Civil Procedure

Answers/Rules 8(b) and 8(c)

September 05, 2020 Thomas
Civil Procedure
Answers/Rules 8(b) and 8(c)
Show Notes Transcript

This episode is a tutorial about the defendant's answer to a plaintiff's complaint. I discuss the obligation to admit or deny the allegations of the plaintiff's complaint. And I discuss affirmative defenses. I also briefly mention counterclaims, cross-claims, and third party claims even though those topics are the subject of a separate episode.

Speaker 1:

Welcome to the civil procedure podcast. I am your host Thomas Maine. This episode is about answers are mostly about rules, eight B and a C of the federal rules. But I want to begin with a reference to rule 12 a because that's what kicks it all off the response to the complaint. According to rule 12 a is due 21 days from service of that complaint, or if service is waived, then the response to the complaint is due 60 days from the date of the request for waiver of service. So remember then that 12 a gives us the timeframe for determining when the response to the com complaint is due. Now, by the way, you can get an extension of that time period under rule six B, but you can't count on this a couple of times already. I have referred to a response to a complaint. I have not been using the word answer in that context. Instead, I've been that the response to a complaint is due either 21 days or 60 days from those triggering events. The response to the complaint could be a rule 12 motion, like a 12, B six, for example, that's one way to spawn to a complaint within that short timeframe or your response to the complaint during the timeframe could be the filing of an answer. Understand then that, because that was an, or you might have a case where there's never an answer. There may not be an answer in a case where a defendant is served with a complaint and the defendant within that timeframe of 21 days or 60 days files a rule 12 motion, like a 12[inaudible], for example. And in that circumstance, if the rule 12 motion is granted, there will never be an answer. Now rule 12 motion is denied in a situation like that. Then according to 12, a still the answer is due 14 days thereafter. So that covers if or when you are answering. Now, let's talk about what is in an answer. Answers include as many as three different types of content. One of the things that every answer always includes is admissions and denials. And we'll talk about that shortly, but that's one thing you'll find in every answer. The second thing you'll find in almost all answers are affirmative defenses. That's the second kind of content that we're gonna discuss. And affirmative defenses would include your 12 be objections, but not only those, the third type of content that you might see in an answer is the assertion by the defendant of claims of its own. And these are mostly beyond the scope of this episode, but let's just flag them so that you see where they fit in this larger picture. Defendants might have claims against the party who was suing them and we call those of course, counter claims or defendants might have claims against a co defendant. And we call those cross claims or defendant might have claims against some unnamed entity. And we call those claims third party claims or rule 14 claims or IM pleater claims all are synonyms, counterclaims, cross claims, third party claims. These are claims that can be asserted under certain circumstances. And when those circumstances are present, all of the usual pleading rules apply to those claims, any of the pleading rules that you've learned so far in the course, and any of the pleading rules that you are going to learn later in the course, the are claims close quote, that's a term of art in the federal rules of civil procedure. And what we need to remember here in this episode about answering is that they can appear in and answer moreover, counterclaims, cross claims, and third party claims need to be answered because they are claims and claims require a response. This episode is really about the other two types of content that appear in answers. And again, those are the admissions and denials and the affirmative defenses. And these show up in federal rule eight B and a C respectively. So when a defendant is facing a claim rule, eight B requires that defendant to admit or deny each of the allegations in the plaintiff's complaint. Now, there is a reference to a general denial in federal rule eight BK, three that's silly. You can ignore it rather than a general denial you'll need to make specific denials, which means you need to respond to each allegation in the plaintiff's complaint separately. If the complaint has 124 paragraphs, then you should imagine in your mind, an answer with 124 numbered P that correspond to the 124 paragraphs in the plaintiff's complaint by correspond. I mean that the defendant is admitting or denying what is in each of those paragraphs of the plaintiff's complaint. As a very reef aside here, your realization, as you're focusing here on what the defendant's obligation in answering entails, this realization might lead you to rethink some of your strategy in drafting a complaint. I always want you thinking strategically there is a seamless web of rule rules. So whenever we learn more about the procedural system, it gives us a more sophisticated sense of the other components of that system and how they interact. So let's focus on this defendant's obligation to admit or deny each of those paragraphs in the plaintiff's complaint as an initial matter. I want to make sure that your intuition is adversarial enough here as an advocate. If I have an obligation to admit or deny, why would I admit anything? I want to make them prove everything? I don't wanna admit that I'm the plaintiff's work