EXHIBIT 4:1 Sample Complaint (State)

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EXHIBIT 4:1 ■ Sample Complaint (State)

STATE OF COLUMBIA CAPITOL COUNTY CIRCUIT COURT (caption) MARY E. JOHNSON, Plaintiff v. Civil Action, File No. 00000 ARTHUR HENDRICKS, Defendant JURY TRIAL DEMANDED COMPLAINT FOR NEGLIGENCE The Plaintiff states that: (body) 1. The court has jurisdiction in this matter under Section 403A, Title 23 of the Columbia Revised Statutes. 2. Plaintiff is a paralegal and resides at 43 South Senate Avenue, Legalville, in Capitol County, Columbia. 3. Defendant is a baker and lives at 500 Maple Street, Legalville, in Capitol County, Columbia. 4. Defendant owns and operates the Deli Bakery at 508 Maple Street, Legalville, in Capitol County, Columbia. 5. On August 23, ____, at said bakery, Defendant sold Plaintiff a chocolate eclair, which was negligently prepared containing pieces of glass. 6. Plaintiff ate said pastry, receiving the following damage: a. Great pain and suffering b. Internal injuries c. Medical and hospital bills d. Loss of income (prayer for relief) WHEREFORE, Plaintiff demands judgment in the amount of ten thousand dollars ($10,000), together with the costs and disbursements of this action. Plaintiff demands trial by jury. ______Plaintiff’s Attorney 407 E. Second Avenue Legalville, Columbia State of Columbia County of Capitol (verification) Mary Johnson, on oath, deposes and states that she has read the foregoing complaint and that the matters stated therein are true to the best of her knowledge, information, and belief. ______Mary Johnson Subscribed and sworn to before me this 12th day of October, ______Notary Public My commmission expires: _____

Breach of Contract

In any type of contract action, the existence of the contract and the type of contract must be proven. The law recognizes three types of contracts. 1. Oral contracts In the complaint, the plaintiff must allege the terms of the contract including the consideration for the contract. 2. Written contracts The plaintiff must allege the terms of the contract or attach a copy of the contract to the complaint as an exhibit. 3. Implied contracts An implied contract may exist when, despite no formal agreement, the actions of the parties cause the court to find that a contract exists. For example, a person operating a restaurant may be found by the court to have an implied contract to provide the public with healthy, wholesome food. If the patrons in the establishment are suddenly struck with hepatitis, a suit for breach of this implied contract may result. In a suit of breach of implied contract, the following facts must be alleged in the complaint: — The performance by the plaintiff of the contract terms or the excuse for his [or her] nonperformance; — The facts which caused the defendant to fail to fulfill his [or her] part of the contract; and — The damages suffered by the plaintiff as the result of the defendant’s nonperformance. Remedies available

■ General damages: Compensation for the injuries suffered by the plaintiff directly stemming from the defendant’s breach. ■ Special damages: Compensation for the “out-of-pocket” expenses suffered by the plaintiff due to the breach, such as loss of earnings, medical expenses, and injury to property. ■ Attorney’s fees: Attorney’s fees are available in any contractual action if called for under the terms of the contract. ■ Costs of suit: Costs of suit are available in any action at the discretion of the court. ■ Liquidated damages: Some contracts include in their terms a “liquidated damages” provision, spelling out specific sums payable by a party upon breach of the contract. These provisions may have an effect on the damages awarded to the plaintiff.

■ Exemplary damages: Recently, some state courts have recognized and approved the award of exemplary or punitive damages in a breach of contract case, if the breach is found by the court to have been “willful or malicious.” Exemplary damages are awarded by the court to punish the defendant because of the particularly reprehensible nature of his actions. ■ Prejudgment interest: Some contracts have provisions for the payment of interest by the defendant on any sums which are to be found due and owing to the plaintiff. Anticipatory Breach of Contract

