Chapter 4

PLEADING

ChapterScope
This Chapter covers pleading, the process by which the parties to a litigation spell out their claims and defenses. The emphasis in this chapter is on the pleading provisions of the Federal Rules. These exemplify the modern, non-technical approach to pleading, and have served as the model for the pleading provisions of many states. The most important concepts in this Chapter are:

• Two types: In most instances, there are only two types of pleadings in a federal action. These are the complaint and the answer. The complaint is the document by which the plaintiff begins the case. The answer is the defendant’s response to the complaint.
  • Reply: In some circumstances, there will be a third document, called the reply. The reply is, in effect, an “answer to the answer.” Most often, a reply is allowable if the answer contains a counterclaim (in which case a reply is required).
• Elements of complaint: There are three essential elements which a complaint must have:
  • Jurisdiction: A short and plain statement of the grounds upon which the court’s jurisdiction depends;
  • Statement of the claim: A short and plain statement of the claim showing that the pleader is entitled to relief; and
  • Relief: A demand for judgment for the relief (e.g., money damages, injunction, etc.) which the pleader seeks.
• Defenses against validity of complaint: Either in the answer, or by separate motion, defendant may attack the validity of the complaint in a number of respects. Grounds for attack include lack of jurisdiction, insufficiency of service of process, and failure to state a claim upon which relief may be granted.
• Affirmative defenses: There are certain defenses which must be explicitly pleaded in the answer, if D is to raise them at trial. These are so-called “affirmative defenses.” (Examples: contributory negligence, fraud, res judicata, statute of limitations, and illegality.)
• Counterclaim: In addition to defenses, if D has a claim against P, he may (in all cases) and must (in some cases) plead that claim as a counterclaim. If the counterclaim is one which D is required to plead, it is called a compulsory counterclaim. If it is one which D has the option of pleading or not, it is called a permissive counterclaim. A counterclaim is compulsory if it “arises out of the transaction or occurrence that is the subject matter of the [plaintiff’s] claim.”
• Variance of proof from pleading: The Federal Rules allow substantial deviation of the proof at trial from the pleadings, so long as the variance does not seriously prejudice the other side.