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

[Paul84]

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?

The opposing party has not challenged any of my complaint's facts as false but merely assert that they do not create legal liability.

 

[tranquility]

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

I think the better term for the facts in a verified complaint would be "judicial admissions". Judicial admissions consist of statements or conduct by a party to a proceeding, or that party's attorney, that are legally binding on the party making the admission. For one set of possible effects, see https://bulk.resource.org/courts.gov/c/F2/861/861.F2d.224.87-2456.html

That the complaint was verified does not help the plaintiff in federal court. That some causes of action require it is not a benefit, but a penalty.

For both a 12(b)(6) or 12(c) [Jjudgment on the pleadings.] motion, all the facts alleged will be considered to be true. (Truth is determined by trial. One reason why the defendant is not admitting or denying anything yet.)

Come on Paul84, while I understand this better than you, it really didn't take more than a moment to find the case on Google. Are you sure you have a chance? The more you write, the less that chance seems.

 

[Sloop John D]

The opposing party has not challenged any of my complaint's facts as false but merely assert that they do not create legal liability.

If that's the case then it is highly unlikely that you would need to attach any of the exhibits that you specified in your original post. However, that may not be the case once discovery begins, if you even reach that point.

The fact that the Defendant attached exhibits also has me wondering... Is this a pro se defendant?

 

[Paul84]

judicial admissions; average time for rulings on FRCP 12(b)(6) motions in civil cases

I think the better term for the facts in a verified complaint would be "judicial admissions". Judicial admissions consist of statements or conduct by a party to a proceeding, or that party's attorney, that are legally binding on the party making the admission. For one set of possible effects, see https://bulk.resource.org/courts.gov/c/F2/861/861.F2d.224.87-2456.html

That the complaint was verified does not help the plaintiff in federal court. That some causes of action require it is not a benefit, but a penalty.

For both a 12(b)(6) or 12(c) [Jjudgment on the pleadings.] motion, all the facts alleged will be considered to be true. (Truth is determined by trial. One reason why the defendant is not admitting or denying anything yet.)

Come on Paul84, while I understand this better than you, it really didn't take more than a moment to find the case on Google. Are you sure you have a chance? The more you write, the less that chance seems.

Tranquility,
Thanks for the explanation of judicial admission, which was a new concept for me. One reason why I'm glad to have made a verified complaint is that the facts stem largely from electronically stored info that I have checked, but which might be difficult to find in the (long-term) future. For instance, I've seen examples of civil cases taking a whole year just to resolve an FRCP 12b6 motion, with discovery beginning only after that. From your experience, do you have a sense of average time for rulings on such motions, particularly in complex civil cases?

Sloop,
The other party is not pro se.

 

[tranquility]

Tranquility,
Thanks for the explanation of judicial admission, which was a new concept for me. One reason why I'm glad to have made a verified complaint is that the facts stem largely from electronically stored info that I have checked, but which might be difficult to find in the (long-term) future. For instance, I've seen examples of civil cases taking a whole year just to resolve an FRCP 12b6 motion, with discovery beginning only after that. From your experience, do you have a sense of average time for rulings on such motions, particularly in complex civil cases?

Sloop,
The other party is not pro se.

Why are you calling this a "complex civil case"? Usually, that is reserved for class actions (which you cannot do pro se), mass torts, multiple jurisdiction or difficult expert witness requirements. Which are you? Multiple jurisdiction? If you can't find some of the things you swore too in the future, you are not going to be helped by the verified complaint, but hurt. Motions take as long as they take. Since there seems no rush here (at least as far as I know), it might take months. Years is unlikely as far as I know. Judges have a requirement to clean up the docket at least once a year. That does not mean they can't leave things on it, but it means they must review things. I suspect they get a talking too by the senior judge if they leave a bunch of little things sitting there year after year.

 

[Sloop John D]

From your experience, do you have a sense of average time for rulings on such motions, particularly in complex civil cases?.

A motion to dismiss will usually take somewhere between 1 to 3 months, depending on various factors. Normally the party that files the motion also requests a hearing date, which will be provided to you after it is confirmed. However, it's common to ask the court for leave to amend the complaint in the event that the motion to dismiss is granted. In that case, you will be able to refile the complaint, and it is likely it will be challenged once again with another motion to dismiss. If you end up running through four or five amended complaints, the process can take up to a year.