If one party to a contract unilaterally repudiates the contract before the time of performance, the injured party may either: ■ Wait until the time for performance of the contract, and bring suit for breach of contract; or ■ Bring immediate suit for anticipatory breach of contract. The defendant’s repudiation of the contract may take one of two forms: (1) Expressed, when defendant’s repudiation is clear, positive, and unequivocal; or (2) Implied, when the actions of the defendant make performance of the contract impossible. An example of this cause of action would be a farmer who contracts with a laborer to plow [a] field on a given date. Prior to the date of the plowing, the laborer communicates to the farmer [a refusal to] plow the field (expressed anticipatory breach), or the farmer learns that the laborer will be out-of-town on the date set for the plowing (implied anticipatory breach). In either of the [these] instances, the farmer will have a cause of action for anticipatory breach of contract. In bringing suit for anticipatory breach of contract, all the following elements must be pled: ■ Existence of a contract; ■ The actions of the defendants which caused the anticipatory breach; ■ That these actions happened before the time of performance of the contract; ■ That the plaintiff has performed his duties under the contract; and ■ That plaintiff has been injured by the actions of the defendant. Remedies available The following remedies are available in an action for anticipatory breach of contract: ■ Compensatory damages: The measure of the compensatory damages is the amount that will fully compensate the plaintiff for the damages caused by the breach, or that will result from the breach in the ordinary course of events. ■ Future damages: The plaintiff is entitled to any damages that he may foresee as the result of the breach, but only at their present value. ■ Limitation on damages: The damages awarded for anticipatory relief are limited to “reasonable damages.” No punitive or exemplary damages may be awarded, nor can the plaintiff receive a greater amount than he [or she] would if the contract had been performed. Specific Performance

The remedy for a cause of action for specific performance is a court order that the contract in question be performed exactly as it was written and negotiated. This remedy is not available for the following types of contracts: ■ Personal service contracts; ■ Contracts to employ another; ■ Contracts for acts which the party charged with performing the act has no legal power to do at the time of the contract. An example of this bar would be a contract to sell a piece of property before the selling party had in fact purchased it; and ■ Agreements to obtain the consent of a third party. (continued)

The elements making up the specific performance cause of action are: ■ Existence of the contract; As well as containing the elements listed in [Breach of Contract], the complaint must also state that performance of the contract was possible for both parties. ■ That the plaintiff has performed his [or her] duties under the contract; ■ That the defendant has failed to perform his [or her] duties under the contract; and ■ That the plaintiff has an inadequate remedy at law. This means that an award of money will not compensate the plaintiff for the damages suffered. It is this element that separates a cause of action for specific performance from a cause of action for breach of contract. Remedies available The following remedies are available in an action for specific performance: ■ In general: — An order for performance of the contract; and — An adjustment for the losses suffered by the parties because of the delay in performance. ■ In actions involving real property: — Rents and profits which would have accrued to the plaintiff had he obtained the property under the contract; — The buyer of real property may be awarded interest on any money deposited in escrow; — The seller of real property may be awarded interest on any money he would have received had the property been bought; and — The seller may recover the upkeep expenses of the property, such as taxes and insurance costs. ■ Injunctive relief. Injunctive relief is an order by the court that an action be done or to prevent someone from performing a specified action. Contractual Reformation

Contractual reformation is a request to the court to change the terms of a contract because of an error made by the parties. The elements to prove this cause of action are: ■ Existence of the contract; ■ The mistake which arose between the parties; and ■ The grounds for the reformation which include: — Mutual mistake of fact; or — Fraud, which occurs when one party falsely represents that modifications will be made to the written agreement conforming with the original agreement between the parties. Remedies available The sole remedy for a cause of action for contractual reformation is correction of the error made in the contract. Rescission

This action calls upon the court to cancel a contract on any of the following grounds: ■ The agreement was made under a mistake of fact or law; ■ That the party requesting the rescission was mentally incompetent;

■ That there was a material breach of the contract; ■ That all parties to the contract agreed to the rescission; ■ That the agreement was induced by fraud, duress, menace, or undue influence; or ■ That the contract was unlawful or against the public interest. The elements which must be pled in the complaint are: ■ Existence of a contract; ■ The grounds for the rescission as listed; and ■ That the plaintiff suffered a material injury. Remedies available The following remedies are available in an action for rescission: ■ Implied damages: This remedy includes the repayment of any contractual consideration provided by the plaintiff and all incidental damages that may have been suffered as the result of the contract. ■ Attorney’s fees: In a rescission action, the court may award attorney’s fees, even if not called for in the contract. ■ Exemplary damages: These may be awarded if it is found that the defendant fraudulently induced plaintiff to enter into the contract. Quantum Meruit (Unjust Enrichment)

This cause of action arises when the defendant fails to pay for goods or services supplied by the plaintiff at the request of the defendant. The elements necessary to plead this cause of action are: ■ The defendant requested plaintiff’s performance; ■ The plaintiff performed the services requested: ■ The services rendered by the plaintiff had a fair and reasonable value; and ■ The defendant(s) failed to pay for the goods or services rendered. Remedies available The following remedies are available in an action for quantum meruit: ■ Damages equal to the value of the goods and services rendered; ■ Special damages, which include the costs incurred by plaintiff in attempting to enforce the contract; ■ Attorney’s fees; ■ Costs of suit; and ■ Liquidated damages, if called for in the contract. Negligent Torts Causes of Action