supervisor. Even if I am the plaintiff's work supervisor, I don't wanna admit that I was driving the car that hit the plaintiff. Even if I was driving the car that hit the plaintiff, I don't even wanna admit that my companies headquarters are in bur Burlington, Vermont, even if my company's headquarters are in Burlington, Vermont. Now, why wouldn't I want to admit anything. There are really two clusters of reasons why I don't want to admit anything. The first cluster is that I want to make it harder for my opponent. And you could say that's because I'm a jerk, or because I'm competitive. If you wanted to put a slightly less pejorative spin on it, that's one reason why I don't want to admit anything, make them use the discovery request, make them go through the steps, necess to prove every single thing. Why would I help them prove their case? The second reason is that I'm neurotic and paranoid or to put a slightly more positive spin on it. I'm an experienced litigator. And what experience teaches one about litigation is that things are not always, as they seem, what looks like a straightforward fact about who was driving the car or who is the jaw supervisor on the side, or even where is a corporation's headquarters, as it turns out sometimes six months, nine months, 18 months into a case you find out that something is not exactly as it initially appeared. And moreover, sometimes things that seem fairly incidental or not even terribly important in the case are all of a sudden front and center and terribly significant in the course of litigation. And in those circumstances, something that I might have admitted thinking it was fairly trivial or incidental to the matter if it turns out to be important. Well, maybe there is a reason why I could deny it or to admit it only in part to make sure that it doesn't hurt me anymore than it has to the point here with this second reason is that over the course of litigation, we learn more about the case. And as you learn more about the case, new wants subtlety, complexity tends to surface. And that's not obvious when you're answering a complaint sometimes just weeks or even days after the complaint is filed. And you can imagine this is especially problematic, especially dangerous for the good paranoia, neurotic litigator in circumstances where your client wasn't, even at the scene, your client didn't prepare all of the reports or didn't observe the event that's being litigated or didn't make any of the decisions that led to the event that's being scrutinized in the litigation. And even when you, our client was at the scene and was a major player in the events that are described in the complaint, who's to know for sure whether your client's memory is gonna change a bit over time, maybe they're suffering from post-traumatic stress, or maybe they're blinded by emotion or something that is preventing them from being able to a convey to you all that happened at the scene of the event or leading up to that particular event. So all of this combines to make us nervous as lawyers, when responding to a complaint and meeting this obligation of admitting or denying all of the allegations in the complaint. My instinct is deny everything until I know more. And I want your intuition to start at that point as well. Now that we have your intuition calibrated, know that the rules are trying to turn that instinct, that intuition down, turn it off. And of course the rules are trying to turn that down. That sort of behavior is what makes litigation nasty and expensive and tedious and annoying. So how do the rules then moderate the, this instinct? How do they turn it down? And it's a combination of requiring good faith in eight B of the federal rules, and also your obligation under rule 11, rule 11, impose an obligation of honesty in pleading. It requires fourth rightness after an inquiry, that's reasonable under the circumstances. So how do the rules moderate that intuition that leads us to want to admit nothing answer? Well, these obligations of good faith and honesty and candor, the drafters of the federal rules. Imagine that answers would narrow the issues for litigation. Just like the complaint gives the defendant notice of the claims. Well, the answer is supposed to give the plaintiff notice of what is going to be contested. And there are consequences for defendants who go overboard. One consequence is annoying. The judge damaging their reputation. Judges have discretion, not just here but forever. And we wanna have a good reputation among judges before whom we appear. Another consequence is sanctions. We could be punished for being too aggressive. So let's get specific. Imagine an allegation in paragraph, let's say two paragraph, 72 of a plaintiff's complaint says that the defendant designed and manufactured a widget that the defendant knew was defective. And the defendant is your client. And we're filing an answer and we have an obligation to admit or deny each of the paragraphs in the plaintiff's complaint, including this paragraph 72. So you ask your client, did, did you guys design this product? And the defendant says, yes. And then you ask your client, did you guys manufacture this product? And the defendant says, well, yes, well, no, well, we hired another company to do it for us, but yeah, we paid them and told them exactly what to do. And then you go back to the complaint, paragraph 72 again. Okay. And they say that you knew it was defective. Did you guys know this was defective? And the client says, well, we knew that it could melt under extreme temperatures, but it would've cost us three times as much to avoid that risk and products like this. Typically aren't made to withstand extreme temperatures. So we made this same kind of decision that many other companies who make