PLEADING

2. Notice-giving: Therefore, the main function left to be performed by the pleadings is that of giving enough notice to the defendant that he can understand the basic nature of the claim, and start to prepare a defense. Cf. Wr., 468.

B. General principles: Here are some of the general principles behind federal pleading:

1. No “theory of pleadings”: The Federal Rules do not require, as many Codes do, that the plaintiff confine himself to one particular “theory of the pleadings.” If plaintiff is entitled to relief, he is not to be thrown out of court because his lawyer chose an incorrect legal theory when drafting the pleadings. The ease with which pleadings may be amended, even during trial (see infra, pp. 193-198) is one indication of the abandonment of the “theory of the pleadings” requirement.

2. Substantial justice: The pleadings are to be “construed so as to do justice.” Rule 8(e). This replaces the common law principle that the pleadings are to be construed “most strongly against the pleader.” Wr., 471.

3. Dismissal: The complaint can be dismissed for “failure to state a claim on which relief may be granted” (Rule 12(b)(6)). But it’s relatively difficult for the defendant to satisfy this standard (though not as hard as it was before two Supreme Court decisions dating from 2007 and 2009). If the court, after assuming that all factual allegations in the complaint are true, cannot “plausibly infer” that the defendant is liable, the court will dismiss the complaint for failure to state a claim. For more about dismissals for failure to state a claim, including this “plausibility” rule, see infra, pp. 179-186.

C. Mechanics of pleadings:

1. Kinds of pleadings: In most instances, only two pleadings, a complaint and an answer, are allowed under the federal system. This represents a change from the common law system, in which the parties traded pleadings ad infinitum, until a single issue for trial was formulated.

a. Reply: A reply, which is an “answer to the answer,” is allowable in two circumstances: (Rule 7(a))

i. where the answer contains a counterclaim which is identified as such (in which case a reply is required); or

ii. by order of the court.

Note: Where the answer contains a counterclaim, the reply must address itself solely to the allegations of the counterclaim, and must not discuss the defensive allegations contained in the answer. Wr., 456.

2. Verification of pleadings: Whereas the Codes often required that the pleadings be verified, i.e., sworn to, Rule 11 states that the pleadings need not be verified unless this is required by statute or rule.