Civil Procedure


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.

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 raised, 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))

Print This Page Email Link to This Page © Republish or License This

© 2015 by and Craig A. Smith

Back to top of page.