Chapter 3 | Basic Procedures for Filing a Lawsuit
Pro Se Handbook
Federal Bar Association
3.00 | PREPARING THE COMPLAINT
The first step in filing a lawsuit is to prepare a complaint. Most district courts have forms for preparing a complaint, including a general form for pro se cases, and specific forms for prisoner pro se cases, employment discrimination cases, and Social Security disability appeals. These forms are usually available on each District Court’s website under the “Forms” tab on the homepage. If you choose to prepare your own complaint, the following information should be included.
Footnotes
3.01 | COMPLAINT SECTION 1: CAPTION
| IN THE UNITED STATES DISTRICT COURT FOR THE ____________ DISTRICT OF [STATE] | |
|---|---|
| [Plaintiff’s Name: 123 Street Name City, State Zip Code], Plaintiff, v. [Defendant #1’s Name: 456 Street Name City, State Zip Code]: [Defendant #2’s Name (If applicable): 789 Street Name City, State Zip Code], Defendants. | Case No.____________ |
| COMPLAINT | |
In certain kinds of cases, the parties are entitled to a jury trial. The best way to ensure your right to a jury trial is to make the demand when you file your complaint by either writing the words “Jury Trial Demanded” on the first page of your complaint or, if you are using a form complaint available from the Clerk’s Office, by checking the option for a jury trial on the first page of the form complaint.
Footnotes
3.02 | COMPLAIN SECTION 2: BODY OF THE COMPLAINT
a. Jurisdiction.
b. Numbered paragraphs.
(ii) the date on which the misconduct occurred;
(iii) the names of each and every individual who participated in that misconduct;
(iv) the location where the alleged misconduct occurred; and
(v) the connection between the misconduct and your causes of action.
c. Legal basis.
d. Relief sought.
e. Signature.
Footnotes
3.03 | PRIVACY PROTECTION
• Social Security and taxpayer-identification numbers must be redacted except for the last four digits (e.g., xxx-xx-1234); and
• dates of birth must include the year only (e.g., X/X/1980).
3.04 | FILING THE COMPLAINT
1. Copies
2. Filing Fees6
3. Civil Cover Sheet
When you complete the form, you will need to include the county of residence of the first listed Plaintiff and Defendant. You will also need to identify the basis of jurisdiction. Federal question jurisdiction (the case involves a violation of federal law or the United States Constitution) and diversity jurisdiction (the plaintiff and defendant are citizens of different states and the case involves an amount of controversy greater than $75,000) are the two most common.
Complete the form as best as you can. If you do not know how to provide some of the information required, then leave the space for that information blank. Note that the Civil Cover Sheet contains instructions for completing the form on the second page. The District Court’s website will also provide the “Nature of Suit” codes to assist you in completing Section IV.
4. Summons
(2) provide the name and address where the defendant is to be served with the complaint; and
3) provide your name and address. Do NOT complete the Proof of Service portion of the summons form until service of process has been completed.
5. Filing
Footnotes
7 You should check the District Court’s website for further information concerning whether you can pay by cash, check, cashier’s check, money order, or credit card.
3.05 | SERVICE OF PROCESS
1. Waiver of Service8
b. “Waiver of Service of Summons.”
The documents you need to send to each named defendant are:
b. One completed Notice of Lawsuit Form;
c. Two completed Waiver Forms; and
d. One self-addressed stamped envelope (for the defendant’s return of the Waiver Forms).
2. Formal service (no waiver)
3. Personal service
2) is not a plaintiff or defendant in the case.
If the above service methods are not available, consult Federal Rule of Civil Procedure 4 and any Local Rule applicable for your District Court.
If you name as a defendant the United States, a United States agency, or an officer or employee of the United States (who is being sued for acts or omissions related to his/her employment), you must serve the complaint and summons on three individuals:
2. the Attorney General of the United States in Washington, D.C.; and
3. the United States Attorney for the District Court in which you are filing your complaint.
