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Civil Procedure II
University of Kentucky School of Law
Schwemm, Robert G.

Civil Procedure II

Spring 2016



Background and History

The role of pleading in English-American law
Common-Law Courts (1300-1850)

Various writs/causes of action

Pick only one: if wrong, case dismissed
Usually only one P v. one D
Only relief available = money damages

Many Rounds of Pleading

Until one issue (law or fact) remains
So, no inconsistent statement/positions

Use of jury as fact-finder

Usually only for money damages (common-law courts)

Compare: Equity (Chancellory) + other courts

Code Pleading (1850-1940)

“Statement of facts constituting a cause of action”
Facts v. legal conclusions

D “negligently” drove against P
P gave “valuable consideration” to P
D “discriminated illegally” against P

Rule Pleading (1940-today)

Rule 2: one court + one form of action
Goal = simplify pleading

Get past pleading stage to discovery/summary judgment/trial
Rule 84 + the forms

Modern state-court pleading rules

Pleading Under the Federal Rules

In General

Overall theme = simplify: Rules 1 and 8(d)-(e)

Rule 1: Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Rule 8(d)-(e): General Rules of Pleading

(d): Pleading to Be Concise and Direct; Alternative Statements; Inconsistency

In General. Each allegation must be simple, concise and direct. No technical form is required.
Alternative Statements of a Claim or Defense. A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them if sufficient.
Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

(e): Construing Pleadings. Pleadings must be construed so as to do justice.

Pleading allowed: Rule 7(a): Pleadings Allowed

(a): Pleadings. Only these pleadings are allowed:

a complaint;
an answer to a complaint;
an answer to a counterclaim designated as a counterclaim;
an answer to a crossclaim;
a third-party complaint;
an answer to a third-party complaint; and
if the court orders one, a reply to an answer.

Format Requirements: Rules 10 and 11

10: Form of Pleadings

Caption; Names of Parties. Every pleading must have a caption with the court’s name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.
Paragraphs; Separate Statements. A party must state its claim or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.
Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.

11: Signing Pleadings; Motions, and Other Papers; Representations to the Court; Sanctions

Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, email address, and telephone number. Unless a rul

directives; and order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

Against a represented party for violating Rule 11(b)(2); or
On its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

Inapplicability to Discovery. This rule does not apply to disclosure and discovery requests, responses, objections, and motions under Rules 26 through 37.

The Complaint: Rule 8(a)(1)-(3): General Rules of Pleading

(a): Claim for Relief. A pleading that states a claim for relief must contain:

a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim need no new jurisdictional support;
a short and plain statement of the claim showing that the pleader is entitled to relief; and
a demand for the relief sought, which may include relief in the alternative or different types of relief.


Rule 8(a)(2): “short and plain statement of the claim showing that the pleader is entitled to relief”
Rule 9: pleading special circumstance (e.g., fraud)