Civil Procedure Notes Page 5

LAW 5301 (4 credits)
Professor Pedro A. Malavet

Civil Procedure Notes: Part Five

III. Pleading (Continued)

8. The Answer: 180-91


    1. 1) Deny, unless you have the information required to make an admission.
      1. Denial. Must be (1) based upon good faith intent to controvert (FRPC 8(b)); and (2) warranted by the evidence (FRCP 11(b)(4)).
      2. Lack of Information. Must be "reasonably based on a lack of information or belief." FRCP 11(b)(4).
      3. Multiple allegations. "When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder." FRCP 8(b).
    2. 2) Admitted. The allegation is accepted as factually correct. No evidence to the contrary may be introduced.
    3. 3) Failure to Deny. Deemed admitted, IF a denial was required. FRCP 8(d).
    4. 4) Imperfect or Improper Denial: "Failure to deny." Deemed admitted. But note that this is highly unusual at the pleading stage. David v. Crompton, p. 181.


    1. Policy
    2. Fairness (information control)
    3. Probability

a. In General: David v. Crompton Knowles I, FRCP 8, 10(b), 11, 11(b)(4), 180-85


Paragraph 5 of the complaint which alleges that Crompton designed, manufactured and sold a shredding machine, 600 AAZ Series 11, to Crown Products Corporation (Crown) [plaintiff's employer]. In its answer to the complaint Crompton averred that it was without sufficient knowledge or information to admit or deny the allegation and demanded proof. [FRCP8].

Crompton bases its proffered denial upon information which it claims it discovered during 1972. It alleges that the machine was designed, manufactured and sold by James Hunter Corporation (Hunter) prior to its purchase of Hunter, and that it did not assume liabilities for the negligent design, manufacture or sale of machines by Hunter prior to its purchase of Hunter's assets in 1961.[Rule8] [Honesty]

A party, however, may not deny sufficient information or knowledge with impunity, but is subject to the requirements of honesty in pleading. [Effect of improper denial] See 2A J. Moore, Federal Practice p 8.22 (1968). An averment will be deemed admitted when the matter is obviously one as to which defendant has knowledge or information. [Admission]

Crompton admits that it was aware that the machine was a Hunter product at the time it answered the complaint or very shortly thereafter. [Allegation] [Defense]

Crompton relies entirely on its claim that it has only recently discovered that the contract by which it purchased Hunter did not make it responsible for liabilities of this kind. [Control]

In Mesirow v. Duggan, supra, the court held that if the matter alleged in the averment was a matter of record peculiarly within the control and knowledge of the defendant, an answer that defendant was without knowledge or information sufficient to form a belief did not constitute a denial under Fed.R.Civ.P. 8(b). [Deemed]

In Mesirow v. Duggan, supra, the court held that if the matter alleged in the averment was a matter of record peculiarly within the control and knowledge of the defendant, an answer that defendant was without knowledge or information sufficient to form a belief did not constitute a denial under Fed.R.Civ.P. 8(b).

The averment of lack of knowledge or information sufficient to admit or deny the allegations of Paragraph 5 is not proper under these circumstances and plaintiff's allegation should be deemed admitted.

Consider Rules 8(d), FRCP11(b) FRCP11(b)(4), Rule10(b)


Note 3, page 183:

In paragraph 5 of his complaint, plaintiff alleged that, on the date of the accident, "a forklift or chisel, owned, operated and controlled by the defendant, its agents, servants and employees, was so carelessly managed ... that the same ... did come into contact with the plaintiff causing him to sustain the injuries more fully hereinafter set forth." The answer stated that "Defendant ... denies the averments of paragraph 5."

b. Affirmative Defenses: Gomez v. Toledo. This case was reduced to notes in the Updated 4th Edition of the casbook, but the notes are nonetheless useful. Please note that I have added a note below about Qualified Immunity (February 16, 2009).


    1. Rule 8(c). If it is expressly in the rule, you must raise it in the answer. If not,
    2. Substantive law. Is it expressly made an affirmative defense by the substantive law? Examples, a) Statute. US v. Bd. of Harbor Comm., p. 126, case footnote "b" (act of God defense to be pleaded and proved by the DEFENDANT). However, compare, b) Statutory Interpretation. AH Robins, p. 150, 154, (knowledge is an essential element of duty to disclose, it must be pleaded and proved by the PLAINTIFF, i.e., it is not an affirmative defense)
    3. Gomez v. Toledo. Qualified Immnunity is an "affirmative defense" for pleading purposes, i.e., DEFENDANT must plead it.

