§ 7.01  Modern Notice Pleading

 

[1] Purpose of Modern Pleadings

 

Although common law required pleading to formulate issues for trial, and many state codes require pleadings to present facts on the claims stated therein, the purpose of modern federal pleading rules is simply to give notice of claims and defenses adequate for the opposing party to make discovery requests and prepare for trial.  There are three types of pleading under the federal rules:  complaint, answer, and in limited circumstances, reply.

 

[2] Liberal Pleading

 

The federal rules permit liberal pleading.  Thus, modern notice pleading has substantially eliminated the theory-of-the-pleadings approach.  As long as the pleader asserts some theory that would entitle the claimant to relief, the pleading is sufficient.  FRCP 8(e)(2) expressly permits the pleading of alternative or hypothetical claims and defenses and as many claims or defenses as a party has “regardless of consistency.” FRCP 8(a) permits demands for alternative types of relief.

 

FRCP 15(b) permits amendment of the pleadings to conform to the evidence at trial, and indeed provides for constructive amendment when the parties have consented to any variance from the pleadings.

 

FRCP 54(c) provides that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.”

 

[3] Form of Notice Pleading

 

Modern notice pleading requires no “technical forms of pleading.” [FRCP 8(e)(1)] A pleading need only include a caption, numbered paragraphs containing averments “limited as far as practicable to a statement of a single set of circumstances,” and separate counts for different claims or defenses.   None of these requirements is strictly enforced because “[a]ll pleadings shall be so construed as to do substantial justice.” [FRCP 8(f)]

 

[4] Special Pleading Rules

 

While notice pleading – which does not require facts to be pleaded with particularity – is the norm, FRCP 8(a) does impose a particularity requirement for pleading any “special matters” set forth in FRCP 9.  Special matters are generally claims that would not necessarily be anticipated by the adversary, e.g.:

• a denial of a party’s capacity to sue or be sued.
• denial of the occurrence or performance of a condition precedent.
• suits based on fraud or mistake.
• claim for special damages, i.e., damages for injuries that are not a normal and expected consequence of the event at hand.

 

 

§ 7.02  FRCP 11

 

[1] Certification of Court Documents

 

FRCP 11(a) requires that every pleading, written motion, and other paper be signed by an attorney of record, or the party, if unrepresented by counsel.  Pleadings need not generally be verified or accompanied by affidavit.  By signing a pleading or other judicial document, the attorney or party certifies that, “to the best of his knowledge, information, and belief formed after reasonable inquiry”:

 

(1) the pleading is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

 

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

 

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

 

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

 

            [2] Violations and Sanctions

 

FRCP 11 is violated by “signing, filing, submitting, or later advocating” a paper when the litigant knows that it is no longer well-grounded, thus imposing on litigants a continuing duty to correct or even withdraw papers in light of post-filing events.

 

Courts may impose FRCP 11 sanctions of their own initiative but generally a FRCP 11 motion is made by the pleader’s adversary.  Sanctions, imposed at the discretion of the court, may include:  reasonable attorneys fees; fines; striking the offending paper; admonishing, reprimanding, or censuring the offender; requiring the offender to participate in educational programs; or referring the matter to disciplinary authorities.

 

FRCP 11(c)(1)(A) grants a litigant 21 days between service and filing of a FRCP 11 motion to correct or withdraw the offending paper.

 

 

§ 7.03  The Complaint

 

In federal practice, an action commences with the filing of the complaint. [FRCP 3] The complaint is to be served on the defendant within 120 days of filing. [FRCP 4(m)]  The complaint must include:

 

            (1) a statement of jurisdiction – FRCP 8(a) requires the claimant to include a statement of the “grounds upon which the court’s jurisdiction depends” unless the court already has jurisdiction and the claim needs no independent grounds; and

 

(2) a statement of the claim – FRCP 8(a) requires the complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.”  The pleader must at least allege a prima facie claim.

 

           

§ 7.04  The Answer

 

The answer may contain three kinds of responses: denials controverting the pleader’s allegations; defenses; and claims by the defendant.

 

[1] Denials

 

In all jurisdictions, the defendant must admit or deny in the answer all the well-pleaded allegations of the complaint. Failure to deny an allegation in a required responsive pleading, other than an allegation of the amount of damages, is deemed an admission.  Admissions are deemed conclusive at trial. [FRCP 8(d)]

 

[2] Defenses

 

Besides denials, an answer should contain “in short and plain terms” other defenses to each claim in the complaint. [FRCP 8(b)]  FRCP 8(c) lists the affirmative defenses that must be pleaded in the answer in order to raise them at trial, including:

• statute of limitations.
• illegality.
• fraud.
• contributory negligence.
• accord and satisfaction.
• arbitration and award.
• assumption of risk.
• discharge in bankruptcy.
• duress.

 

Other defenses such as lack of jurisdiction, improper venue, insufficient service of process, or failure to state a claim upon which relief may be granted, may be asserted in either the answer or a FRCP 12(b) motion to dismiss.

 

[3] Defense Claims

 

A defendant may also respond to the complaint by asserting claims against the plaintiff, other defendants or third parties.

 

[4] Timing of the Answer

 

Generally the answer must be served within 20 days after service of the complaint.  If the plaintiff sends the defendant a request to waive formal service, and the defendant agrees to accept service by mail, the defendant has 60 days from the date the request was sent within which to answer.  [FRCP 12(a)(1)(B)]

 

If the defendant brings a pre-answer FRCP 12 motion to dismiss the complaint but does not prevail, he has 10 days after the court denies the motion in which to serve the answer. 

