Two often-overlooked basics about pleadings

Brian Melendez, The Daily Record Newswire

Many attorneys, perhaps most, make some basic mistakes about pleadings. This column focuses on two such basic mistakes: Many attorneys don’t know what pleadings are (more to the point, they call things “pleadings” that aren’t), and they don’t understand how an answer works. Not knowing what pleadings are usually won’t get you into much trouble. Not understanding how an answer works can sometimes get you into serious trouble.

If it isn’t an answer or a complaint, then it probably isn’t a pleading.

First, what are pleadings, and what kinds of things get called pleadings but aren’t? A pleading is “[a] formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses. In federal civil procedure, the main pleadings are the plaintiff’s complaint and the defendant’s answer (Black’s Law Dictionary 1339 ((10th ed. 2014)).

The Federal Rules of Civil Procedure are explicit that the complaint, the answer, and five other enumerated pleadings — an answer to a counterclaim, an answer to a cross-claim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer — are the “[o]nly . . . pleadings … allowed.”  (Fed. R. Civ. P. 7(a).

Now that we know what a pleading is, what kinds of things get called pleadings but aren’t? Unfortunately, despite the rule’s clarity, almost every other kind of paper that can be served or filed in a civil lawsuit is mistakenly labeled a pleading. I can’t count how many times I have seen a backer with discovery requests and responses, ignorantly labeled “Discovery Pleadings.” No discovery is a pleading. Ever.

Judges get it wrong sometimes, too. I recently handled a case in which a federal judge issued an order that referred to the parties’ settlement papers as “settlement pleadings.” And I recently saw a scheduling order that refers to “dispositive motions and supporting pleadings (motion, notice of motion, memorandum of law, affidavits and exhibits, and proposed order).” Not a single thing in that list is a pleading.

The better practice is to reserve the term “pleading” for actual pleadings, and call other things what they are: process, motions, orders, or discovery, for example. If you need a catch-all word that covers pleadings and everything else too, then the federal rules of civil procedure use “papers.”

If your answer isn’t admitting or denying an allegation, or saying that you don’t know, then you’re in dangerous territory.

Second, many lawyers don’t understand how an answer works, and they cling to antiquated practices that invite serious trouble.

When a defendant is responding to an allegation in a complaint, the response must fall within one of three categories: admit, deny, or say that the defendant doesn’t know (or, as the federal rules somewhat laboriously put it, state that the defendant “lacks knowledge or information sufficient to form a belief about the truth of an allegation”) (Fed. R. Civ. P. 8(b)(5) (lacking knowledge or information”).

These categories are a minimum: The defendant can say more, and sometimes should say more, but must at least say one of those three things.

But many attorneys prefer an evasive approach. Perhaps the most common evasion is a response that the allegation contains a legal conclusion, and therefore doesn’t require a response. Wrong. The Supreme Court has said that a civil complaint may legitimately “contain[] . . . both factual allegations and legal conclusions,”  (Neitzke v. Williams, 490 U.S. 319, 324 ((1989)) and they all require a response (Saldana v. Riddle, No. 98 C 2277, 1998 U.S. Dist. LEXIS 9855, at *2 ((N.D. Ill. June 25, 1998)) (denial of legal conclusions is “nonsense, for legal conclusions are a perfectly proper part of a plaintiff’s allegations in the federal notice pleading regime”).

Another common evasion is that a document or a statute “speaks for itself,” so no response is required. Again, wrong. (Lane v. Page, 272 F.R.D. 581, 602 ((D.N.M. 2011)) (“Responses that documents speak for themselves and that allegations are legal conclusions do not comply with rule 8(b)’s requirements.”)
To state that an allegation is neither admitted nor denied, but that “strict proof” is demanded is also wrong, because “demands for ‘strict proof’ …  are improper and meaningless and clearly violate Rule 8(b).” (Sun Life Assurance Co. v. Great Lakes Bus. Credit LLC, 968 F. Supp. 2d 898, 904 ((N.D. Ill. 2013)).

The downside risk with such evasions comes from the rule that a failure to deny operates as an admission. Fed. R. Civ. P. 8(b)(6) (effect of failing to deny); see Bond v. U.S. Mfg. Corp., No. 09-CV-11699, 2010 U.S. Dist. LEXIS 77342, at *8 (( E.D. Mich. July 30, 2010)) ((“evasive and improper responses to the allegations in the counterclaim operate as admissions”)).

The better practice is to make sure that each allegation is met with an admission, a denial, or a stated lack of knowledge — and then say whatever else you need to say.


Brian Melendez is the managing partner at the Minneapolis office of Dykema Gossett PLLC, a former president of the Minnesota State Bar Association, and a contributing editor to Black’s Law Dictionary and various publications about writing and usage.