences. Of course, you would not name someone as a plaintiff in a complaint unless your law firm represented that party. Whether certain parties must be joined in the same complaint is a more difficult issue. Generally, if the court cannot resolve the matter without the presence of a party, then joinder of the party is required. For example, suppose that title to a certain piece of real property is in question, and four different individuals are claiming ownership. If one of those parties files a lawsuit to determine ownership (known as a quiet title action), he would have to name the other three claimants as defendants. The court could not determine ownership unless all four parties appeared before the court. When parties are required to be joined in the lawsuit, they are sometimes referred to as indispensable parties. Even when it seems that joinder of certain parties is essential to the case, if jurisdiction over one of the parties is impossible to obtain, the court may allow the matter to proceed without that party being named. These cases obviously present complicated legal issues that must be thoroughly researched before you prepare the complaint. Class Actions class action A lawsuit brought for yourself and other persons in the same situation. At times the number of potential plaintiffs in an action becomes too numerous to be practical. When this happens, a class action can result. A class action occurs when one or more parties who share a claim with a multitude of others file a lawsuit in their own names and also claim to represent numerous others in a similar situation. To maintain a class action, the party filing the lawsuit must usually get permission from the court to proceed with the action. If the court grants permission, it will also direct that all members of the class get notice of the action. Generally the court also orders that all class members who can be identified should get individual notice. This can be an overwhelming and expensive task. If your firm is involved in a class action, as a litigation paralegal you may be asked to take responsibility for this part of the litigation. Included in the notice to all potential members of the class is usually an explanation that any potential class member can request in writing that he or she be excluded from the class. If a member does not request exclusion, that class member will be bound by any judgment in the case. Class actions permit cases to be brought when the amount of damages suffered by each plaintiff is minimal but the total damages suffered by all is substantial. In such a case it is not practical for parties to maintain their own individual lawsuits. The cost of litigation would outweigh any benefit. By joining together, the class of injured parties is able to minimize expenses and justify the litigation. CHAPTER 5: THE COMPLAINT 127 Every jurisdiction has its own rules, found in statutes and cases, regarding class action lawsuits. These rules usually deal with such matters as who can file, who is entitled to notice of the action, how that notice is to be given, and who must bear the cost of notice. Rule 23 of the Federal Rules of Civil Procedure governs class actions in federal court. Rule 23 allows a class action when all the following conditions are met: the class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the class, the claims or defenses of the representative parties are typical of the claims or defenses of the class, and the representative parties will fairly and adequately protect the interests of the class. Rule 23 also requires one of the following for maintaining a class action: individual lawsuits might produce the possibility of inconsistent decisions or the decision in one case might unfairly prejudice another case or the party opposing the class has acted in a way that is generally applicable to all members of the class or common questions of law or fact predominate over individual questions of law or fact. Interpleader A special type of action or complaint, known as interpleader, also involves questions of joinder of parties. Interpleader refers to a type of action in which several different parties claim ownership to a fund or property that is in the control of another. For example, an insurance company provides liability coverage to an airline with a policy limit of $1 billion. A plane crashes, and the heirs of the victims file claims with the airline and the insurance company in excess of $10 billion. If liability is clear, the insurance company might determine at the outset that it is going to have to pay the policy limits. However, the question of how this money is to be appropriated remains. The insurance company does not want to unilaterally make this decision because it would probably be sued if the claimants did not agree with the distribution. The appropriate action, therefore, is for the insurance company to ask the court to decide how the funds should be disbursed. This is accomplished by filing an action in interpleader with the court, naming all of the claimants as defendants. The insurance company can then deposit the policy limits with the court and withdraw from the action, leaving the claimants to fight over the money. (Refer to Exhibit 5-4 found later in the chapter and read the section entitled Complaint for Interpleader and Declaratory Relief.) ALLEGING JURISDICTION AND VENUE The complaint in any action must contain some allegation showing that the lawsuit is being filed in the proper court. This involves questions of both jurisdiction and venue. In a complaint filed in federal court, these allegations are usually very specific. In showing jurisdiction, the plaintiff states why the action is filed in federal court, giving a citation to the appropriate United States Code section. The Appendix to the Federal Rules of Civil Procedure contains sample allegations regarding federal jurisdiction (see Exhibit 5-2). interpleader A procedure in which persons having conflicting claims against a third person may be forced to resolve the conflict before seeking relief from the third person. 