 

 

§ 7.05  Reply to Answer

 

Under the federal rules, further pleading is necessary after an answer only if it introduces a claim, which is treated as tantamount to a complaint. FRCP 7(a) requires a reply to a counterclaim denominated as such and answers to all other claims included in the original answer, served within 20 days after service of the answer.  No other pleadings are allowed as of right, and all averments in the last required pleading are deemed denied or avoided.

 

 

§ 7.06  Supplemental Pleadings        

 

FRCP 15(d) authorizes supplemental pleading “setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” Such pleadings are most commonly used to allege new damages, or affirmative defenses that have accrued since filing of the complaint, such as discharge in bankruptcy, release or res judicata. Before a supplemental pleading may be filed the court must grant leave and may set conditions designed to minimize its impact on the pending litigation. No responsive pleading to a supplemental pleading is permitted without court order.

 

 

§ 7.07 Amendment of Pleadings

 

[1] Amendment Without Permission of the Court

 

FRCP 15(a) provides that a party may amend “once as a matter of course” (without permission from the court or consent of other parties) before a responsive pleading is served, or within 20 days of service if no responsive pleading is required.

 

[2] Amendment Requiring Permission of the Court

 

FRCP 5(b) authorizes pleading amendments upon consent by the court during trial and even after judgment, “to conform to the evidence.”

 

[3] Amendment and the Statute of Limitations

 

[a] Amendments to Claims

 

In federal actions, an amendment of a claim or defense relates back to the date of service of the original pleading if the doctrine of relation back is permitted by controlling state or federal statute of limitations law, or if it is allowed by FRCP 15(c)(2).  FRCP 15(c)(2) allows relation back when “the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading.”  Thus, the transactional relationship test permits relation back of amendments that merely change the legal theory on which plaintiff seeks relief for the identical transaction.  However, when the amendment presents a new claim that is factually unrelated to the original claims, it operates, in effect, as a separate action, which must independently satisfy the statute of limitations.

 

[b] Amendments to Parties

 

As a general rule, amendments to add parties are disallowed in most jurisdictions, except when the amendment arises out of the same transaction as the original pleading and the new party had timely notice of the original pleading. In federal court, an amendment regarding parties relates back if relation back is permitted by the state or federal law that provides the applicable statute of limitations, or if it is permitted by FRCP 15(c)(3).  Under that rule, the amendment relates back if:

 

(1) the claim arises out of the same conduct, transaction, or occurrence set out in the original pleading, and

(2) the party added by amendment:

(a) within the 120-day period provided by FRCP 4(m) for service of process, received such notice of the institution of the action that the added party would not be prejudiced in defending on the merits and

(b) knew or should have known that the action would originally have been brought against the added party, but for a mistake in identity of the proper party.

 

Many jurisdictions permit relation back of an amendment which simply corrects a misnomer — a reasonable mistake in the name of the party intended to be sued. In such a case, the party intended to be sued received notice of the action from the original complaint.   Relation back is also permitted in some jurisdictions when there is sufficient identity of interests between the party originally sued and the new party that notice to the former can be imputed to the latter.

 

 

§ 7.08  FRCP 12 Motions on the Pleadings

 

FRCP 12 sets forth a number of motions than can be brought in response to the pleadings.

 

[1] Motions to Dismiss the Complaint

 

[a] FRCP 12(b)(6)

 

A 12(b)(6) motion is brought by a defendant seeking to dismiss the complaint for failure to state a claim upon which relief can be granted.  It may be filed at any time in the proceedings, even at trial. [FRCP 12(h)(2)]  A 12(b)(6) motion alleges that based on the facts alleged in the complaint, there is no legal theory under which plaintiff can obtain relief. The motion is not granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” [Conley v. Gibson, 355 U.S. 41 (1957)]  If granted, the complaint is typically dismissed without prejudice so that the plaintiff can amend it.

 

[b] Other 12(b) Motions

 

FRCP 12(g) and 12(h)(1) provide that the following defenses are waived unless they are asserted in a single pre-answer motion, or, if none is filed, in an answer or reply or any amendment thereto permitted as a matter of course:

• lack of personal jurisdiction. [FRCP 12(b)(2)]
• improper venue. [FRCP 12(b)(3)]
• insufficiency of process. [FRCP 12(b)(4)]
• insufficiency of service. [FRCP 12(b)(5)]

 

In contrast, a defense of lack of subject matter jurisdiction [FRCP 12(b)(1)] may be raised at any time, even after the trial.  [FRCP 12(h)(3)]

 

[2] Motion for Judgment on the Pleadings

 

After service of all the pleadings in a case, either side may seek judgment on the pleadings under FRCP 12(c).  Upon submission of materials in addition to the pleadings, the motion becomes one for summary judgment.

 

[3] Motions to Strike

FRCP 12(f) allows a plaintiff or defendant to move to strike from a pleading “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” prior to responding to a pleading, or if no responsive pleading is permitted, within 20 days after service of the pleading.

 

[4] Motion for More Definite Statement

Where a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement prior to responding. If the motion is granted and the pleading is not corrected within 10 days after notice of the order, the court may strike the pleading. [FRCP 12(e)]