Is a Verified Complaint sufficient to withstand Summary Judgment (or FRCP 12b MTD)?

[Paul84]

What is the name of your state (only U.S. law)? New York, Federal

I have a verified complaint with precise facts listed, but would like to know if I also have to submit a declaration with exhibits attached (and referred to in the brief to oppose an FRCP 12b motion to dismiss)? The verified complaint begins with the language: "Unless indicated, these facts come from my personal knowledge or documented sources." and ends with "I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief." In other words, the complaint indicates which of the relatively few areas are based on my belief (and thus subject to discovery).

At this stage, before discovery, I would prefer not to attach exhibits because (a) they are business records, and I don't want the defendants accusing me of gathering them improperly (even though most, if not all, were emails to/from me and/or non-confidential files created by me) and (b) I don't want to reveal work product since one of the causes of action partially relies on interviews. According to FRCP 807, I believe I can provide just the interviewees' contact info when requested during discovery. Correct?

 

[TheGeekess]

What is the name of your state (only U.S. law)? New York, Federal

I have a verified complaint with precise facts listed, but would like to know if I also have to submit a declaration with exhibits attached (and referred to in the brief to oppose an FRCP 12b motion to dismiss)? The verified complaint begins with the language: "Unless indicated, these facts come from my personal knowledge or documented sources." and ends with "I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief." In other words, the complaint indicates which of the relatively few areas are based on my belief (and thus subject to discovery).

At this stage, before discovery, I would prefer not to attach exhibits because (a) they are business records, and I don't want the defendants accusing me of gathering them improperly (even though most, if not all, were emails to/from me and/or non-confidential files created by me) and (b) I don't want to reveal work product since one of the causes of action partially relies on interviews. According to FRCP 807, I believe I can provide just the interviewees' contact info when requested during discovery. Correct?

If this is all about the same matter, it is preferred that you keep it all to one thread.

https://forum.freeadvice.com/civil-litigation-46/questions-about-reply-briefs-other-motion-practice-596494.html
https://forum.freeadvice.com/civil-litigation-46/judgement-amount-595507.html
https://forum.freeadvice.com/civil-litigation-46/want-represent-myself-civil-case-owed-30k-family-member-595159.html
https://forum.freeadvice.com/civil-litigation-46/time-frame-appeal-one-cause-if-others-ongoing-591218.html
https://forum.freeadvice.com/civil-litigation-46/free-cheap-equivalents-westlaw-lexisnexis-pacer-looking-up-cases-591190.html
https://forum.freeadvice.com/civil-litigation-46/clarifying-intent-after-handwritten-endorsed-order-grant-more-time-591057.html
https://forum.freeadvice.com/civil-litigation-46/does-u-s-d-j-handle-all-dispositive-motions-does-u-s-m-j-do-some-591182.html
https://forum.freeadvice.com/civil-litigation-46/can-lawyer-authorized-company-waive-process-say-he-cannot-accept-process-591038.html
https://forum.freeadvice.com/civil-litigation-46/clarifying-intent-after-handwritten-endorsed-order-grant-more-time-591057.html

 

[Paul84]

If this is all about the same matter, it is preferred that you keep it all to one thread.

https://forum.freeadvice.com/civil-litigation-46/questions-about-reply-briefs-other-motion-practice-596494.html
https://forum.freeadvice.com/civil-litigation-46/judgement-amount-595507.html
https://forum.freeadvice.com/civil-litigation-46/want-represent-myself-civil-case-owed-30k-family-member-595159.html
https://forum.freeadvice.com/civil-litigation-46/time-frame-appeal-one-cause-if-others-ongoing-591218.html
https://forum.freeadvice.com/civil-litigation-46/free-cheap-equivalents-westlaw-lexisnexis-pacer-looking-up-cases-591190.html
https://forum.freeadvice.com/civil-litigation-46/clarifying-intent-after-handwritten-endorsed-order-grant-more-time-591057.html
https://forum.freeadvice.com/civil-litigation-46/does-u-s-d-j-handle-all-dispositive-motions-does-u-s-m-j-do-some-591182.html
https://forum.freeadvice.com/civil-litigation-46/can-lawyer-authorized-company-waive-process-say-he-cannot-accept-process-591038.html
https://forum.freeadvice.com/civil-litigation-46/clarifying-intent-after-handwritten-endorsed-order-grant-more-time-591057.html

No, most of those links don't refer to this case, and the others don't pertain to the specific question. So why the need to keep in one thread if none contain relevant background info?

