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Rule 7(a) of the Federal Rules of Civil Procedure proclaims, with Old Testament-like gravity: "There shall be a complaint and an answer." But what exactly goes into an answer? Like the plea of a criminal defendant, the answer in a civil matter may not determine the outcome, but it sets the stage for the battle.
In Anatomy of a Murder, the 1959 film starring Jimmy Stewart and George C. Scott, the army lieutenant accused of murder claims that he did it in the heat of passion, essentially claiming temporary insanity. In the civil realm this is somewhat analogous, although imperfectly so, to a demurrer, by which the answering party asserts that, even if the facts as you allege them are true, there is a legal reason why your claim is false or is otherwise invalid under the law. Rule 7(c) of the Federal Rules did away with demurrers, but the concept still carries on under both Rule 12 and so-called affirmative defenses.
The defense attorney, therefore, when presented with a new case, must determine whether the case presents a factual dispute such as whether the plaintiff is misrepresenting the true story; or a legal dispute such as which statute of limitations applies. Obviously these are not mutually exclusive and it may be preferable from a defense standpoint to have both concepts in play. The classic example from so-called legal humor (told in many variations) is the defendant in a dog bite trial who asserts that 1) his dog didn’t do it, 2) even if he did do it, his dog has lost all of his teeth and therefore the victim could not have been injured and 3) even if he was injured, the defendant doesn’t own a dog.
Generally, defendants in either the criminal or civil realm tend to admit as little as possible and provide as little information as possible. This was the approach taken by O.J. Simpson, who proclaimed himself "100 percent not guilty." A bad faith denial of an allegation, although not specifically subject to penalties like those attached to requests for admissions, can be sanctioned in some states under Rule 11 or local rules governing pleadings.1 Some federal circuit courts have held that a denial based upon lack of knowledge or information is ineffective and may be treated as an admission if the requested information is necessarily within the knowledge of the answering party, or if the information is easily accessible to that party.
Anatomically, answers consist of a caption; a paragraph-by-paragraph denial or admission of allegations in the complaint; affirmative defenses; affirmative allegations; counterclaims; and a signature block. Although it is not standard practice, restating the allegations from the complaint in the answer makes it easier for the reader to follow, and can help avoid mistakes if paragraphs happen to get numbered incorrectly.
Many practitioners start with a blanket statement along the lines of, "Defendant denies each and every allegation except those expressly admitted herein." A favorite response to any allegations regarding contracts, agreements, letters or other written materials is "the document speaks for itself." Legal assertions in complaints sometimes draw a statement that "no response is required." The extent to which attorneys, on behalf of their clients, go beyond "admit" or "deny" to qualify their responses varies widely. Detailed answers that read like argumentative legal memoranda can be dangerous. In most cases, a good rule of thumb is "less is more."
Most or all of these considerations also apply to replies to counterclaims, which many lawyers mistakenly label as an "answer." Only in the law does "reply" mean something distinct from "answer," but a reply is nothing more than an answer to a counterclaim, with a different name to keep things straight.
Few CLEs or law school skills courses spend much time on the seemingly simple but critically important considerations that go into an answer. Here then is a handy check list to keep in mind when presented with a new case.
1) Extension: One of the first acts taken by defense counsel, especially if much of the 20 days has already been taken up by the client’s delay in seeking an attorney, is to seek an extension of time in which to answer "or otherwise respond." This language leaves open the possibility of a Rule 12 motion, discussed below.
2) Investigate: It is helpful to have the client go through and "admit" or "deny" each paragraph in pencil, but counsel should also investigate independently, not only the facts but also the possible legal defenses.
3) Tender: Because service of a complaint means that a claim is being made, counsel should immediately advise the client to tender the defense and coverage to any applicable insurance companies, if this has not been done already.2
4) Counterclaim: Next, consider whether the defendant has any possible or even "compulsory" counterclaims. Small but valid legal claims, which on their own would not merit the cost or hassle of litigation, can be an effective means of counterattack and a source of possible offset.
5) Remove/Remand: Should this action be in state court or federal court? The deadline for removal is 30 days from receipt or service of the complaint upon the defendant, per 28 U.S.C § 1446. A motion to remand back to state court must be made within 30 days after the notice of removal. 28 U.S.C. C § 1447 (c).