products like this did, and we made it out of a product that, yeah, we knew it could melt under extreme temperatures. Okay. So what do we do with paragraph 72 of the plaintiff's complaint? Because part of paragraph 72, isn't true. Can I deny all of paragraph 72 answer? No. When part of an allegation is true and part of it isn't true. Eight B four of the federal rules says that you should admit the part that you can admit and then deny the rest. Therefore, in paragraph 72 of the answer, you might admit that the defendant designed the model X, Y, Z widget, and deny the remaining allegations of that paragraph that would notify the plaintiff that you in fact designed, but you were challenging the manufacturer of the product and your knowledge of any defect in the product. But remember also our general paranoia as a litigator, when answering, depending on how that 72 of the plaintiff's complaint is worded, I want to be careful that I'm not admitting that my product is even the product that the plaintiff was using. Who knows what we're gonna find out in discovery. Maybe this is a counterfeit version of our product, or maybe the product that the play plaintiff was using was not even the product that has anything to do with our company. And for that reason, you might imagine a big difference between a paragraph 72 of the complaint that says the plaintiff was injured by a product designed by the defendant. He, I have no idea about that, but if instead, paragraph 72 says something along the lines of defendant designs and manufacturers, the model X, Y, Z widget. Well, yeah, we, we can admit the design. We do indeed design something called the model X, Y, Z widget. But you want to be careful exactly what you're admitting, because again, how that's worded, you might be admitting to far more than, you know, in week two of this particular litigation, in all likelihood, you haven't inspected the product that supposedly injured the plaintiff, you haven't asked the plaintiff questions about how they know it was your product that in fact, injured them. So all of that uncertainty is lurking here whenever we are admitting or denying or admitting in part the allegations of a complaint. So you should see that there are a couple of things going on here. One is our adversarial instincts, where we're looking to shade to qualify to limit. We don't really wanna admit things that we sort of could admit. And under those circumstances, our risk in being too aggressive is that some six months from now is gonna be turning to us and saying, why on earth did you deny that you were the manufacturer of this widget? And we need to anticipate that question being posed to us and analyze our comfort with our answer to that question. If we're embarrassed, then we need to revisit our strategy. The second thing that's going on here is not just our adversarial instincts, trying to shade and limit our exposure, but is a true lack of knowledge. If we don't know whether our product is the product that the plaintiff was using. Well, that's no out about just our adversarial instincts. There's more at work there. Under those circumstances, there is a genuine lack of knowledge and eight B five of the federal rule says that in those circumstances, you can plead lack of information or knowledge sufficient to form a belief about the truth or fity of a particular allegation. Under those circumstances, the court will treat that lack of knowledge as a denial. And the only thing we need to worry about as advocates is that six months, nine months later, the court might say, you really lack knowledge because the rules assume that you will make an inquiry that is reasonable under the circumstances. So we can't use our lack of knowledge, unless it's a lack of knowledge that couldn't be cured on our own. So for example, if the complaint says that the defendant's headquarters are in Delaware and defense counsel might be unaware of exactly where their corporate headquarters are, you can't rely on that sort of willful ignorance to deny as many allegations as possible in the complaint. Instead, you have an obligation to make that inquiry that is reasonable under the circumstances, the general standard for denials in rule eight, B is superseded by rules nine a and nine C which call for more specific pleading in certain contexts. Nine a says that if you are challenging, if you're denying the legal existence or capacity of a party, you need to be more specific. You can't just deny that. So for example, if the plaintiff is the, let's imagine some organization called students for a better way, if the plaintiff is quote students for a better way, close quote, and you want to challenge that organization's capacity to Sue, then rule nine a says, you need to plead the details that give your reason to doubt or to deny. Can't just deny that say, oh, no, they don't have the capacity to Sue. You need to explain why they don't have the capacity to Sue nine a is a deviation from our general standard nines. C is another deviation. Nine C says, if you are challenging or denying a condition precedent, you need to be more specific. This requires you to understand a little bit of contract law. The example of a condition precedent is when a contract says something like if, and when the seller delivers the widgets, the buyer will pay such and such amount. In those circumstances, the delivery of the product is a condition precedent to the buyer's obligation to pay. And so, for example, then if a complaint alleged that, that all of the conditions precedent were satisfied, you can't just deny that as a defendant, because nine C says general denial doesn't work here. If you're denying or challenging the satisfaction of a condition precedent, you need to explain what it is that hasn't been