The types of torts in this classification include the following: ■ Personal injury ■ Wrongful death ■ Attorney malpractice ■ Medical malpractice ■ Infliction of emotional trauma ■ Wrongful termination In any negligent tort, the following elements must be pled: ■ The existence of a duty owed by the defendant to the plaintiff There is no hard and fast rule for determining the existence of a duty. The general rule is the question: how would a “reasonable” person have acted in the role of the defendant? If this reasonable person would have (continued)

©2008 Thomson Delmar Learning EXHIBIT 4:2 ■ Causes of Action and Remedies3 (continued) performed differently than the defendant and would have taken steps to prevent or lessen the injury suffered by the plaintiff, then a duty exists for the defendant to act in the same manner.

■ Breach of the duty ■ Plaintiff suffered an injury caused by defendant’s breach of duty Remedies Available in a Negligent Tort Action

In any negligent tort action, the plaintiff may recover the following:

■ Compensatory damages: The plaintiff may recover damages for the detriment suffered as a result of the defendant’s negligent conduct. ■ Lost earnings: Plaintiff may recover any wages lost because of the defendant’s negligent conduct. The amount of lost earnings to be awarded to the plaintiff is based upon the plaintiff’s possible future earnings, not past income. ■ Lost profits: This remedy is available when it can be proven that the plaintiff had a reasonable expec- tation of earning profits based upon prior earnings. ■ Injury to personal property: The plaintiff can be awarded damages based upon the damage and the loss of use of personal property. ■ Personal injuries: The plaintiff can recover damages to compensate for the injuries incurred because of defendant’s negligent actions and any injuries the plaintiff can reasonably expect to incur in the future. ■ Pain and suffering: Plaintiff can recover for past pain and suffering, and if [the] injury is permanent, for the pain and suffering expected to occur in the future. ■ Emotional distress: Recoverable by the plaintiff in most states only if he [or she] has suffered a physi- cal injury. ■ Loss of consortium: Recoverable by spouse of the plaintiff for loss of the love and affection of a spouse. ■ Exemplary damages: Exemplary or punitive damages are available where it can be shown that the defendant acted with malice or criminal indifference. Relief Available in a Wrongful Death Action

The damages available in wrongful death actions differ from those available in other negligent torts as follows:

■ General damages: In most states, the monetary damages awarded in a wrongful death action are based upon a formula which takes into account the future monetary contributions and the value of any personal service, training, or advice that may have been given by the decedent to heirs. ■ Spousal damages: A surviving spouse may recover for the loss of the defendant’s love and affection and the value of future earnings. ■ Parental damages: The parents of a deceased child may recover for loss of the child’s comfort and society. The parent’s future costs for the child’s support and education may be discounted in the award. ■ Emotional and mental distress: Damages for these factors are available when death is not instantaneous. ■ Exemplary damages: The laws of most states disallow the awarding of exemplary damages in a wrongful death action. ■ Funeral expenses: The decedent’s survivors are entitled to the reasonable cost of all funeral expenses. ■ Damages otherwise available to the decedent: The administrator of the decedent’s estate is permitted to maintain any action on behalf of the decedent that would have accrued had the decedent survived, such as an action for damage to personal property. Such actions are usually joined in the wrongful death complaint.

Other Torts

Aside from the negligence torts, a class of tort relates to the conduct of business and business relationships. Unfair Competition

To bring an action for unfair competition, the following facts must be pled in the complaint: ■ The plaintiff must be engaged in a business affected by the interference of the defendant; ■ The defendant must have engaged in improper conduct, an unlawful, unfair, or fraudulent business practice or have been engaged in unfair, untrue, or misleading advertising; and ■ Defendant’s conduct must have resulted in injury to the plaintiff. Remedies available The following remedies are available in unfair competition actions: ■ Injunctive relief: Injunctive relief is available to the plaintiff where the court finds that general damages will not fully compensate the plaintiff. ■ Restoration of property: The court may order the defendant to provide an accounting of the monies or property earned by the defendant from the unfair competition and that any such monies be paid to the plaintiff. ■ Exemplary damages: These damages are awarded if the court finds the defendant’s actions to have been malicious. Inducing Breach of Contract

