Checklist · Litigation

Drafting a Complaint, Answering It, and Moving to Dismiss: A Practical Checklist

9 U.S.C. § 2

Type
Checklist
Jurisdiction
National
Date
2023-11-26
Topic
Litigation

This checklist walks a civil case through its pleading stage from both sides of the caption. Part 1 covers pre-filing investigation and the decisions that must be made before a word is drafted. Parts 2 through 5 build the complaint element by element, then test it against the attacks it will face. Parts 6 through 9 turn to the defense: calendaring the response, choosing between a motion and an answer, drafting an answer that preserves everything, and handling counterclaims and third parties. The final parts cover amendment, default, sanctions exposure, and the handoff to discovery. Items are stated as actions, and the doctrine behind each is explained in the companion guide.

Drafting a Complaint, Answering It, and Moving to Dismiss: A Practical Checklist

Litigation > Pleadings and Motion Practice | Published 26 November 2023 - Updated 26 July 2025 | UpLaw - uplaw.us

How to Use This Checklist

Plaintiffs work Parts 1 through 5. Defendants start at Part 6 and calendar the deadline before reading anything else. Both sides should read Part 10 on sanctions and Part 12 before the first scheduling conference. Doctrine sits in the comprehensive guide; the orientation piece is how a complaint wins or loses; the forms are in the toolkit.

⚠️ Before anything else. If you have been served, find the date of service and count forward 21 days under Rule 12(a). Put that date in two calendars today. Nearly every catastrophic pleading-stage loss begins with a missed response deadline and a default under Rule 55.

Part 1 — Before You Draft

☐ Identify every legal theory the facts could support. Contract, tort, statutory, equitable, and quasi-contractual. Discard later; do not narrow now.

☐ Confirm the limitations period for each theory. Different claims arising from one event routinely carry different periods. Work the limitations checklist before filing, not after.

☐ Determine whether any claim requires pre-suit steps. Administrative exhaustion, a notice of claim to a government entity, a demand letter, a certificate of merit, a cure period in the contract, or a mandatory mediation clause.

☐ Check for an arbitration agreement. Review every contract, employment document, and terms of service. An enforceable clause under 9 U.S.C. § 2 may make the entire filing pointless.

☐ Confirm the client's standing. Identify the concrete injury, trace it to the defendant, and confirm the requested relief would redress it. In statutory cases, name the real-world consequence.

☐ Verify the correct legal name of every defendant. Pull the secretary of state registration. Suing a trade name or a dissolved entity wastes months.

☐ Trace citizenship if you intend to rely on diversity. For LLCs and partnerships, trace every member through every layer.

☐ Preserve evidence and issue a litigation hold. The duty attaches when litigation is reasonably anticipated, which is before filing. See the litigation hold checklist.

☐ Decide the forum deliberately. Federal or state, and which district. Consult the forum selection checklist.

☐ Assess the defendant's ability to pay. A judgment against an empty entity is an expensive piece of paper.

☐ Confirm insurance. A defendant with coverage has a funded defense and a funded settlement.

☐ Budget the case through the pleading stage and share the number with the client in writing.

Part 2 — Building the Complaint

☐ Draft the caption naming every party as required by Rule 10(a).

☐ Write a two- to four-paragraph introduction stating what happened, who did it, and what you want. Test it on someone who knows nothing about the case.

☐ Plead each party in a single paragraph, stating citizenship for diversity purposes rather than residence.

☐ Plead jurisdiction with statutory citation — 28 U.S.C. § 1331, § 1332, or § 1367 — and state the amount in controversy with a basis.

☐ Plead venue under 28 U.S.C. § 1391 and identify the events occurring in the district.

☐ Add a personal jurisdiction paragraph tying each defendant's conduct to the forum.

☐ Write the facts chronologically, pausing to cluster support where an element needs it.

☐ Keep one assertion per numbered paragraph.

☐ Use thematic headings inside the fact section.

☐ Quote operative language rather than characterizing it.

☐ Attach only exhibits you want treated as part of the pleading under Rule 10(c).

☐ State each count separately and incorporate only the paragraphs that count needs.

☐ Walk the elements inside each count, with a cluster of allegations for each.

☐ Plead alternative and inconsistent theories as Rule 8(d) permits.

☐ Satisfy Rule 9(b) for every claim sounding in fraud — speaker, statement, date, medium, audience, falsity, and why it was false when made.

☐ Plead special damages specifically where required by Rule 9(g).