satisfied. Okay, next, let's talk about something fun. That's called the negative pregnant. Now this is obsolete in its strictest form, but it's still a valuable lesson to remind you about the importance of pleading. Let's imagine, for example, that a to complaint says something like the bicycle had a value that exceeded$5,000. The defendant files an answer. And in the answer, the defendant says the D value did not exceed$5,000. The old doctrine said that in a situation like that, that defendant just admitted that the bike's value equaled$5,000 since after all they denied only that it exceeded$5,000. You should be rolling your eyes here. This is sort of a trick in the old pleading regimes. Another example involved conjunctives imagine, for example, that the comp lane alleges that the defendant forcefully and violently hit the plaintiff with a stick. And the defendant denies that she forcefully and violently hit the plaintiff with a stick in the recent past a court. I have treated this denial as an admission that the hitting with the stick was forceful or violent. It's just not that it was forceful and violent. Again, roll your eyes goofiness, but it is a cut that pleadings can be taken very seriously. Eight E doesn't, like this federal rule eight E is our response to goofy arguments like this eight E says, Hey, we're supposed to be construing these things to do substantial justice pleading is not some highly technical exercise. We're just trying to get the arguments out there. That's enough for admissions and denials. Let's talk about affirmative defenses. Now. I said there were three types of content in answers. And the second type of is affirmative defenses. It's easy to have a fuzzy definition of affirmative defenses that is ultimately a wrong definition when things get serious on an exam or in practice. So let's get crystal clarity on what is an affirmative fence. An affirmative defense is something in between the admissions and denials that we've just been talking about and counterclaims it's in between those two things. And of course the first of those two things, we just spent 20 minutes talking about it. We know what those look like. Plaintiff alleges something like, like the defendant was speeding and the defendant either admits or denies that allegation. Let's talk for a second about a counterclaim counterclaims are not the subject of this episode, but note that counterclaims are claims. That's a term of art claims require a cause of action. A defendant could assert a counterclaim. A defendant could assert that cause of action in a separate proceeding, but is instead asserting it against the plaintiff. As a counterclaim in this proceeding, appreciating the definitions of those concepts helps us then see how affirmative defenses are different. An affirmative defense is something the defendant invokes and the something that they're invoking is a legal reason that the plaintiff has no right to recover. Even if all of their allegations are true. And I encourage you whenever you're trying to think through an affirmative defense, choose the Matic affirmative defense, which is statute of limitations. So if you can imagine a complaint by a plaintiff against a defendant, and the complaint tells a story of a car accident and alleges negligence. Well, even if the plaintiff does have a claim for negligence against the defendant, even if everything in that complaint is true, that claim would be barred. If the plaintiff didn't bring that claim timely. And the way that legal theory would be asserted is through an affirmative defense of statute of limitations. Notice that it's not this defendant wouldn't have a cause of action against the plaintiff for statute of limitations. It's not a basis for the defendant's recovery. It's a basis for denying the plaintiff's recovery and asserting that the plaintiff didn't bring the claim timely. Well, that's different than merely an admission or denial of the allegations in the plaintiff's complaint, because an affirmative defense suggests that the plaintiff can't win. Even if the complaint includes only true allegations for many, a bit of history might really cement the affirmative defense for you. Affirmative defenses are descendants of the common law pleading, where it was called confession and avoidance under the strict pleading regime of the common law defendants who received complaints were forced into choosing one kind of defense. There were basically four from which you could choose and you had to choose one and you could only choose one. One of those options was to deny the truth of the plaintiff's allegations. Another option was to confess to the truth of the plaintiff's allegations, but assert some theory to avoid liability, but you couldn't pursue both of those options. So if you denied the truth of the plaintiff's allegations, well, then the issue for resolution was whether we believe what the plaintiff said, that the defendant was speeding or whatever it is that they're alleging. If you wanted to allege something like statute of limitations, you had to confess to the allegations. So if it was speeding like, well, then you'd have to that. You were speeding. And that issue was now undisputed, but you would then put all of your eggs in the basket of asserting the legal theory of avoidance confessing to the underlying allegations, but asserting a theory to avoid liability. Hence, confession avoidance. Now under modern pleading regimes, of course you can do both. You can deny the allegations in the complaint, and we've talked about that. And you can also assert affirmative defenses where you would say, even if everything the plaintiff says is true, there's still not entitled to recover because of this theory that I I'm invoking affirmative defenses can be