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Drafting Causes of Action

Livinglies.wordpress.com| March 3, 2017

By Neil Garfield

There usually specific state or local forms like a “Civil Cover Sheet” and potentially other forms, including a summons to be issued for service of process. Consultation with an attorney is strongly advised.

The Florida Rules of Civil procedure contain sample pleadings for certain types of actions but not all causes of action. Most states have the same thing. The structure of any cause of action is as follows:

1. Why the court has jurisdiction over the parties

2. Why the court has jurisdiction over the matter in controversy

3. What is the name of the cause of action (e.g. negligence)

4. What is the duty that Plaintiff alleges that defendant had.

5. Defendant breached that duty by ….

6. As a direct and proximate cause of the breach of the aforesaid duty by Defendant, Plaintiff suffered [financial, emotional, physical] damages in excess of minimum jurisdictional amount in controversy for court to hear it]

7. Wherefore, Plaintiff prays that this Honorable Court will enter Judgment for the Plaintiff in an amount in excess of [jurisdictional amount] and grant such other and further relief that the Court may deem just and proper, plus attorney fees, costs of this action and

8. Plaintiff demands trial by jury on all issues triable as of right by jury. [It is typical to place in all capital letters on the first page of the pleading “JURY TRIAL DEMANDED”]

If the action is to get the court to enter an order to do or stop doing something, that is called equitable relief.

1. Why the court has jurisdiction over the parties

2. Why the court has jurisdiction over the matter in controversy

3. What is the name of the cause of action (e.g. injunction)

4. What is the duty that Plaintiff alleges that defendant had.

5. Defendant breached that duty by ….

6. As a direct and proximate cause of the breach of the aforesaid duty by Defendant, Plaintiff suffered [financial, emotional, physical] damages in excess of [minimum jurisdictional amount in controversy for court to hear it], which are continuing [and possibly escalating]

7. Wherefore, Plaintiff prays that this Honorable Court will enter Judgment for the Plaintiff in which the Defendant is enjoined from [describe the activity] and grant such other and further relief that the Court may deem just and proper, plus attorney fees, costs of this action

8. No jury trial is typical for equitable claims although you can ask for it.

If the action is for an intentional tort (e.g. fraud)

1. Why the court has jurisdiction over the parties

2. Why the court has jurisdiction over the matter in controversy

3. What is the name of the cause of action (e.g. fraudulent misrepresentation, negligent misrepresentation must be stated separately as a different cause fo action)

4. What is the duty that Plaintiff alleges that defendant had.

5. Defendant breached that duty by ….

6. Defendant’s breach was intentional and/or grossly negligent in that Defendant knew or must have known that its actions would damage the Plaintiff

7. [OPTIONAL] Defendant’s action were motivated by its intention to conceal its activities under the umbrella of a larger fraud, to wit: [describe the umbrella]

8. Defendant’s actions were undertaken with actual malice or with reckless indifference to the consequences to its illegal and wrongful actions

9. As a direct and proximate cause of the breach of the aforesaid duty by Defendant, Plaintiff suffered [financial, emotional, physical] damages in excess of [minimum jurisdictional amount in controversy for court to hear it]

10. Defendants actions were reprehensible as well as illegal and ongoing in nature such that Defendant should be required to pay punitive, exemplary or treble damages [if there is a statute providing for treble damages]

11. Wherefore, Plaintiff prays that this Honorable Court will enter Judgment for the Plaintiff in an amount in excess of [jurisdictional amount], plus punitive or exemplary damages and grant such other and further relief that the Court may deem just and proper, plus attorney fees, costs of this action and

12. Plaintiff demands trial by jury on all issues triable as of right by jury. [It is typical to place in all capital letters on the first page of the pleading “JURY TRIAL DEMANDED”]

 

 

 

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CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

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