Have you ever filed a reply to a counterclaim where your
reply was 89 pages long and to which you attached more than 200 pages of
exhibits? I think you probably haven't, but the Plaintiff in the Business
Court case Fountain v. Fountain Powerboats, Inc. did. When the
Defendant made a Motion to Strike the Reply, Judge Gale granted it in an
Order filed last Friday, saying that dissecting all the irrelevant
allegations of the Reply "would burden this opinion with a tediousness
serving no useful purpose."" Op. ¶21.
The legal issue decided in the opinion was whether a responsive pleading like a
reply to a counterclaim or an answer to a complaint gives the responding party
the latitude to provide the Court with "notice of the transactions,
occurrences, or series of transactions or occurrences, intended to be proved,"
which is what the Plaintiff said his rambling Reply had provided. The problem
with that argument was that the quoted language, from Rule
8(a) of the North Carolina Rules of Civil Procedure, applies only to complaints.
The part of Rule 8 that governs answers to complaints and replies to
counterclaims doesn't contain that language and doesn't permit "a new cause of
action or other matter beyond the scope of the new matter raised in the
In other words, complaints and counterclaims, which
set forth causes of action, allow for a "richness of detail" which isn't
warranted in a response to those allegations.
Read this article in
its entirety on North
Carolina Business Litigation Report, a blog for lawyers focusing on issues
of North Carolina business law and the day-to-day practice of business
litigation in North Carolina courts.
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