☐ Plead tolling, the discovery rule, or concealment affirmatively if there is any timeliness question.

☐ Draft the prayer to match available relief. Drop punitive damages from contract counts. Plead the fee basis if you want fees.

☐ Include the jury demand under Rule 38.

☐ Add a civil cover sheet and any required corporate disclosure under Rule 7.1.

Part 3 — Stress-Testing Before Filing

☐ Build the element map. One row per element per count; one cell listing the supporting paragraph numbers. Fill every cell.

☐ Cross out every conclusion — willfully, maliciously, defectively, unreasonably — and read what remains. That is your complaint under Iqbal.

☐ Read the complaint as the defendant. Which paragraph would you move to dismiss, and what is your answer?

☐ Check whether you have pleaded yourself into a limitations bar by including dates you did not need.

☐ Confirm no count incorporates all prior paragraphs reflexively.

☐ Confirm each defendant can identify its own alleged conduct.

☐ Verify every statutory citation and every case citation in an actual database. Fabricated authority is a Rule 11 violation regardless of how it got there.

☐ Confirm the complaint is signed by an attorney of record or the party.

☐ Have someone unfamiliar with the matter read it and summarize the case in three sentences.

Part 4 — Filing and Service

☐ File and obtain the summons from the clerk. The court issues it; you serve it.

☐ Calendar the Rule 4(m) deadline — 90 days from filing — the day you file.

☐ Send waiver requests under Rule 4(d) where the defendant is domestic and cooperative. Refusal without good cause shifts the cost of service; acceptance buys the defendant 60 days.

☐ Serve entities under Rule 4(h) on an officer, managing agent, general agent, or agent authorized by law, or by the method permitted by the state where service is made.

☐ Serve the United States under Rule 4(i) — the United States Attorney for the district and a mailing to the Attorney General and, where an agency or officer is named, that agency or officer. All three.

☐ Serve foreign defendants under Rule 4(f) and confirm whether the destination country is a party to the Hague Service Convention and whether it has objected to postal service. See the cross-border checklist.

☐ File proof of service promptly and keep the process server's affidavit, the tracking record, and any signed receipt for the life of the case.

☐ Diary the answer deadline for each defendant separately. Service dates differ.

Part 5 — When the Defendant Moves to Dismiss

☐ Read the motion for the roadmap it is. Every argument identifies a paragraph you can strengthen.

☐ Decide within days whether to amend as of right. Rule 15(a)(1)(B) gives 21 days after service of the motion. Amending moots the motion and costs nothing.

☐ If you oppose, answer the strongest argument first and cite paragraph numbers, not conclusions.

☐ Cite Erickson and Swierkiewicz where the movant demands evidentiary detail at the pleading stage.

☐ Distinguish material properly considered from material improperly attached. If the movant relies on outside evidence, invoke Rule 12(d) and ask for conversion with discovery, or ask that the material be disregarded.

☐ Request leave to amend in the alternative and attach the proposed amended pleading.

☐ Check the local rules for page limits, response deadlines, and whether a hearing must be requested.

Part 6 — You Have Been Served

☐ Record the exact date, time, manner, and recipient of service.

☐ Calendar the response deadline and a working deadline one week earlier.

☐ Determine whether service was proper. Improper service is a defense under Rule 12(b)(5) — and it is waived if not raised in your first Rule 12 motion.

☐ Notify every insurer immediately and tender the defense. Late notice is a coverage defense. Work the tender checklist.

☐ Issue a litigation hold the same week. The duty is triggered; suspend auto-deletion.

☐ Identify indemnity rights under contracts, leases, and purchase agreements, and give notice within any contractual window.

☐ Ask whether an extension is available. Most opposing counsel grant a first extension; get it in writing and file a stipulation under Rule 6(b).

☐ Check removability if you are in state court and want to be in federal court. The 30-day clock under 28 U.S.C. § 1446 runs from receipt of the initial pleading and does not pause for extensions.

☐ Conflict-check every party and affiliate before appearing.

Part 7 — Motion or Answer?

☐ Is the defect incurable? A nonexistent cause of action, a claim barred on the face of the complaint by undisputed public dates, or a plaintiff without standing justifies a motion. A missing paragraph does not.

☐ Would granting the motion end the case, or only the count that carries fees or punitive exposure?

☐ What will the motion teach the plaintiff? Assume every defect you identify will be fixed within 21 days.

☐ Is delay itself the client's legitimate objective, and is the client willing to pay for it?