128 PART II: INITIATING LITIGATION a. (For diversity-of-citizenship jurisdiction.) The plaintiff is [a citizen of Michigan] [a corporation incorporated under the laws of Michigan with its principal place of business in Michigan]. The defendant is [a citizen of New York] [a corporation incorporated under the laws of New York with its principal place of business in New York]. The amount in controversy, without interest and costs, exceeds the sum or value specified by 28 U.S.C. 1332. b. (For federal-question jurisdiction.) This action arises under [the United States Constitution, specify the article or amendment and the section] [a United States treaty specify] [a federal statute, ___ U.S.C. ___]. c. (For a claim in the admiralty or maritime jurisdiction.) This is a case of admiralty or maritime jurisdiction. (To invoke admiralty status under Rule 9(h) use the following: This is an admiralty or maritime claim within the meaning of Rule 9(h).) EXHIBIT 5-2 Sample allegations regarding federal jurisdiction In state courts, jurisdiction is determined by state law. Normally it is not necessary to make any express statement that jurisdiction is proper in state court. Such a conclusion will usually follow from all of the facts alleged in the complaint. In some states, however, there are different kinds of trial courts with different kinds of jurisdiction. For example, some state trial courts are empowered to hear civil cases only when the amount in dispute is less than a set amount of money. Within the complaint and in the prayer, or demand for relief, it should be shown that the amount claimed is within the jurisdiction of the court in which the case is filed. In federal or state courts, venue can be determined by a number of factors. The most common factor is the residence of the defendant. Proper venue can be shown in the complaint by an allegation that one of the defendants resides in the district in which the action is filed. Venue is also proper in the place where the cause of action arose. Therefore, another common way of establishing venue is by alleging that the cause of action arose in the district in which the action is filed. However, there are many different ways to establish venue, depending on the nature of the case (review Chapter 2). See Exhibit 5-3 for examples of allegations showing venue. At all times herein mentioned, defendant was and now is a resident of the County of _______________, State of _______________. or The County of _______________ is the proper county in which to bring and maintain this action by virtue of the fact that defendant, ABC Corporation, has its principal executive offices located therein. or The County of _______________ is the proper county in which to bring and maintain this action by virtue of the fact that the real property, which is the subject of this action, is located in said county. EXHIBIT 5-3 Sample venue allegations CHAPTER 5: THE COMPLAINT PLEADING THE CAUSE OF ACTION Although the complaint or petition usually follows certain legal technicalities, it is primarily a document that shows the factual basis for the lawsuit. It does not contain any discussion or analysis of legal theories. However, when reviewing the facts that are alleged in the complaint, the defendant's attorney and the court should be able to tell that there is a legal basis for the lawsuit, even though the legal basis need not be expressly stated in the complaint. How detailed this factual description must be depends on the jurisdiction in which the lawsuit is filed. If you recall the discussion in Chapter 3, you remember that before deciding to file any lawsuit, an attorney must determine that a party has a cause of action, that is, a kind of dispute exists in which one party is entitled to some kind of legal remedy. In some jurisdictions the complaint must contain factual allegations or statements that support each element of the cause of action. Because this method of pleading is based on a New York law known as the \"Field Code,\" these jurisdictions are sometimes known as code pleading jurisdictions. Other jurisdictions, including the federal courts, have a less stringent requirement. For most types of cases, the complaint must contain sufficient facts to put the defendant on notice as to why he is being sued, but it is not essential that each element of the cause of action be supported by factual allegations. This method of pleading is known as notice pleading. Even in notice pleading jurisdictions, some types of cases demand more detailed facts within the complaint. Rule 9 of the Federal Rules of Civil Procedure, for example, requires that allegations of fraud or mistake be stated with particularity. Furthermore, even though the Federal Rules allow fairly general and nonspecific pleading, more particular allegations are allowed. The use of more detailed allegations in a complaint may affect later discovery and disclosure rights and obligations (discussed in Chapter 8) and should be carefully considered. Although differences exist in the technical requirements between code pleading jurisdictions and notice pleading jurisdictions, a complaint that is sufficient under code pleading rules is generally sufficient under notice pleading rules. The important thing to remember is that both types of pleading require that facts, and not legal theories, be alleged. The Federal Rules of Civil Procedure contain an Appendix of Forms, including several that can be used as a basis for various causes of action (see Exhibit 5-4). Remember, however, that these forms would only be a part of a complaint. For a complete document you would add a caption, the proper language showing jurisdiction, appropriate paragraphs showing status and capacity of the parties, as well as venue and any other relevant allegations. (Although the Federal Rules do not require