cause of action specific, or they can be generic. A statute of limitations. Defense is sort of generic. There might be different statutes of limitations for tort claims and contract claims, but the ideas generally speak their broadly applicable to all tort claims to all contract claims, but some affirmative defenses are cause of action specific. Imagine, for example, a statute that prohibits employment discrimination and this employment discrimination statute says that it's unlawful for the employer to discriminate against someone because of their national origin. And in another paragraph of the statute, it says that the statutory prohibition does not apply in circumstances where consideration of the person's national origin is necessary for carrying out a particular job function. Then imagine a lawsuit filed by someone who was denied the opportunity to work at a restaurant because they are not French. And the defendant French restaurant specifically said we're only higher French people for this job of chef in a French restaurant. There are two ways that the court might deal with this carve out from this statutory prohibition on employment discrimination. The court might say that one of the elements of the plaintiff's case is that the plaintiff must demonstrate as one of their elements, that this is not a situation where someone's national origin is necessary for carrying out a particular job function. That's one way that a court might interpret that statute a second way that a court might interpret that statute is to say, that's not an element of the plaintiff's case. That's an affirmative defense that the drafters of this statute built into the statutory regime. So a plaintiff doesn't have to prove that it wasn't necessary for out a particular job function. Instead, the defendant can invoke this as an affirmative defense and they can then avoid liability under this statute by proving that the person's national origin was necessary for carrying out this particular job function. If the court on that to be an affirmative defense, well, then it would be the defendant's burden to plead that affirmative defense. And it would be the defendant's burden to prove that affirmative defense that's the consequence of something being labeled an affirmative defense, as opposed to its inverse be included as an element of the plaintiff's cause of action. And of course, this example also illustrates what an affirmative defense that is specific to a particular cause of action would look like an affirmative defense will defeat or minimize the plaintiff's claim that is accepted by the court or the jury. And I think it's often useful to think of affirmative defenses as having elements, even if it's just one element. So for example, the element for the statute of limitations, affirmative defense is that the plaintiff's claim wasn't filed within the period defined by the statute of limitations. Thinking of affirmative defenses in terms of elements is useful for organizational purposes, because it will systematize your thinking and your analysis, but do not confuse the them with causes of action. Remember statute of limitations, isn't a cause of action. You can't Sue someone when your legal theory of recovery is that they didn't bring a timely suit. Affirmative defenses are not affirmative theories of recovery, but rather are defenses to the plaintiff's claim. And they are affirmative in the sense that it's some theory of defense being invoked by the defendant in the invocation of that theory is different than the defendant mere denying the allegations in the plaintiff's complaint. It's not the same as denying that they were speeding or denying that they discriminated against somebody on the basis of their national origin. Rather, this is a legal theory invoked by the defendant and that legal theory denies the plaintiff's right to recovery. Generally speaking, an affirmative defense is waived. If it's not raised, this is important. Now, in theory, you, you could amend your answer to add an affirmative defense, but allowing amendments like this tends to be the exception rather than the rule waiver is the norm. Then appreciate the mistakes of making a mistake here and making a mistake could be easy to do if you don't know all of the possibly relevant affirmative defenses. And if you can't imagine all of the conceivable ways that the plaintiff's claim as described in the complaint might ultimately unfold. We need to anticipate all of those and put them in our answer, because if they're not in our answer, it's more, more likely than not that a court will consider them to have been waived. And speaking of knowing all of the possible affirmative defenses C there's a nice list in rule eight C it lists a bunch of'em, but this is not an exhaustive list. One last word about affirmative defenses, other affirmative defenses that can be waived if not raised are your 12[inaudible] three, four, and five. If you haven't studied these yet, then just make a note. If you have studied personal jurisdiction, then you, you process and service of process. Then you know what those motions are. But if these motions are not in your answer, they can be waived. See rule 12 H of the federal rules for guidance on that. Finally remember that we aren't focusing here on counterclaims cross claims or third party claims because those are discussed elsewhere, but they should be part of your thinking about answers. And they're part of your thinking about answers for two reasons, one, they can be in your answer. And number two, those claims need to be answered. That concludes this episode of the civil procedure podcast. This episode is about answers. look@yourpodcastfeedorlookatcivilprocedure.com for episodes on related topics. Thank you for your attention and.