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Civil Procedure II
Washington & Lee University School of Law
Parness, Jeffrey A.

o Affirmative Pleadings
o       In modern procedure, pleading only serves the function of notice. It used to serve as a way of laying out the facts and issues, but this role is now filled by things like discovery
o       Body
o       FRCP 7 – Pleadings Allowed; Form of Motions
§         Pleadings
·        Complaint – affirmative
·        Answer – is responsive, can also be affirmative
·        Reply to a counterclaim – responsive
o       Note: counterclaim is within the answer, this is the affirmative portion of the answer
o       Not called “answer”, but rather” reply”, because it is the next step
·        Answer to a crossclaim (if the answer contains a cross claim)
·        Third Party Complaint
·        Third Party Answer
o       Affirmative pleading = pleading including causes of action (otherwise called claims for relief, wrongs, etc)
o       Complaints
§         FRCP 8 – below
§         In federal and most state systems, no need to show Personal Jurisdiction or venue in the complaint ( but FRCP 8 does require Subject Matter Jurisdiction be pled in the complaint)
§         This is what begins a federal civil case
·        Some state courts are different, require service of process rather than just complaint
o       Service = notice of filing + complaint + summons
o       Sometimes courts even require a time period btw notice of upcoming complaint and actual filing
§         The hope is that they will settle in the meantime – save docket space
§         Insurance companies are required to act for their clients on good faith… If there’s a reasonable settlement, they cannot drag their feet
§         Lots of claims get resolved in settlements for these reasons, before a suit is ever commenced
·        Question of what begins the suit is key when looking at statutes of limitation
§         Theory of the case can change post complaint
§         Complaint can even contain alternate theories of the case
§         So – complaint is only the beginning – lots can change
§         State vs Federal – key differences
·        Federal – need to show Subject Matter Jurisdiction in the complaint
·        Most states – no need to show Subject Matter Jurisdiction
o       Answers
§         Defendant’s response to the complaint
§         Answers can be altered just like complaints
o       Special Affirmative Pleading Laws
§         FRCP 9 – Pleading Special Matters – this is a list of some case types that require heightened pleading
·        FRCP 9(b) – circumstances of fraud must be pleaded with particularity, but condition of mind can be plead generally. Fraud has a very high standard… it is a disfavored type of claim
·        For contract claims, plaintiff needs to simply say all conditions precedent have been met, and then defendant must allege any unmet conditions it identifies
§         Heightened pl

tandard is met
·        See FRCP form 9 for an example of this
§         3 – a demand for judgment for the relief the pleader seeks
o       So, complaint in many cases will not contain all of the factual bases for the claim. These can be left to discovery
o       This is a very low pleading standard, easy to meet
o       Conley v. Gibson – illustrates FRCP 8(a)(2). Application of “short and plain statement of the claim showing that the pleader is entitled to relief” requirement
§         Casebook pg 344
o       Standardized complaint forms
§         Some state courts provide forms for certain types of claims – state courts may even require forms in certain types of claims
§         FRCP does not require forms in any context, but does provide forms that will be sufficient
§         Fact Pleading
·        Between heightened pleading and notice pleading
·        Requires more than “short and plain statement”, material facts must also be included
·        Some states require fact pleading
o       Responses to affirmative pleadings
Responsive pleading = pleading responding to the requests for relief in the affirmative pleading