6) Dismiss: Is it possible and advisable to bring a motion to dismiss under Rule 12 in lieu of answering? This tactic has come more in vogue of late, but obviously it depends on the nature of the claims. As a practical matter, it can delay service of an answer for months, and possibly result in no answer ever being filed.
7) Motion to Strike: Defendants can also seek relief under Rule 12 other than judgment on the pleadings. For example, a barebones complaint can be met with a motion for a more definite statement under Rule 12(e) or the opposite, an overly detailed complaint, can be addressed with a Motion to Strike under Rule 12 (f) of the Federal Rules. Motions to strike are rare, but appropriate where the complaint contains "scandalous" or "impertinent" allegations, such as a detailed description of the defendant’s sex life that has nothing to do with the breach of contract claim, or gratuitous assertions that the defendant is a dirty, lying scoundrel.
8) Venue: Is it appropriate to seek a change of venue for strategic reasons?
9) Arbitration: Is there an arbitration clause that would apply to the claim?
10) Exhaustion of Administrative Remedies: Is there an administrative venue for the claim that must be pursued first?
11) Statute of Limitations: What is the applicable limitation period? When did it start?
12) Fraud Claims: Since fraud claims are held to a higher pleading standard under Rule 9 of the state and federal rules, they should almost always be considered for a Rule 12 motion.
Affirmative defenses are any facts, defenses, or arguments, other than a mere denial of the allegation, that would defeat a claim, either on liability or damages. They permit the defendant to avoid liability even if the allegations are true. According to Rule 8, failure to set forth an affirmative defense may waive the right to present evidence on that defense. "In the real world, however, failure to plead an affirmative defense will rarely result in waiver [because] courts are to grant leave to amend pleadings "freely . . . when justice so requires." Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 735 (N.D.Ill. 1982). In other words, answers can be amended after discovery to include new affirmative defenses not raised previously. Asserting a "laundry list" of affirmative defenses sometimes results in a motion to strike by the other side under Rule 12(f) of the Federal Rules of Civil Procedure.
Rule 8(c) of the Federal Rules lists 19 affirmative defenses, specifically the following:
1. accord and satisfaction
2. arbitration and award
3. assumption of risk
4. contributory negligence
5. discharge in bankruptcy
8. failure of consideration
11. injury by fellow servant
16. res judicata
17. statute of frauds
18. statute of limitations
This list is not exhaustive. Other "affirmative defenses" asserted by defendants as seen by the author in practice or in reported cases (with no endorsement as to whether they fit the strict definition of that term) include the following:
20. act of God or peril of the sea (in admiralty case)
22. arbitration agreement
23. borrowed servant
24. collateral estoppel
26. comparative fault of phantom party
27. doctrine of ratification
28. doctrine of primary or exclusive jurisdiction
30. failure to state a claim
31. failure to mitigate
32. failure to preserve confidentiality (in privacy action)
33. failure to join indispensable parties
34. failure to exhaust administrative remedies
35. force majuere
36. filed rate doctrine
37. free speech
38. good faith
39. in pari delicto
40. issue preclusion
41. lack of standing
42. lack of privity
45. patent invalid (in patent action)
46. patent misused (in patent action)
47. penalty (as to liquidated damages clause)
49. qualified immunity
50. good faith immunity
51. release of one joint tortfeasor
52. prior pending action
53. privilege (in defamation or tortious interference action)
55. set off and recoupment
57. sovereign immunity
58. statute of repose
60. truth (in defamation action)
61. unclean hands
Like the defense attorney in Anatomy of a Murder, careful investigation and attention to detail will help you file pleadings that leave all options open and can even help identify and frame possible defenses at the outset.
1 The Minnesota Court of Appeals has held that bad faith denials may violate Rule 11 insofar as an attorney signing a (responsive) pleading certifies that it is well-grounded in fact. Wilson’s, Inc. v. Twin City Freight, Inc., 378 N.W.2d 117, 120 (Minn. Ct. App. 1985). See also Vrooman Floor Covering Inc. v. Dorsey, 267 Minn. 318, 322 (Minn. 1964) (characterizing the use of general denials to "put plaintiff to his proof" as "mischief… needlessly protracting litigation by the device of interposing a sham pleading").
2 See V. John Ella, Be a Tender Sender: Tender Claims to Insurance Company, ABA Young Lawyer, 1999.