The first stage in any
lawsuit is the pleading stage. Plaintiff initiates the lawsuit by filing a
pleading, usually called a "complaint."
Defendant then may respond by filing one of the responsive pleadings.
Usually this is a pleading called the "answer."
At common law there were very
strict rules regarding pleading. The pleadings could continue
indefinitely, until they had produced a single issue of law or fact that
would then be decided. Thus, there were rigid stages of denial,
avoidance, or
demurrer, eventually to reach a single issue of law or fact upon which
the case would be tried.
The common law recognized very
specific forms of action such as
trespass, case,
ejectment,
covenant,
debt and assumpsit, etc. The pleader had to fit his facts into one of
these forms of action. If he was unable to do so the lawsuit was thrown
out at the pleading stage without there ever being a trial on the merits.
Furthermore, law and
equity were separate systems. To be entitled to equitable relief one
had to show that any available legal remedies would be inadequate.
Historically Pleadings Have
Had 4 Functions:
1. Giving notice of the
nature of a claim or defense.
2. Set forth the facts each
party believes to exist.
3. Narrow the issues.
4. Provide a means for
speedy disposition of sham claims and insubstantial defenses.
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Common law pleading eventually
gave way to code pleading. The two most prominent features of which were
the abolition of the common law forms of action and the merger of law and
equity. Under the codes the important emphasis was on developing the
facts by pleadings.
Fact Pleading vs. Notice
Pleading In code pleading states such as California, a pleader is
required to plead "ultimate facts." Compare
Cal.Code.Civ.Proc. § 425.10(a) which provides that the complaint must
contain "a statement of the facts constituting the cause of action in
ordinary and concise language" with
FRCP 8(a)(2) which calls for "a short and plain statement of the claim
showing that the pleader is entitled to relief." The latter is is called
notice pleading. Rule 8 effectively abolishes technical forms of
pleading. Contrasted with the four historical functions of the pleadings,
under the federal rules the only function left to be performed by the
pleadings is that of notice.
Ethical Limitations and
Disfavored Claims
FRCP 11 requires that every pleading must be signed by at least one
attorney of record or by the party if he is not represented by counsel.
The signature constitutes a certificate that the signer has read the
pleading, that to the best of his knowledge, information and belief there
is good ground to support it, and that it is not interposed for delay.
(Wright § 66) Rule 11 requires the lawyer to conduct a reasonable inquiry
into the facts and the law before filing a claim, and the applicable
standard is one of reasonableness under the circumstances. (Business
Guides v. Chromatic Communications Enterprises, 498 U.S. 533, 111
S.Ct. 922 (1991)) The purpose of the Rule 11 signature requirement is to
bring home to the signer his or her personal nondelegable responsibility
to certify the truth and reasonableness of the document being filed. (Pavelic
& LeFlore v. Marvel Entertainment, 493 U.S. 120, 110 S.Ct. 456
(1989)) Rule 11 violations may be punished by sanctions against the
particular individual who signs his or her name.
Rule 11 places a great emphasis
on the duty of lawyers to avoid abuse of litigation by requiring an
attorney to investigate both the legal and factual basis of a claim before
filing suit, and by promoting increased use of sanctions for violation of
various rules. Courts have begun using sanctions energetically (some
think too energetically) to punish those who bring groundless suits, an
effort that may deter some groundless litigation. (86 Col.LR 433, 444)
An "appropriate sanction" under Rule 11 may include paying the other
parties expenses. Since a Rule 11 violation is complete when the paper is
filed, a voluntary dismissal does not expunge it. (Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447 (1990))
Particular Pleading Problems
In order to plead a right to
relief, the pleader must first know the essential elements upon which his
claim or claims will be based. Plaintiff is not required to allege the
existence or nonexistence of each and every factor that might affect the
outcome of the litigation; some matters are considered defenses to be
raised by the defendant in the answer. How does one draw the line between
factors that must be raised by the party seeking relief and those that
constitute affirmative defenses? The general rule is that a party bears
the responsibility for pleading those matters upon which that party must
produce proof at trial. If plaintiff in the complaint was required to
raise and overcome every conceivable defense, not only would the complaint
be unnecessarily long but one could never be certain just what defenses
were seriously in contention. (Friedenthal § 5.15; see, e.g.