that status and capacity be specifically stated, they often are.) Compare Exhibit 5-1 with the Complaint on a Promissory Note found in Exhibit 5-4. Alleging Multiple Claims Often a plaintiff has more than one potential claim against the defendant. Again, consider the Hendricks case described in the opening Commentary. If the plaintiffs can prove their realtor knew that the slides of the property were forgeries and that the property was not suitable for building and lied to them about it, they have a claim for fraud or intentional misrepresentation. Such a claim, if proven, would entitle the plaintiffs to punitive damages in addition to their out-of-pocket losses. However, proving that a misrepresentation was intentional is sometimes difficult, and the plaintiff's attorney may wish to have a claim for negligent misrepresentation as well, in the event that the defendant's intent cannot be adequately shown. Certainly, in 129 130 PART II: INITIATING LITIGATION COMPLAINT TO RECOVER A SUM CERTAIN (Caption - See Form 1.*) 1. (Statement of Jurisdiction - See Form 7.*) (Use one or more of the following as appropriate and include a demand for judgment.) (a) On a Promissory Note 2. On date, the defendant executed and delivered a note promising to pay the plaintiff on date the sum of $ _______ with interest at the rate of __ percent. A copy of the note [is attached as Exhibit A] [is summarized as follows: ____________.] 3. The defendant has not paid the amount owed. (b) On an Account 2. The defendant owes the plaintiff $_______ according to the account set out in Exhibit A. (c) For Goods Sold and Delivered 2. The defendant owes the plaintiff $ ______ for goods sold and delivered by the plaintiff to the defendant from date to date. (d) For Money Lent 2. The defendant owes the plaintiff $ _______ for money lent by the plaintiff to the defendant on date. (e) For Money Paid by Mistake 2. The defendant owes the plaintiff $ ______ for money paid by mistake to the defendant on date under these circumstances: describe with particularity in accordance with Rule 9(b). (f) For Money Had and Received 2. The defendant owes the plaintiff $ _______ for money that was received from name on date to be paid by the defendant to the plaintiff. Demand for Judgment Therefore, the plaintiff demands judgment against the defendant for $ _________, plus interest and costs. (Date and sign - See Form 2.*) COMPLAINT FOR NEGLIGENCE (Caption - See Form 1.) 1. (Statement of Jurisdiction - See Form 7.) 2. On date, at place, the defendant negligently drove a motor vehicle against the plaintiff. 3. As a result, the plaintiff was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $_________. Therefore, the plaintiff demands judgment against the defendant for $ _________, plus costs. (Date and sign - See Form 2). EXHIBIT 5-4 Allegations for various complaints (Federal Rules Appendix) CHAPTER 5: THE COMPLAINT COMPLAINT FOR SPECIFIC PERFORMANCE OF A CONTRACT TO CONVEY LAND (Caption - See Form 1.) 1. (Statement of Jurisdiction - See Form 7.) 2. On date, the parties agreed to the contract [attached as Exhibit A][summarize the contract]. 3. As agreed, the plaintiff tendered the purchase price and requested a conveyance of the land, but the defendant refused to accept the money or make a conveyance. 4. The plaintiff now offers to pay the purchase price. Therefore, the plaintiff demands that: (a) the defendant be required to specifically perform the agreement and pay damages of $ _______, plus interest and costs, or (b) if specific performance is not ordered, the defendant be required to pay damages of $ ________, plus interest and costs. (Date and sign - See Form 2.) COMPLAINT FOR PATENT INFRINGEMENT (Caption - See Form 1.) 1. (Statement of Jurisdiction See Form 7.) 2. On date, United States Letters Patent No. _______ were issued to the plaintiff for an invention in an electric motor. The plaintiff owned the patent throughout the period of the defendant's infringing acts and still owns the patent. 3. The defendant has infringed and is still infringing the Letters Patent by making, selling, and using electric motors that embody the patented invention, and the defendant will continue to do so unless enjoined by this court. 4. The plaintiff has complied with the statutory requirement of placing a notice of the Letters Patent on all electric motors it manufactures and sells and has given the defendant written notice of the infringement. Therefore, the plaintiff demands: (a) a preliminary and final injunction against the continuing infringement; (b) an accounting for damages; and (c) interest and costs. (Date and sign - See Form 2.) COMPLAINT FOR COPYRIGHT INFRINGEMENT AND UNFAIR COMPETITION (Caption - See Form 1.) 1. (Statement of Jurisdiction - See Form 7.) 2. Before date, the plaintiff, a United States citizen, wrote a book entitled______________. 3. The book is an original work that may be copyrighted under United States law. A copy of the book is attached as Exhibit A. 4. Between date and date, the plaintiff applied to the copyright office and received a certificate of registration dated ________ and identified as date, class, number . 5. Since date, the plaintiff has either published or licensed for publication all copies of the book in compliance with the copyright laws and has remained the sole owner of the copyright. EXHIBIT 5-4 (continued ) 131 132 PART II: INITIATING LITIGATION 6. After the copyright was issued, the defendant infringed the copyright by publishing and selling a book entitled ______________, which was copied largely from the plaintiff's book. A copy of the defendant's book is attached as Exhibit B. 7. The plaintiff has notified the defendant in writing of the infringement. 