GOMEZ v. TOLEDO United States Supreme Court, 1980, CB-185

[By the way, this case is misnamed, it should be RIVERA v. CALERO, since the parties were Carlos Rivera-Gomez and Astol Calero-Toledo. Just a minor cross-cultural note].

In his answer, respondent denied a number of petitioner's allegations of fact and asserted several affirmative defenses. Respondent then moved to dismiss the complaint for failure to state a cause of action, see Fed.Rule Civ.Proc. 12(b)(6),[Aha!, but see FRCP 12(c) and 12(h)(2)].

In certain limited circumstances, we have held that public officers are entitled to a qualified immunity from damages liability under Sec. 1983. This conclusion has been based on an unwillingness to infer from legislative silence a congressional intention to abrogate immunities that were both "well established at common law" and "compatible with the purposes of the Civil Rights Act." Findings of immunity have thus been "predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it."

By the plain terms of Sec. 1983, two--and only two--allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.

Moreover, this Court has never indicated that qualified immunity is relevant to the existence of the plaintiff's cause of action; instead we have described it as a defense available to the official in question. Since qualified immunity is a defense, the burden of pleading it rests with the defendant. See Fed.Rule Civ.Proc. 8(c)

As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant.

The Curious Case of Qualified Immunity
(posted, February 16, 2009)

No specific defense has been so difficult to manage under the Federal Rules than Qualified Immunity. This stems from conflicts in policies encouraging the filing of suits and their resolution on the merits generally and the protection of civil rights plaintiffs in particular on the one hand, and protecting public servants, and the public whom they serve, from having government that is paralyzed by suits, on the other hand. The treatment of this defense also often discloses the frustration of the federal courts with liberal pleading and in being unable to weed out unmeritorious claims at an earlier stage.

The bottom line is still that Qualified Immunity is an affirmative defense and that the defendant accordingly bears the burden of pleading it under Rule 8(c) and Plaintiff is not obligated to anticipate it.

However, a number of "workarounds" have been deviced by federal courts, with some encouragement for "aggressive management" of such cases from the Supreme Court. Depending on your point of view, these are exercises of judicial imagination in using the Rules of Procedure to dispose of illegitimate cases sooner rather than later; from another perspective, they might be viewed as attempts to disfavor civil rights litigants and to privilege government actors by making tortured readings of the rules to impose heightened pleading specificity without an express authorization therefor.

In a series of old notes in the casebook, the casebook authors explained the "imaginative" responses as follows, referencing the Supreme Court's decision in Crawford-El in 1998 (AFTER transcribing the authors' text, I will explain why I believe that a reply is no longer available for this purpose, due to the redaction of Rules 7(a) and 8(a)).

4. Other rules may provide justifications for a more demanding attitude toward complaints, at least in cases like Leatherman. In Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), the Supreme Court emphasized that the district court "must exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings." It explained that there are "two primary options" available to accomplish this objective at the pleading stage:

[T]he court may order a reply to the defendant's or a third party's answer under Federal Rule of Civil Procedure 7(a), or grant the defendant's motion for a more definite statement under Rule 12(e). Thus, the court may insist that the plaintiff "put forward specific, nonconclusory factual allegations" that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment. Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring) .

In Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) (en banc), the court declared that judges should usually make the plaintiff file a reply to a defense of implied immunity in civil rights suits against individual government officials. In deference to Leatherman, it held that the court's heightened pleading rule should no longer require that plaintiff anticipate the defense in the initial complaint. But it also concluded that its "insistence on pleading with particularity translated to nothing more than a mere insistence that the complaint not plead conclusions," and it reasoned that it could protect public officials against the difficulties of the discovery process "without judicial additions to Rule 9(b)." This was possible, it reasoned, because Rule 7(a)Rule 7(a) authorizes a reply, which is "a vestige of pre-1938 common law and code pleading expressly preserved in the Civil Rules." Accordingly, when a public official includes an affirmative defense of qualified immunity in her answer, the district court should ordinarily require a reply. Moreover, the reply should include particulars; "because Rule 8(a) does not list Rule 7 replies, Rule 8(a)'s 'short and plain' standard does not govern Rule 7 replies." See also Reyes v. Sazan, 168 F.3d 158 (5th Cir.1999) (finding that the district court abused its discretion in failing to require plaintiff to file a reply after defendants raised qualified immunity because plaintiffs complaint was not pled with particularity).

