Rule 8: General Rules of Pleading: Claim for Relief; Defenses; Admissions and Denials; Affirmative Defenses; Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

Question 1

What is an affirmative defense? (Q)

Answer 1

An affirmative defense alleges facts in addition to those alleged by the plaintiff that will limit or eliminate the defendant’s liability. The federal civil rules list a number of affirmative defenses, including the statute of limitations, waiver, and fraud.

Question 2

In a federal civil case, must a party plead its affirmative defenses? (Q)

Answer 2

Yes. A party must plead any affirmative defenses in the answer or other responsive pleading. An affirmative defense that is not pleaded will be waived.

Question 3

In federal civil litigation, what is a pleading? (Q)

Answer 3

A pleading is a formal document, filed with the court, in which a party asserts its claims or defenses. The pleadings authorized by the Federal Rules of Civil Procedure are:

the complaint,
the answer to the complaint,
an answer to a counterclaim,
an answer to a crossclaim,
a third-party complaint,
an answer to a third-party complaint, and
a reply to an answer.

Question 4

In federal civil litigation, what is a complaint? (Q)

Answer 4

A complaint is the pleading in which the plaintiff invokes the court’s jurisdiction, asserts claims against the defendant, and demands relief.

Question 5

In civil litigation, what is an answer? (Q)

Answer 5

An answer is the pleading in which the defendant responds to the plaintiff’s claims, asserts any defenses, and asserts any counterclaims against the plaintiff.

Question 6

When is a federal civil case commenced? (Q)

Answer 6

A federal civil case is commenced when the plaintiff files the complaint with the court.

Question 7

What is meant by the term notice pleading? (Q) (GG)

Answer 7

Notice pleading means telling the other party enough about the claim or defense that the party can understand the nature of the allegations and formulate a response.

Question 8

Are technical forms of pleading required in federal civil cases? (Q)

Answer 8

No. Technical forms of pleading are not required in federal civil cases. In other words, a party may use plain language to describe its claims or defenses. (Q)

Question 9

In general, how much factual detail must a plaintiff include in the complaint to satisfy the federal pleading requirements? (Q)

Answer 9

In general, a federal complaint must contain enough facts to state a claim that is plausible on its face if those facts are assumed to be true This requires more than mere conclusions of fact or law. Nonetheless, pleadings typically do not need to include great factual detail.

Question 10

In a federal pleading, may a party assert alternative or inconsistent claims, defenses, or demands for relief? (Q)

Answer 10

Yes. A party may plead alternative or inconsistent claims, defenses, or demands for relief in the same pleading. The party’s ultimate grounds for recovery or defense will depend on the final development of the facts at trial.

Question 11

In a federal civil case, may a court award relief that was not demanded in the pleadings? (Q)

Answer 11

Yes. A pleading that states a claim for relief must contain a demand for the relief sought. However, the court may award any relief that it deems appropriate, even if that relief was not identified in the pleadings.

Question 12

In a federal civil case, what is a general denial? (Q)

Answer 12

A general denial is a statement in a responsive pleading that denies all of the allegations in the opposing party’s pleading, including the grounds for the court’s jurisdiction.

Question 13

What is a specific denial? (Q)

Answer 13

A specific denial is a statement in a responsive pleading that denies particular allegations in an opposing party’s pleading. Specific denials are used if the responding party intends to admit some allegations and deny others. The responding party may either deny specific allegations or make a general denial of all allegations except those that it specifically admits.

Question 14

If a party intends to deny only part of an allegation, must the party admit the remaining part? (Q)

Answer 14

Yes. If a party intends to deny only part of an allegation, then that party must admit whatever part of the allegation is true and deny the rest. In other words, a party may not deny an entire allegation merely because some part of it is untrue.