 

[tranquility]

No, most of those links don't refer to this case, and the others don't pertain to the specific question. So why the need to keep in one thread if none contain relevant background info?

Since you don't know the answer to the question, how do you know what is "relevant"?

 

[Sloop John D]

I'm having a hard time following exactly what you're asking about.

Is this a 12b motion or a motion for summary judgment? While they are both summary proceedings, a motion for summary judgment and a 12b motion are handled very differently. The 12b motion is asking if the complaint states sufficient facts to create liability for the Defendant, while a summary judgment motion is asking if 1.) there are any facts in dispute, and 2.) can the court rule on the matter immediately without a trial?

In either case, I believe a court can normally take judicial notice of a complaint, so you don't have to declare anything a second time. You might want to attach a copy of the complaint to the motion if it's not too long. Whether or not you have to state to the court that they may or must take judicial notice of the complaint will depend on the procedural rules for your state and the local rules for the court.

If you're presenting this case without the assistance of counsel, you can use the opposing side's motions as a guide. If the opposing party files a 12b motion, they will need to make significant reference to your complaint. Check and see if they attached the complaint as an exhibit or made any additional statement about taking judicial notice of the complaint. If opposing counsel's motion was accepted without additional exhibits, then it's highly unlikely that the court will reject your opposition for failure to attach appropriate exhibits or failure to make declarations.

 

[tranquility]

At the very least, the other threads might show what kind of 12(b)(?) motion this is. As to Sloop John D's thought of judicial notice, some court's local rules declare that to be the same as no response to the motion.

 

[TheGeekess]

At the very least, the other threads might show what kind of 12(b)(?) motion this is. As to Sloop John D's thought of judicial notice, some court's local rules declare that to be the same as no response to the motion.

If one person has 'that' many legal problems that he/she has to ask 'that' many questions I'd suggest storing the attorney-on-retainer's phone number on speed dial.

 

[Paul84]

motion to dismiss on FRCP 12b(6): failure to state a claim

I'm having a hard time following exactly what you're asking about.

Is this a 12b motion or a motion for summary judgment? While they are both summary proceedings, a motion for summary judgment and a 12b motion are handled very differently. The 12b motion is asking if the complaint states sufficient facts to create liability for the Defendant, while a summary judgment motion is asking if 1.) there are any facts in dispute, and 2.) can the court rule on the matter immediately without a trial?

In either case, I believe a court can normally take judicial notice of a complaint, so you don't have to declare anything a second time. You might want to attach a copy of the complaint to the motion if it's not too long. Whether or not you have to state to the court that they may or must take judicial notice of the complaint will depend on the procedural rules for your state and the local rules for the court.

If you're presenting this case without the assistance of counsel, you can use the opposing side's motions as a guide. If the opposing party files a 12b motion, they will need to make significant reference to your complaint. Check and see if they attached the complaint as an exhibit or made any additional statement about taking judicial notice of the complaint. If opposing counsel's motion was accepted without additional exhibits, then it's highly unlikely that the court will reject your opposition for failure to attach appropriate exhibits or failure to make declarations.

Slope,
It was a 12b(6) motion: failure to state a claim upon which relief can be granted. As a declaration, the defendants attached a copy of my verified 60+ page amended complaint along with about 20 other exhibits referred to in the complaint. Both the defendants' brief and my drafted (but not yet filed) opposing brief refer repeatedly to specific numbered paragraphs in the complaint, but neither refers to taking "judicial notice". I thought judicial notice is just to get the court at trial to accept as fact things that are commonly known (without requirement of proof) - e.g. Washington D.C. is the capital of the U.S.

 

[tranquility]

I'm not going through the other threads and you really need to keep all info in the same one. It all matters. I don't know why you filed a verified complaint. Unless required, it is poor practice. With a failure to state a claim motion, you may have written yourself into a corner. Usually, differing and contrasting theories may be pled. Not so with a verified complaint. For a 12(b)(6) motion on a 60 page complaint, either you were so deficient in your elements so as to be embarrassed and you should just drop it right now so you waste no more time and effort on it, or, you made conflicting claims and you might better explore amending your complaint than arguing the motion.