5. The Supreme Court has taken a solicitous attitude toward qualified immunity claims by public officials in a number of contexts. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Court adopted a standard of "objective reasonableness," looking not to the official's actual state of mind but to whether the official's action violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. It later explained that ''[u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiffs complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct, 2806, 2816, 86 L.Ed. at 411 (1985). Besides making it easier for defendants to win on qualified immunity grounds before trial, is this solicitous attitude toward qualified immunity consistent with Leatherman? In Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), 759, the Court held that a plaintiff need not adduce "clear and convincing evidence" to overcome a motion for summary judgment based on qualified immunity. It explained that Harlow v. Fitzgerald, supra, made evidence of defendant's subjective intent irrelevant to the defense, but that defendant's intent might be critical to plaintiff's claim. On this "pure issue of fact there should be no heightened burden of proof, although plaintiff may not rely on ''bare allegations of malice" and must instead proffer evidence .


When Crawford-El was decided by the Supreme Court, and Shultea by the 5th Circuit, Rule 8(a) read as follows: "(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded." (Emphasis Added).

HOWEVER, the redacted version of 8(a) that is in your rule book avoids a laundry list of pleadings, and simply refers to "A pleading that states a claim for relief must contain:" Additionally, Rule 7(a) now refers to the reply as a pleading that may be ordered by the court (as I discuss in my updated note for the Rule 12 Exercises). I am sure that a well-motivated court may find a way to leave open the use of the reply to require more pleading specificity from the civil rights plaintiff, but the redaction makes the old technical arguments suspect.

As to Qualified Immunity, see generally, Erwin Chemerinsky, Federal Jurisdiction 546-558 (5th Ed. Aspen Publishers).

9. Counterclaims & Voluntary Dismissal, 191-201

a. Counterclaims: Wigglesworth v. Teamsters, FRCP 12(b), 13, 15(c)(2), 20 191-96 [Focus mostly on Wigglesworth].

The Rule 13(a) Compulsory Counterclaim test is the first of many "Transaction and occurrence" tests. What they all have in common, in the context of Civil Procedure, is the attempt to decide what constitutes a single controversy that should be tried as a single case or litigation.


WIGGLESWORTH v. TEAMSTERS LOCAL UNION NO. 592 United States District Court, Eastern District of Virginia (1975). CB-191.

[The] complaint avers that during meetings of defendant Local No. 592 held on 8 September 1974 and 13 October 1974, plaintiff was prevented from exercising his right to freedom of speech, and was denied his request to have the union membership informed of their rights as required by the Act. CB-192

defendants asserted a counterclaim alleging the following: On 3 December 1974, the day on which the complaint was filed, plaintiff called a press conference at which he accused the union of being dominated by the "Mafia" and that a certain past local union election had been "fixed." Defendants claim that these remarks constituted libel and slander.

The matter is now before the Court on plaintiff's motion to dismiss the counterclaim, inter alia, for lack of subject matter jurisdiction.

Defendants' initial contention is that the motion to dismiss for lack of subject matter jurisdiction is untimely and should therefore be denied. However, Rule 12(h)(3), [Like you don't know what 12(h)(3) says!!]

Defendants' counterclaim was filed pursuant to Rule 13, Fed.R.Civ.P. which distinguishes between "compulsory" and "permissive"

counterclaims. [Compulsory Defined] If the defendants' claim arises out of the transaction or occurrence that is the subject matter of the opposing party's claim, then, if certain other requisites not here pertinent are met, it is compulsory. [IF Compulsory=]By definition, compulsory claims are "ancillary to the claim asserted in the complaint and [sic] no independent basis of [f]ederal jurisdiction is required." [IF Permissive=] Alternatively, if the counterclaim is unconnected with the transaction out of which the primary claim arose, it is permissive, and independent jurisdictional grounds are required.