☐ Do you need discovery? Dismissing a claim can eliminate the discovery you wanted.

☐ Consolidate every Rule 12 defense into one motion. Rule 12(g) forbids a second bite, and Rule 12(h) extinguishes personal jurisdiction, venue, process, and service if omitted.

☐ Consider Rule 12(e) where the complaint is a shotgun pleading and you genuinely cannot frame a response.

☐ Consider Rule 12(f) where the complaint recites scandalous or immaterial matter designed for press coverage.

☐ Consider a motion to compel arbitration instead of a merits motion, and preserve the right by raising it first.

☐ Consider Rule 12(c) after answering where the answer's admissions make the dispute purely legal.

Part 8 — Drafting the Answer

☐ Respond to every numbered paragraph. Rule 8(b)(6) admits anything not denied, except damages.

☐ Do not use a general denial unless you can in good faith deny everything, including jurisdiction.

☐ Use "lacks knowledge or information sufficient to form a belief" honestly. You cannot claim ignorance of your own records.

☐ Deny the substance, not the wording. A denial that quibbles with a characterization while conceding the event is a denial in form only.

☐ Answer compound paragraphs precisely — admit the part that is true, deny the rest, and say which is which.

☐ State every affirmative defense required by Rule 8(c): accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver.

☐ Add non-enumerated defenses with a factual basis: standing, failure to mitigate, preemption, immunity, exhaustion, setoff and recoupment, unclean hands, comparative fault, apportionment, the economic loss rule, and the existence of an arbitration agreement.

☐ Give each defense one sentence of factual support. Bare lists are increasingly stricken and are hard to defend under Rule 11.

☐ Reserve the right to amend as additional defenses are revealed in discovery — while understanding that a reservation is not a substitute for pleading a defense you already know about.

☐ Include a prayer seeking dismissal, costs, and fees where available.

☐ Include your own jury demand if the plaintiff did not make one and you want a jury.

Part 9 — Counterclaims, Crossclaims, and Third Parties

☐ Identify every claim you have against the plaintiff arising from the same transaction or occurrence. Under Rule 13(a) it is compulsory and lost forever if omitted.

☐ Assess permissive counterclaims under Rule 13(b) and confirm an independent or supplemental jurisdictional basis.

☐ Consider crossclaims against codefendants under Rule 13(g) — contribution, indemnity, and claims relating to the same property.

☐ Implead third parties under Rule 14 within 14 days of your answer, or seek leave. Indemnitors, insurers, upstream suppliers, and subcontractors belong here.

☐ Evaluate whether a required party is missing under Rule 19, and whether joining that party would destroy diversity.

☐ Consider interpleader under Rule 22 or 28 U.S.C. § 1335 where competing claimants seek the same fund.

☐ Serve counterclaims and third-party complaints properly. A counterclaim against an existing party goes through the electronic filing system under Rule 5; a third-party complaint requires a summons and Rule 4 service.

Part 10 — Rule 11 and Sanctions Exposure

☐ Confirm every factual contention has support or is explicitly identified as likely to have support after discovery.

☐ Confirm every legal contention is warranted by existing law or a nonfrivolous argument to change it.

☐ Verify every citation independently. No exceptions, and no reliance on generative tools without checking the reporter.

☐ If you serve a Rule 11 motion, do not file it. Serve it, wait 21 days, and file only if the paper is not withdrawn or corrected. Filing without the safe harbor loses on procedure.

☐ Remember what Rule 11 does not cover — discovery papers, which fall under Rule 26(g) and Rule 37.

☐ Watch 28 U.S.C. § 1927 exposure for conduct that multiplies proceedings unreasonably.

☐ Recognize the court's inherent power under Chambers v. NASCO to sanction bad faith no rule addresses.

Part 11 — Amendment

☐ Determine whether the as-of-right window is open under Rule 15(a)(1).

☐ Seek consent before seeking leave. Written consent avoids a motion entirely.

☐ Attach the proposed amended pleading to any motion for leave.

☐ Address the Foman factors explicitly — delay, bad faith, repeated failure to cure, prejudice, futility.

☐ Check the Rule 16 scheduling deadline. After it passes, the standard is good cause and diligence, not liberality.

☐ Analyze relation back under Rule 15(c) before adding a party after the limitations period. Confirm notice within the Rule 4(m) window and a genuine mistake about identity.

☐ File a clean and a redlined version where local rules require it.

Part 12 — Default and Its Aftermath

☐ Move for entry of default by the clerk first, supported by an affidavit establishing service and non-response.