Gomez
v. Toledo, 446 U.S. 635 (1980))
Responding to the Complaint
Pre Answer Motion
At common law and in code
pleading jurisdictions a challenge to the substantive sufficiency of a
complaint or an answer is termed a "general demurrer." Under the Federal
Rules, demurrers have been abolished. Instead, we have the motion to
dismiss for failure to state a claim (FRCP
12(b)(6)) and a motion to strike an insufficient answer. (FRCP12(f))
From a functional point of view these motions operate exactly as do
general demurrers to the complaint or to the answer. Each asks whether,
even if all the allegations are true, the pleader has stated a valid claim
or defense under the law. (Friedenthal § 5.22)
FRCP 12(b)(6) must be read in conjunction with
FRCP 8. Because Rule 8 requires only "a short and plain statement of
the claim showing that the pleader is entitled to relief," few pleadings
are likely to fail under Rule 12(b)(6). It is most effective to attack
pure questions of law; e.g., is the statute of limitations a bar? Does
the statute of frauds preclude enforcement of the contract?
Rule 12(b) motions include all
the threshold motions to dismiss for lack of jurisdiction, insufficiency
of service of process, failure to state a claim, or failure to join an
indispensable party. All Rule 12(b) motions must be brought at one time
and must be made before the filing of a substantive pleading such as an
answer.
Waiver of Preservation of
Certain Defenses The defenses of lack of
jurisdiction over
the person, improper
venue,
insufficiency of process and insufficiency of
service of process are waived if not included in a Rule 12 motion, or,
if no such motion is made, if they are not included in the responsive
pleading or an amendment as of right to that pleading. The defenses of
failure to state a claim upon which relief can be granted; failure to join
an
indispensable party under
FRCP 19, and failure to state a legal defense to a claim may be made
in any pleading permitted under
FRCP 7, or by a motion for judgment on the pleadings, or at the trial
on the merits. Most courts consider the defense of failure to join an
indispensable party jurisdictional and therefore never waived. The defense
of lack of subject matter
jurisdiction is never waived.
The Answer
"General" or "Specific"
Denial?
A
general denial consists of one sentence simply stating that "defendant
denies each and every allegation of plaintiff's complaint." A specific
denial involves a sentence-by-sentence or paragraph-by-paragraph analysis
of the complaint, denying only those allegations that defendant intends to
contest. Typically the general denial is used when defendant contests the
basic sum and substance of the complaint even though a few of the
allegations are true. Federal courts limit the use of general denials to
those cases in which defendant actually intends to controvert each and
every one of plaintiff's allegations. (See
FRCP 8(b)) This virtually eliminates use of the general denial since
it will be an exceedingly rare complaint in which none of the facts
alleged is true. (Friedenthal § 5.19) In California, if a complaint is
verified, the answer not only must be verified but it cannot contain a
general denial. (Cal.Code.Civ.Proc.
§ 431.30(d).)
Affirmative Defenses
Even if all plaintiff's
allegations are true, defendant may be able to present additional facts
establishing a defense. In such a case, the defense is called an
affirmative defense and defendant must plead it in the answer in order
that plaintiff is aware of the allegations and has an opportunity to
prepare to meet them. Unless an affirmative defense is pleaded, it cannot
be proved at trial, although the court in its discretion, may give
defendant leave to amend the answer to add the defense at any time. One
can distinguish an affirmative defense from one that can be raised by
denial merely by determining whether the particular fact controverts one
of plaintiff's allegations or whether it deals with an entirely new matter
having nothing to do with whether plaintiff's claims are true or not. (Friedenthal
§ 5.20)
FRCP 8(c) lists 19 affirmative defenses that must be raised
specifically. This list is not exhaustive, however. In determining
whether a particular defense must be affirmatively raise, courts look to
statutes in the case of
federal
questions and to state practice in
diversity cases.
In general, defendants must raise affirmatively defenses that do not flow
logically from the plaintiff's complaint. E.g., a defense of the
Amendment of Pleadings
FRCP 15(c) provides that whenever "the claim or defense asserted in
the
amended pleading arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original pleading the
amendment relates back to the date of the original pleading." This
fiction of "relation back" is of great importance in avoiding the bar of
the statute of limitations. (Wright § 66) Rule 15(c) provides that if the
conditions stated in it are satisfied a defendant can be added to an
action by amendment even if the applicable statute of limitations has run
in the interim between the filing of the original complaint and the filing
of the amendment. (Wright § 59) Relation back is dependent on four
factors: (1) the basic claim must have arisen out of conduct set forth in
the original pleading; (2) the party to be brought in must have received
such notice that it will not be prejudiced in maintaining its defense; (3)
that party must or should have known that, but for a mistake concerning
identity, the action would have been brought against it; and (4) the
second and third requirements must have been fulfilled within the
prescribed limitations period. (Schiavone
v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18(1986))
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