There is a substantial body of law which liberally defines the test of compulsoriness as requiring that there be not so much "an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them."

Defendants maintain that under this liberal test, their counterclaims meet the criteria set forth for compulsoriness, and therefore are properly within the Court's ancillary jurisdiction.

There is no indication that the alleged remarks at the press conference on 3 December 1974 had any relationship, logical or otherwise, to the events which transpired at certain past union meetings. CB-193.

[In BOSE] the issue to be decided was whether the counterclaims were barred by the statute of limitations, the resolution necessarily turned on whether the claims were compulsory or permissive.

[THE SAME EVIDENCE TEST]: the Court based its determination on whether the same evidence would support or refute the opposing claims. If the same evidence would substantially dispose of the issues raised by the opposing claims, then the counterclaims were compulsory; if not, then they were permissive.

[COMPARE the "occurrence" language in the following rules: Rule 15(c)(2), Rule 20, Rule 13.]


[If you cannot trust Wright and Miller, it's all over, really] (a) Are the issues of fact and law raised by the claim and counterclaim largely the same? (b) Would res judicata bar a subsequent suit on defendant's claim absent the compulsory counterclaim rule? (c) Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim? (d) Is there any logical relation between the claim and the counterclaim?

b. Voluntary Dismissal: DC Electronics v. Nartron, 196-201


DC Electronics v. Nartron Corp.

    • October 25, 1973 Claim filed under antitrust laws. TRO granted. Less than 10 days later, FRCP 65. TI hearing, Meridian dismissed with prejudice, DC withdrew its request for PI and District court dissolved the TRO.
    • November 16, 1973. DC and Nartron entered into a written stipulation extending the date for appellees to answer or otherwise plead to January 10, 1974.
    • January 7, 1974. DC filed Motion to Dismiss and Notice of Motion under 41(a)(2).
    • January 8, 1974. Notice of Voluntary Dismissal under Rule 41(a)(1)(i).


The sole issue presented by the parties to this appeal is whether a district judge can, in the exercise of his discretion, invalidate a notice of dismissal filed by the plaintiff under Rule 41(a)(1)(i), Federal Rules of Civil Procedure, prior to service "by the adverse party of an answer or of a motion for summary judgment...."

[In spite of all the work that had been done on the case] It is undisputed that at the time the notice of dismissal was filed, appellees had not served an answer or a motion for summary judgment. Subsequently, on January 9, 1974, appellees served and filed an answer to the complaint, affirmative defenses and a counterclaim. CB-197.

Rule 41(a) provides three distinct and separate methods whereby an action may be voluntarily dismissed. Significantly, while Rule 41(a)(2) contemplates the exercise of judicial discretion and the issuance of a court order in response to a motion by plaintiff, and Rule 41(a)(1)(ii) permits dismissal by the filing of a stipulation agreed to by all the parties who have appeared in the action,

[Compare this to the old Common Law Rule:] At common law plaintiff's right to dismiss his action without prejudice was absolute at any time before judgment. Fn.1 CB-199

In the instant case we note that the merits of the controversy were not before the court in their entirety due to the fact that appellant aborted the preliminary hearing after a short period of time, and the court did not rule on the motion for preliminary injunction. CB-199.

Other than to determine, should the question arise, whether an answer or a motion for summary judgment has in fact been filed prior to the filing of a notice of dismissal, a court has no function under Rule 41(a)(1)(i). The notice of dismissal filed with the clerk CB-199.

[But, it can only happen ONCE, FRCP 41(a)(1) "once dismissed"]

[If the merits have been joined, FRCP 41(a)(2) kicks in, with discretion].

10. Amendments: 201-210

a. Permission to Amend, David v. Crompton Knowles II, FRCP 12(c), 15, 15(a), 15(c), 201-05


    1. Once as a matter of course (20-days)
    2. By leave of court
    3. By stipulation

FRCP 15(a), annotated:

(a) Amendments. A party may amend the party's pleading [1] once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days [see Rule 6] after it is served. Otherwise a party may amend the party's pleading [2] only by leave of court or [3] by written consent of the adverse party; and *leave shall be freely given when justice so requires*.