☐ Then seek judgment — from the clerk only for a sum certain against a non-appearing, non-minor, non-incompetent defendant; otherwise from the court.

☐ Give seven days' notice to any defaulting party who has appeared.

☐ Do not exceed the pleaded demand. Rule 54(c) caps a default judgment at what the complaint requested.

☐ Prove damages with admissible evidence, not with the complaint's allegations.

☐ If you are the defaulted party, move quickly. "Good cause" under Rule 55(c) is far easier than Rule 60(b) relief from a judgment.

☐ Raise defective service if it exists. A judgment void under Rule 60(b)(4) has no time limit.

Part 13 — The Handoff to Discovery

☐ Calendar the Rule 26(f) conference and prepare a preservation position before it.

☐ Prepare initial disclosures under Rule 26(a)(1) and treat them as substantive, not clerical.

☐ Propose a scheduling order with realistic amendment, expert, and dispositive motion deadlines under Rule 16.

☐ Negotiate an ESI protocol and a protective order early, including a Federal Rule of Evidence 502(d) order for clawback.

☐ Map discovery to the pleadings. Relevance under Rule 26(b)(1) is measured against the claims and defenses actually pleaded.

☐ Revisit the element map and identify which cells require documents, which require testimony, and which require an expert.

Part 14 — Mistakes This Checklist Prevents

☐ Missing the response deadline and taking a default. ☐ Pleading residence instead of citizenship and losing federal jurisdiction after a year. ☐ Omitting a compulsory counterclaim and losing it permanently. ☐ Filing a shotgun pleading and being ordered to replead. ☐ Serving a Rule 11 motion and filing it the same day. ☐ Alleging fraud generally and having the count dismissed under Rule 9(b). ☐ Waiving personal jurisdiction by filing a merits motion first. ☐ Missing the Rule 4(m) service deadline after the limitations period has expired. ☐ Adding a "John Doe" defendant after limitations and discovering relation back does not apply. ☐ Attaching an exhibit that contradicts the complaint. ☐ Requesting relief the pleaded claim cannot support. ☐ Forgetting the jury demand.

Part 15 — Decision Trees You Can Run in Ten Minutes

Should I move to dismiss or answer?

  1. Is any ground jurisdictional or dispositive of the whole case? → Move.
  2. Would granting the motion eliminate the only count carrying fees, punitive damages, or injunctive exposure? → Move.
  3. Is every defect curable by adding facts the plaintiff plainly has? → Answer, and attack on a record under Rule 56.
  4. Do you have personal jurisdiction, venue, process, or service defenses? → Move, consolidating all of them, or lose them under Rule 12(h).
  5. Is there an arbitration agreement? → Move to compel first, before any merits filing.

Is this claim time-barred on the face of the complaint?

  1. Identify the accrual date the complaint itself pleads.
  2. Add the limitations period for that claim in that forum.
  3. Compare to the filing date shown on the docket.
  4. If barred, ask whether the complaint pleads facts supporting tolling, the discovery rule, equitable estoppel, or concealment.
  5. If it does not, the defense is available on a Rule 12(b)(6) motion. If it does, it is a summary judgment issue.

Does this counterclaim have to be brought now?

  1. Does it arise from the same transaction or occurrence as the plaintiff's claim? If no → permissive.
  2. Does it require a party the court cannot reach? If yes → not compulsory.
  3. Was it already the subject of another pending action when this suit began? If yes → not compulsory.
  4. Otherwise it is compulsory under Rule 13(a) and is lost if omitted.

Can I still add this defendant?

  1. Has the limitations period expired? If no → amend under Rule 15(a) or move for leave.
  2. If yes, does the claim arise from the same conduct pleaded originally?
  3. Did the new defendant receive notice within the Rule 4(m) period?
  4. Did it know or should it have known the action would have been brought against it but for a mistake about identity?
  5. All four → relation back. A "John Doe" placeholder replaced after learning a name usually fails step four.

Should I remove this case?

Run the removal checklist, but the threshold questions are: is there an independent federal basis; do all served defendants consent; is the notice within 30 days of the first removable paper; and, in a diversity case, is any properly joined defendant a citizen of the forum state.

⭐ A closing discipline. After the pleadings close, re-read the complaint and the answer side by side and list every fact that is now admitted. That list is the skeleton of your summary judgment motion or your trial outline, and it is available to you months before anyone has taken a deposition. The trial preparation checklist and the damages checklist both start from it.

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