To bring an action for inducing breach of contract, the following conditions must be pled: ■ The existence of valid contract between the plaintiff and a third party; ■ Knowledge of the existence of the third party contract by defendant; ■ Defendant’s intention to cause the breach of the third-party contract; ■ Breach of the contract by the third party; ■ That the defendant was the cause of the breach of contract; and ■ Injury to the plaintiff resulted. Remedies available The following remedies are available in an action for inducement of breach of contract: ■ Injunctive relief; ■ General damages; ■ Special damages, including any damage to plaintiff’s good will; and ■ Exemplary damages on the showing of maliciousness by the defendant. Tortious Interference with Prospective Economic Advantage

To bring an action for tortious interference with prospective economic advantage, the following facts must be pled in the complaint: ■ Existence of relationship between the plaintiff and a third party: This relationship must contain the possibility of an economic or monetary benefit accruing to the plaintiff. ■ Knowledge of this relationship by the defendant: This includes relationships of which the defendant has direct knowledge and those that the defendant should have reasonably known to have existed. For example, if there are only two manufacturers of a certain type of widget, the defendant can reasonably be expected to know that any third party using these widgets obtained them from one of the two sources. (continued)

■ The defendant’s intent to interfere with the economic relationship; ■ Disruption of the relationship; and ■ Injury to the plaintiff caused by the disruption. Remedies available The following remedies are available in an action for tortious interference with prospective economic advantage:

■ Injunctive relief; ■ General damages; ■ Special damages, including any damage to plaintiff’s goodwill (goodwill is defined as the manner in which a business is perceived by the public); and ■ Exemplary damages on the showing of maliciousness by the defendant. Misappropriation of Trade Secrets

To bring an action for misappropriation of trade secrets, the following facts must be pled in the complaint:

■ Existence of a trade secret: An exact definition of a trade secret is not possible. However, it must be a scientific or technical process which gives the possessor a unique advantage over a competitor. It has also been held that certain elements of the retail trade, such as customer lists, constitute trade secrets. ■ Defendant must owe a duty not to disclose the information; ■ Disclosure of the secret by the defendant; and ■ Damage suffered by the plaintiff by the disclosure. Remedies available

■ Injunctive relief; ■ Compensatory damages including the loss of value to plaintiff’s business suffered because of defendant’s disclosure; and ■ An accounting of all profits earned by the defendants because of the misappropriation.

Source: Copyright James Publishing, Inc. Reprinted with permission of the publisher.

[Fed R. Civ. P. 65(a)] [Title of Court and Cause] Plaintiffs, ______and ______, move the Court for a preliminary injunction in the above entitled cause enjoining the defendants, and ______and ______, their agents, servants, employees, and attorneys, [and those persons in active concert or participation with them] from ______The grounds in support of this motion are as follows: 1. ______2. ______Unless restrained ______and ______will immediately [state action defendants will take unless restrained ]. Immediate and irreparable injury, loss, and damage will result to the plaintiffs by reason of the threatened action of the defendants, as more particularly appears in the verified complaint filed herein and the attached affidavit of ______. The plaintiffs have no adequate remedy at law. If this preliminary injunction be granted, the injury, if any, to defendants herein, if final judgment be in their favor, will be inconsiderable and will be adequately indemnified by bond. [Add if appropriate: Plaintiffs further move the Court that the trial of this action on the merits be advanced and consolidated with the hearing of this motion for preliminary injunction. The grounds in support of consol- idation are as follows: Add matter similar to matter in second paragraph of form in § 5272]. ______Attorneys for Plaintiffs Address: ______

Source: Reprinted with permission of West Group.

[Fed. R. Civ. P. 65(b)] [Title of Court and Cause] Plaintiff moves this court to grant [(1) forthwith and without notice to defendant or his attorney] a temporary restraining order restraining and enjoining the defendant [his agents, servants, employees, and attorneys, and those persons in active concert and participation with him] from [describe actions sought to be enjoined by motion] pending a hearing and disposition of plaintiff’s motion for a preliminary injunction filed herein on ___, ___, [and scheduled by the court for a hearing on defendant or his attorney on ___, ___] on the ground that immediate and irreparable loss, damage, and injury will result to plaintiff [(2) before defendant or his attorney can be heard in opposition] and before [notice can be served and] a hearing can be had on plaintiff’s motion for a preliminary injunction, if defendants are permitted to [describe actions sought to be enjoined ], as more fully appears from plaintiff’s verified complaint herein and the attached affidavits of ___ [(3) and the attached certificate of applicant’s attorney certifying the efforts which have been made to give defendant notice, and the reasons notice of this motion should not be required]. [Date] ______Attorneys for Plaintiffs Address: ______

Source: Reprinted with permission of West Group.