While I do not like to clutter your messages with transcriptions of the Federal Rules, I wish to point out how you should break-down the rules into more manageable sections.

David v. Crompton

    • 1961 Machine manufactured and sold by Hunter to Crown
    • Nov. 27, 1969 Claim arose
    • Jan. 1971 Complaint Filed
    • March 1971 Crompton received information about the machine from pl.
    • June 1971 Crompton Examined the Machine
    • Oct. 1, 1971 Answers to interrogatories
    • Nov. 27, 1971 2 yr. statute of limitations had run!
    • 1972 Evidence Discovered?


Crompton relies upon Fed.R.Civ.P. 15(a) which provides that leave to amend an answer should be freely given when justice requires. The Federal Rules clearly favor a liberal attitude towards amendments.

Among the reasons commonly cited for denying permission to amend are [1] that the amendment will result in undue prejudice to the other party, or [2] that it has been unduly delayed.

Plaintiff is now barred from instituting this action against another party. The running of the statute is the serious type of prejudice which may justify a denial of defendant's motion to amend his answer.

In its answer to interrogatories and in its third-party complaint Crompton gave a clear indication that it had assumed Hunter's liabilities in cases such as this. It referred to Hunter's agent as "defendant's sales representative" and averred that the machine "was received from defendant".

Jacobs v. McCloskey & Co., 40 F.R.D. 486 (E.D.Pa.1966) to support its motion to amend. In that case the district court permitted a defendant to amend its answer to deny ownership of a building which belonged to its wholly owned subsidiary. The effect of the amendment was to deny recovery from one defendant since the statute had run. The action, however, had been filed only nine days prior to the expiration of the statute and the answer was not filed until after the statute had run.

Plaintiff in the present case was certainly lulled by defendant during the period between the filing of the complaint and the running of the statute, and it is unquestionable that he has been prejudiced by the delay.

b. Relation Back: Swartz v. Gold Dust Casino, FRCP 12(c), 56, 15, 15(c), 205-10


Defendant Cavanaugh Properties has moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), on the ground of the two-year Nevada statute of limitations applicable to personal injuries caused by negligence.

As a general rule, the use of a fictitious name to identify a defendant is not favored in the Ninth Circuit; however, it is permissible where the identity of the alleged defendant is not known at the time of the filing of the complaint.

[Under Rule 15(c)] There are three requirements, (1) the claim asserted in the amended pleading must have arisen from the conduct, transaction or occurrence set forth in the original pleading; (2) the new defendant must have received notice of the action within the limitations period; and (3) the new defendant should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him."

The claims asserted in the amended complaint herein arose from the same occurrence set forth in the original complaint, namely the fall of Mrs. Swartz on the staircase.

Whether Mrs. Swartz's injuries resulted from negligence in the design or the installation or the maintenance of the stairway does not change the fact that all the claims in both pleadings arose from her fall. [So the court did have a *little* hurdle to jump over beyond the occurrence].

The notice of the institution of the lawsuit required by Rule 15(c) need not be formal.

In the instant case, Mr. John Cavanaugh received a copy of the proposed amended complaint within the statutory period. In addition, the dual capacities of Mr. Cavanaugh as president of the corporate defendant and as a general partner of the partnership defendant supports the premise that the partnership had such notice of the lawsuit within the limitations period as should have induced it to commence investigations and other preparations to defend itself.

The unavailability of the statute of limitations as a defense does not by itself constitute prejudice. Undue difficulty in defending the lawsuit by reason of the passage of time would be prejudicial. Specific prejudice must be shown. No such showing has been made herein.


    • May 4, 1979 Accident
    • Aprl 30, 1980 Case Filed
    • Aug. 21, 1980 Interrogatory Answers identify Cavanaugh Lease
    • Sept. 23, 1980 Letter Report
    • Dec. 9, 1980 Plaintiffs identify Rosen
    • Feb. 19, 1981 Leave to Amend to include Cavanaugh
    • April 1, 1981 Order, complaint alleges only negligence in maintenance
    • April 9, 1989 Plaintiffs' motion for leave to amend to add Cavanaugh and new claims
    • May 7, 1981 Leave granted
    • May 8, 1981 Amended Complaint Filed