 

[Paul84]

I'm not going through the other threads and you really need to keep all info in the same one. It all matters. I don't know why you filed a verified complaint. Unless required, it is poor practice. With a failure to state a claim motion, you may have written yourself into a corner. Usually, differing and contrasting theories may be pled. Not so with a verified complaint. For a 12(b)(6) motion on a 60 page complaint, either you were so deficient in your elements so as to be embarrassed and you should just drop it right now so you waste no more time and effort on it, or, you made conflicting claims and you might better explore amending your complaint than arguing the motion.

And why exactly is it "poor practice"? I consider it the equivalent of my deposition but done on my terms as the principal witness for my case - done while my memory is still fresh on all the facts. You seem to imply there can be multiple versions to the truth, that adhering to it somehow "writes oneself into a corner"? The complaint pleads facts; a brief pleads theories of law, so what exactly are you saying?

 

[tranquility]

And why exactly is it "poor practice"? I consider it the equivalent of my deposition but done on my terms as the principal witness for my case - done while my memory is still fresh on all the facts. You seem to imply there can be multiple versions to the truth, that adhering to it somehow "writes oneself into a corner"? The complaint pleads facts; a brief pleads theories of law, so what exactly are you saying?

It is a poor practice as it allows the other side to impeach your purported testimony. I am informed and believe is one thing and, if you happen to be wrong, your case does not fall in the toilet. Here, if wrong, flush. What you consider a "fact" may not actually be so. Since I have no idea what your purported case is, I can't really give of how alternate theories of your case would help. But an example of how alternate theories would work, with the same facts, one might be able to claim in both a contract theory of the case and a quantum meruit theory. You are informed and believe there is a contract, but if the court finds there was not, you should be compensated for the value of your services. In a verified complaint, you are swearing there was a contract.

While a complaint states facts, they must provide defendant a fair notice of the claim. When the complaint is 60+ pages, without clear statements on the legal theories you want relief from, it is not going to be a short and plain statement of the claim showing that the pleader is entitled to relief. On long complaints, people who actually do this as their job, might make an outline and fill it in. Something like:
I. Introduction (Where the plaintiff gives an extremely short set of statements of the whole thing to follow to help the reader understand what the writer has been prevaricating over and lived.)
II. Jurisdiction (Plaintiff gives numbered facts for his claim of federal jurisdiction.)
III. Venue (Plaintiff gives numbered facts for his claim of where the case will be heard.)
IV. Parties (Plaintiff gives numbered facts for who he believes the players are.)
V. Facts (Plaintiff gives numbered facts for his claim.)
VI, VII, VIII.... First, Second, Third and so on Cause(s) of Action (Plaintiff gives an incorporation by reference the previous facts as part of this legal theory and then adds other relevant facts for the cause of action.)
X. Prayer for Relief (Plaintiff gives numbered things he seeks from the court for his grievous harm. )

Now, is that required by law? No. Maybe some local rules, but not in the FCRP. But, I gua-ran-tee, those who do that don't fear a 12(B)(6) motion either.

But, you do things your way. Maybe you'll win in spite of yourself.

 

[Paul84]

It is a poor practice as it allows the other side to impeach your purported testimony. I am informed and believe is one thing and, if you happen to be wrong, your case does not fall in the toilet. Here, if wrong, flush. What you consider a "fact" may not actually be so. Since I have no idea what your purported case is, I can't really give of how alternate theories of your case would help. But an example of how alternate theories would work, with the same facts, one might be able to claim in both a contract theory of the case and a quantum meruit theory. You are informed and believe there is a contract, but if the court finds there was not, you should be compensated for the value of your services. In a verified complaint, you are swearing there was a contract.

While a complaint states facts, they must provide defendant a fair notice of the claim. When the complaint is 60+ pages, without clear statements on the legal theories you want relief from, it is not going to be a short and plain statement of the claim showing that the pleader is entitled to relief. On long complaints, people who actually do this as their job, might make an outline and fill it in. Something like:
I. Introduction (Where the plaintiff gives an extremely short set of statements of the whole thing to follow to help the reader understand what the writer has been prevaricating over and lived.)
II. Jurisdiction (Plaintiff gives numbered facts for his claim of federal jurisdiction.)
III. Venue (Plaintiff gives numbered facts for his claim of where the case will be heard.)
IV. Parties (Plaintiff gives numbered facts for who he believes the players are.)
V. Facts (Plaintiff gives numbered facts for his claim.)
VI, VII, VIII.... First, Second, Third and so on Cause(s) of Action (Plaintiff gives an incorporation by reference the previous facts as part of this legal theory and then adds other relevant facts for the cause of action.)
X. Prayer for Relief (Plaintiff gives numbered things he seeks from the court for his grievous harm. )

Now, is that required by law? No. Maybe some local rules, but not in the FCRP. But, I gua-ran-tee, those who do that don't fear a 12(B)(6) motion either.

