Saturday, May 17, 2014

RULE 8: GENERAL RULES OF PLEADING (Civil Procedure Outline)

Rule 8(a) Claim Must Contain:
(1) short and plain statement on jurisdiction
(2) short and plain statement of claim
(3) relief sought (demand for judgment)
Rule 8(b) Defenses
·         In short and plain terms state defenses to each claim
·         Admit or deny the averments (facts)
o        No knowledge as to truth
o        Must meet substance of what denying
o        Types of denials:
§         Specific- only part of the pleading
·         If pleading is going to deny only part of an allegation, he should specify this- Rule 8(b)
§         Complete- all of the complaint denied
§         General denial- the entire complaint except for specified paragraphs
Rule 8(c) Affirmative Defenses
  • Must be plead in the answer if plan to raise at trial
  • An affirmative defense is an new matter that the def. must prove in order to avoid Pl.’s claim
  • Any allegation not denied is deemed admitted
  • If mistakenly designate a defense as a counterclaim (or vice versa), will be considered proper designation
  • Affirmative Defenses:
  1. accord and satisfaction
  2. arbriation and award
  3. assumption of risk
  4. contributory negligence
  5. discharge in bankruptcy
  6. duress
  7. estoppel
  8. failure of consideration
  9. fraud
  10. illegality
  11. injury by fellow servant
  12. laches
  13. license
  14. payment
  15. release (from liability)
  16. res judica (2nd claim preclusion)
  17. statute of frauds
  18. statute of limitations
  19. waiver
  20. any other matter constituting an avoidance or affirmative defense (What does this mean? Up to interpretation- see Gomez case)- see outline for explanation
Rule 8(d) Failure to Deny
  • If fail to deny, averment considered admitted
    • exception: amount of damages
  • If fail to deny averment that doesn’t require one, considered denied or avoided
Rule 8(e) Concise, Direct; Consistent
(1) Each allegation shall be “simple, concise and direct.” 
·         No technical forms or pleadings or motions required
(2) Pleadermay make as many separate claims as wants in pleadings
Rule 8(f) Substantial Justice
Pleadings shall be construed to promote substantial justice

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