8. The defendant continues to infringe the copyright by continuing to publish and sell the infringing book in violation of the copyright, and further has engaged in unfair trade practices and unfair competition in connection with its publication and sale of the infringing book, thus causing irreparable damage. Therefore, the plaintiff demands that: (a) until this case is decided the defendant and the defendant's agents be enjoined from disposing of any copies of the defendant's book by sale or otherwise; (b) the defendant account for and pay as damages to the plaintiff all profits and advantages gained from unfair trade practices and unfair competition in selling the defendant's book, and all profits and advantages gained from infringing the plaintiff's copyright (but no less than the statutory minimum); (c) the defendant deliver for impoundment all copies of the book in the defendant's possession or control and deliver for destruction all infringing copies and all plates, molds, and other materials for making infringing copies; (d) the defendant pay the plaintiff interest, costs, and reasonable attorney's fees; and (e) the plaintiff be awarded any other just relief. (Date and sign - See Form 2.) COMPLAINT FOR INTERPLEADER AND DECLARATORY RELIEF (Caption - See Form 1.) 1. (Statement of Jurisdiction - See Form 7.) 2. On date, the plaintiff issued a life insurance policy on the life of name with name as the named beneficiary. 3. As a condition for keeping the policy in force, the policy required payment of a premium during the first year and then annually. 4. The premium due on date was never paid, and the policy lapsed after that date. 5. On date, after the policy had lapsed, both the insured and the named beneficiary died in an automobile collision. 6. Defendant name claims to be the beneficiary in place of name and has filed a claim to be paid the policy's full amount. 7. The other two defendants are representatives of the deceased persons' estates. Each defendant has filed a claim on behalf of each estate to receive payment of the policy's full amount. 8. If the policy was in force at the time of death, the plaintiff is in doubt about who should be paid. Therefore, the plaintiff demands that: (a) each defendant be restrained from commencing any action against the plaintiff on the policy; (b) a judgment be entered that no defendant is entitled to the proceeds of the policy or any part of it, but if the court determines that the policy was in effect at the time of the insured's death, that the defendants be required to interplead and settle among themselves their rights to the proceeds, and that the plaintiff be discharged from all liability except to the defendant determined to be entitled to the proceeds; and (c) the plaintiff recover its costs. (Date and sign - See Form 2.) * The Appendix of Forms to the Federal Rules of Civil Procedures also contains sample forms for common features and allegations for complaints. EXHIBIT 5-4 Allegations for various complaints (Federal Rules Appendix) (continued ) CHAPTER 5: THE COMPLAINT the case described, the realtor should have been more certain about her facts before making representations to prospective buyers. Proving negligent misrepresentation would entitle the plaintiffs to their actual losses but would not allow an award of punitive damages. This is an alternative claim, which can be stated in the complaint. Normally, this claim would be set out in a second cause of action, sometimes referred to as a count, separate from the first cause of action or first count for fraud. In the Hendricks case, other causes of action may also be possible. For example, the Hendrickses might simply wish to disaffirm the contract (rescind it) and get their money back (restitution). Additionally, because the Hendrickses did not have their own real estate agent, the facts might indicate that May Forrester was acting in a dual capacity, representing both Paradise Found, Inc., and the Hendrickses. As such, May Forrester would be in a special fiduciary relationship with the Hendrickses, a relationship that she abused. This could result in another claim. A complaint may contain any number of causes of action or counts. Whenever a cause of action arises out of the same general factual situation, the rules of pleading usually allow them to be joined in the same complaint. Determining whether the defendant's conduct toward the plaintiff results in more than one claim or cause of action can be very difficult. As a general rule, if the claims provide different remedies or are proven by different facts or evidence in the case, they should probably be separated into distinct causes of action. However, because the rules for interpreting pleadings are so liberal, if two or more claims are combined into one cause of action, the court could either allow the pleading to stand as written or allow it to be amended. A question sometimes arises when a complaint contains two inconsistent causes of action. For example, consider the following situation. Bryant signs a contract with Yates to buy a house for $200,000. Before the time for the deal to close, Yates informs Bryant that he has changed his mind and will not sell. As of the date of sale, the value of the house had increased to $220,000. Bryant now has a choice. Does he want the house, or should he make Yates pay for any damages that he incurred because he did not get the house (the damages being the difference between the purchase price and the fair market value at the time and place of sale)? If he gets the house at the original contract price, he will not have incurred the loss of profit in the house. Therefore, asking both for specific performance of the contract and for damages because it was not performed are inconsistent. The rules of pleading usually allow the plaintiff to allege causes of action that are inconsistent. However, the plaintiff will not get a judgment on both of them. Multiple Parties and Causes of Action We have already seen that a complaint may contain multiple plaintiffs or defendants. When this occurs, questions arise about whether the parties should be joined within the same cause of action, or whether separate causes of acti