But, you do things your way. Maybe you'll win in spite of yourself.

So you actually think they would not do a lengthy deposition of me as the opposing side's main witness, which they could then use to impeach my testimony with much more ease and no constraints on their part? A detailed, verified complaint should serve as a comprehensive outline not only for my opening and closing statements but also for any cross examination of their witnesses. I'm not planning to spend thousands of dollars doing depositions. Such a complaint also forces them to provide a verified answer and "tell the truth" by which I can also impeach their testimony, unlike a brief where they can spin lies any way they like and later claim, "Well, we hadn't verified it" and "No, our 'mistaken characterizations' in the brief in describing the 'facts' did not constitute perjury."

Also, my verified complaint followed the boilerplate outline you describe and adduced what I believe to be sufficient facts for each cause of action's elements that I need to prove. By the way, have you ever argued any complex litigations in court and won for your clients?

 

[tranquility]

So you actually think they would not do a lengthy deposition of me as the opposing side's main witness, which they could then use to impeach my testimony with much more ease and no constraints on their part?

Dude, from the way you seem to be talking here, they are not going to even think about discovery. This is going to die with the success of the motion. But, if you actually get past this point and they are worried about it at all, they will still depose you. I have no idea what you think I said for you to make this claim.

A detailed, verified complaint should serve as a comprehensive outline not only for my opening and closing statements but also for any cross examination of their witnesses.

I bet you will not get to trial. Most cases finish on a motion after discovery if not finished earlier. I am uncertain as to the comprehensive outline theory of litigation, but, I'm pretty sure you have no idea what you're doing.

I'm not planning to spend thousands of dollars doing depositions.

Um..super. Most successful litigators know what the witness will say before he says it. But, maybe your theory is better.

Such a complaint also forces them to provide a verified answer and "tell the truth" by which I can also impeach their testimony, unlike a brief where they can spin lies any way they like and later claim, "Well, we hadn't verified it" and "No, our 'mistaken characterizations' in the brief in describing the 'facts' did not constitute perjury."

Um...no. What gave you the idea they must verify their answer? Even in the few cases where the complaint must be verified, there is no federal requirement to verify the answer. Not that they even feel they need an answer yet.

Also, my verified complaint followed the boilerplate outline you describe and adduced what I believe to be sufficient facts for each cause of action's elements that I need to prove. By the way, have you ever argued any complex litigations in court and won for your clients?

Apparently the defendant does not believe you have made a short and plain statement of the claim.

 

[Paul84]

I'm having a hard time following exactly what you're asking about.

In either case, I believe a court can normally take judicial notice of a complaint, so you don't have to declare anything a second time. You might want to attach a copy of the complaint to the motion if it's not too long. Whether or not you have to state to the court that they may or must take judicial notice of the complaint will depend on the procedural rules for your state and the local rules for the court.

I believe that a verified complaint requires judicial cognizance, not just judicial notice*. If you or anyone else knows otherwise, I'd appreciate your citing a relevant case that I can look up under Google Scholar.

* "Judicial Notice is discretionary.
With Judicial Cognizance, the judge is BOUND to act:
See Black's Law, 6th Ed, pg 847




Judicial cognizance. Judicial notice or knowledge upon which a judge is 
bound to act without having it proved in evidence.



Judicial notice. (pg. 849) The act by which a court, in conducting a trial,
or framing its decision, will, of its own motion or on request of a party,
and without the production of evidence, recognize the existence and truth of
 certain facts, having a bearing on the controversy at bar"
Source: http://www.leitgebindustries.com/prose_caselaw.htm

 

[Sloop John D]

Normally in a 12b6 motion, the court assumes the facts stated in the complaint are true for purposes of that motion only. There's no need to attach exhibits to prove their accuracy.

I'm not sure if that changes when a verified complaint is filed, but Tranquility may be able to shed some more light on that issue.

In the motion, has the opposing party challenged any of your facts as being false? Or are they merely asserting that the facts which you did allege do not create legal liability?