Surviving a Motion to Dismiss: Submission of “Illustrative Materials” In Federal Court
If you want to show examples of what you are alleging and can prove at trial (after discovery) the recent rules and decisions of the federal courts may help, if you are careful.
Submission of illustrative materials is most probably advisable in federal practice. It might be allowed in state courts as well. The submission is used after complaint is filed and before hearing the motion to dismiss or motion for judgment on the pleadings.
On the other end of the stick, affirmative defenses or counterclaims may also be supplemented by illustrative materials as long as they are relevant and congruent with the facts alleged in the pleadings — complaint, affirmative defenses and/or counterclaims. The filing should not change anything, but rather elaborate on what the homeowner has already alleged and seeks to prove in court. It’s not an invitation to throw the kitchen sink at the judge.
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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER. THIS ARTICLE RELIES HEAVILY ON SUPREME COURT AND 7TH CIRCUIT DECISIONS. SCOTUS DECISIONS ARE THE LAW OF THE LAND. 7TH CIRCUIT DECISIONS ARE ONLY BINDING IN THAT CIRCUIT. TRIAL COURT DECISIONS CAN ONLY BE — USED AS PERSUASIVE AUTHORITY.
BOTTOM LINE: If a homeowner files a complaint (or affirmative defense) for relief, it must contain factual allegations that specifically address the cause of action (fraud, negligence, RICO etc). It is NOT enough in Federal court to allege facts that might result in a verdict. The old doctrines allowing the possibility of a case of action that might result in relief ordered by the court do not apply in Federal Court and are less likely to be used in state court proceedings. “Might” is not right.
The pleading in federal courts must be plausible rising to the level of something like probable cause. There must be careful pleading, matching actual facts with the legal theory alleged in the complaint. And, after you file your pleading, you can add supplemental material to illustrate (not add) the context or events that you allege in the complaint, the affirmative defense or the counterclaim. As stated below, the pleading itself must “nudge” past conceivable to plausible. While this may prove challenging in pleading fraud (before opening discovery) there is the possibility of submitting illustrative materials to flesh out what could not be directly alleged in the complaint.
It can be difficult for the plaintiff to have access to the facts needed to plead a plausible claim before the doors of discovery are unlocked. So the courts have recognized that in cases alleging fraud, the action will survive motions as long as the allegations are not vague and are sufficient to inform the defendant exactly what the fraud entailed. See 7th Circuit United States ex rel Lusby Rolls Royce Corp. 570 F. 3d 849 (2009).
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