If you want to get the ball rolling quickly, the best thing you can do is file a clean complaint.

Have you spoken with an attorney yet? An attorney will be very helpful for getting your case in the door. You're also currently running the risk that you're case will get dropped altogether before your complaint is even accepted. If the motion to dismiss is granted without leave to amend, you're done.

 

[Paul84]

A motion to dismiss will usually take somewhere between 1 to 3 months, depending on various factors. Normally the party that files the motion also requests a hearing date, which will be provided to you after it is confirmed. However, it's common to ask the court for leave to amend the complaint in the event that the motion to dismiss is granted. In that case, you will be able to refile the complaint, and it is likely it will be challenged once again with another motion to dismiss. If you end up running through four or five amended complaints, the process can take up to a year.

If you want to get the ball rolling quickly, the best thing you can do is file a clean complaint.

Have you spoken with an attorney yet? An attorney will be very helpful for getting your case in the door. You're also currently running the risk that you're case will get dropped altogether before your complaint is even accepted. If the motion to dismiss is granted without leave to amend, you're done.

Tranquility,
I believe the court designated it as complex (although I'm not 100% certain of that). It's with a magistrate but the senior judge assigned, according to what I've read online, is considered one of the most knowledgeable in the court. (Am not sure whether assignments are random). One of the claims lends itself easily to class action, but I'm not going that route for the reason you mentioned. I suppose I could always bring in an outside lawyer to handle that claim but don't see the benefit to me, at least. Jurisdiction is one issue for one of the claims, but there are few, and only recent, case precedents. However, I think my brief has made a good argument for allowing it.

Sloop,
Thanks for the info. I have not discussed this case with any lawyers but have done extensive research on the legal issues. The other party did not request a hearing date. I assume it's in their interest to drag this out as long as possible. I also live overseas so any hearing would be by phone - or is skype a possibility these days? Am not sure how wired federal courts are now.

 

[tranquility]

Tranquility,
I believe the court designated it as complex (although I'm not 100% certain of that). It's with a magistrate but the senior judge assigned, according to what I've read online, is considered one of the most knowledgeable in the court. (Am not sure whether assignments are random). One of the claims lends itself easily to class action, but I'm not going that route for the reason you mentioned. I suppose I could always bring in an outside lawyer to handle that claim but don't see the benefit to me, at least. Jurisdiction is one issue for one of the claims, but there are few, and only recent, case precedents. However, I think my brief has made a good argument for allowing it.

Sloop,
Thanks for the info. I have not discussed this case with any lawyers but have done extensive research on the legal issues. The other party did not request a hearing date. I assume it's in their interest to drag this out as long as possible. I also live overseas so any hearing would be by phone - or is skype a possibility these days? Am not sure how wired federal courts are now.

I have no idea of your claim or issue. But, I'm done. Good luck. You need it. If you believe in your case, buy lottery tickets. Your chances are better.

 

[Paul84]

Answer to a verified complaint = response to request to admit?

I think the better term for the facts in a verified complaint would be "judicial admissions". Judicial admissions consist of statements or conduct by a party to a proceeding, or that party's attorney, that are legally binding on the party making the admission. For one set of possible effects, see https://bulk.resource.org/courts.gov/c/F2/861/861.F2d.224.87-2456.html

That the complaint was verified does not help the plaintiff in federal court. That some causes of action require it is not a benefit, but a penalty.

For both a 12(b)(6) or 12(c) [Jjudgment on the pleadings.] motion, all the facts alleged will be considered to be true. (Truth is determined by trial. One reason why the defendant is not admitting or denying anything yet.)

Come on Paul84, while I understand this better than you, it really didn't take more than a moment to find the case on Google. Are you sure you have a chance? The more you write, the less that chance seems.

I recently read in Mauet's Pretrial (2012), p316, about some advantages of serving requests to admit early rather than at the end of discovery: potential FRCP 37 sanctions if other party fails to respond in time, recouping court costs etc in proving a denied fact, focusing discovery. Would defendants' answer to a verified complaint be the functional equivalent to their response to a request to admit? In other words, if you have a strong case, could you consider a detailed and verified complaint as a very early request to admit?

 

[You Are Guilty]

While I admire your tenacity, you have to pay attention to the details.

(2) Failure to Admit. If a party fails to admit [highlight]what is requested under Rule 36 [/highlight] and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:...