Footnotes
9 The only exception to this rule is if you are incarcerated AND are suing a government official. In that case, you should wait for the judge to complete a preliminary review, after which you will receive an order from the Court and should follow the instructions in that order regarding service.
3.06 | PROCEEDING IN FORMA PAUPERIS (“IFP”)
2. Civil Cover Sheet;
3. Original complaint with copies for service on each of the defendants;
4. All service forms, which includes the summons and USM 285 or Waiver of Service of Summons (see below).
(2) to have your complaint served on the defendant by the U.S. Marshals Service.
However, if after conducting a preliminary review of the complaint, the judge finds that the complaint states a claim upon which relief may be granted, the judge will then order that a summons form be issued against the defendant. The judge will also appoint the Clerk of Court or the United States Marshals Office to make service. In all instances, however, you are responsible for completing and providing the Clerk’s Office with the appropriate service forms. This consists of the following service documents for each named Defendant:
2. One summons form for each Defendant;
3. One U.S. Marshal Form for each Defendant.10
Footnotes
3.07 | DEFENDANT’S RESPONSE TO THE COMPLAINT
1. Answer
2. Default
If a defendant is in default, the plaintiff should file a “request for Clerk’s entry of default” AND proof that the defendant has been served with the complaint. If the Clerk of Court approves the request, he or she will then enter default against the defendant. Once the Clerk has entered default against the defendant, the plaintiff may then file a “Motion for Default Judgment” supported by:
(2) a declaration proving the amount of damages claimed in the complaint against the defendant.
A defendant against whom default or a default judgment has been entered may make a motion to set aside the default or default judgment. The Court will set aside an entry of default or a default judgment for good cause or for one of the reasons listed in Rule 60(b), which includes mistake, fraud, newly-discovered evidence, the judgment is void, or “any other reason that justifies relief.”
3. Motion to Dismiss
lack of personal jurisdiction;
improper venue;
insufficient process;
insufficient service of process;
failure to state a claim upon which relief can be granted; and
failure to join a party under Rule 19.
A court may deny or grant the motion to dismiss as to each claim that is the subject of the motion. If the Court denies the motion to dismiss, the defendant must file an answer within fourteen (14) days, and the case moves to the next phase. See Federal Rule of Civil Procedure 12(a)(4). If the Court grants the motion to dismiss without prejudice, the plaintiff may submit an amended complaint that corrects the deficiencies identified by the Court within a time period specified by the Court. Finally, if the Court grants the motion to dismiss with prejudice, the case is over as to those claims.
a. Lack of Subject Matter Jurisdiction
b. Lack of Personal Jurisdiction
c. Improper Venue
d. Insufficiency of Service of Process
e. Failure to State a Claim Upon Which Relief can be Granted
f. Failure to Join an Indispensable Party Under Rule 19
(2) the party’s absence impedes its ability to protect its interest or leaves the party vulnerable to incurring inconsistent obligations because of the interest.
3.08 | RESPONSE TO A MOTION TO DISMISS
To calculate the deadline, exclude the day that the defendant files the response, and beginning counting the next day. Count every day, including weekends and holidays. The response is due on the fourteenth (or seventeenth, if mailed) day, unless that day is a Saturday, Sunday, or legal holiday, in which case the response is due on the next day that is not a Saturday, Sunday, or legal holiday. See Federal Rule of Civil Procedure 6.
If you need more time to file your opposition, you need to file a motion for extension of time with the Court. If you can, contact the opposing side and get consent. If you get consent for an extension, make sure that consent is reflected in your motion.
If you cannot get the consent from the other time, file the motion for extension of time before the response is due and show there is “good cause” for the extension. See Federal Rule of Civil Procedure 6(b). If a motion for extension of time is filed after the due date, you must show “excusable neglect” for missing the deadline. Federal Rule of Civil Procedure 6(b).
You might need to reference it during your pursuit of justice.
For instance, you might need to examine one of these passages in order to protect yourself from organizations/judges/lawyers who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