Question 15

In a responsive pleading, how should a party respond if the party does not know whether an allegation is true or false? (Q) (GG)

Answer 15

A party that does not have enough knowledge or information to determine the truth of an allegation must say so. This has the same effect as a denial. 8b5

A similar issue can arise if a party believes that an allegation is false but lacks sufficient knowledge to deny the allegation definitively. In this situation, courts often allow the defendant to deny the allegation so long as the defendant has enough information to form a good-faith belief that the allegation is false.

Question 16

In a federal civil case, what is the procedural effect of a party’s failure to deny an allegation in an opposing party’s pleading? (Q)

Answer 16

If a responsive pleading is required, and the responding party does not deny an opposing party’s allegation, then that allegation is deemed to be admitted. However, this rule does not apply to any allegation regarding the amount of damages.

Question 17

The plaintiff sued the defendant in a federal diversity case, alleging that the defendant committed fraud in the sale of a house. One of the factual allegations in the complaint stated, “At the time of the sale, the plaintiff was about to be evicted from her apartment and therefore had an urgent need to buy a house.” The defendant did not intend to plead a general denial. However, the defendant had no knowledge about the plaintiff’s housing arrangements at the time of the sale.

In answering the complaint, how should the defendant respond to this allegation? (Q)

Answer 17

The defendant should respond that he does not have knowledge or information sufficient to form a belief as to the truth of this allegation. In responding to a pleading, a party must admit or deny the allegations contained in that pleading. If a party lacks the knowledge needed to form a belief about the truth of an allegation, then the party must say so, and this has the same effect as a denial.

Here, the defendant does not know whether the plaintiff was about to be evicted or whether she needed housing urgently at the time of the sale. Thus, the defendant should state in the answer that he does not have enough knowledge to form a belief about whether this allegation is true. This will have the same effect as if the defendant had denied the allegation.

Question 18

What is a claim in a civil case? (Q)

Answer 18

A claim can be defined as a statement by the pleader that another party owes the pleader some relief. The most common example is a claim by a plaintiff against a defendant.

Question 19

What has to be in a complaint? (GG)

Answer 19

(1) a statement of the basis for the court’s jurisdiction
(2) a statement of the relief the plaintiff is seeking, and
(3) “a short and plain statement of the claim showing that the pleader is entitled to relief”

8a

Question 20

What rule did Ashcroft v. Iqbal (2009) add? (Q) (GG)

Answer 20

Under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint will only survive a motion to dismiss if it alleges nonconclusory facts that, taken as true, state a claim to relief that is plausible on its face.

Question 21

If a defendant fails to deny an accusation in a claim, are they seen as admitting to that claim? (GG)

Answer 21

Yes. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. 8b6

Question 22

Must a plaintiff make consistent pleadings? (GG)

Answer 22

No. The plaintiff may assert as many alternative versions of the claim as she has evidence to support, may include both legal and equitable claims in the same complaint, and may assert different versions of a claim “regardless of consistency.” 8d3

Question 23

Is a plaintiff allowed to plead multiple theories even if only one of them might be true? (GG)

Answer 23

Yes. Pleading multiple theories is permissible even if only one of them may be true. 8d3

Question 24

Does a plaintiff with multiple theories have to plead the one with the most evidentiary basis? (GG)

Answer 24

No. Under rule 8d3 the pleader doesn’t have to make that choice among possible versions of her claim.

Question 25

What is a responsive pleading? (Q)

Answer 25

A responsive pleading is a pleading that is filed in reaction, or response, to another party’s pleading. The most common responsive pleading is the answer, which responds to the complaint. A party may also plead in response to a crossclaim, a counterclaim, a third-party claim, or an answer.

Question 26

How long does the defendant generally have to answer the complaint after service of process? (Q)

Answer 26

Generally, within 21 days after the plaintiff serves the summons and complaint on the defendant, the defendant must file the answer with the court and serve it on the plaintiff. If the defendant waives service of process, this time is extended to 60 days after the waiver request was sent, if the request was sent to the defendant within the United States.