Cheat Sheet on Responding to a Complaint | I. Glenn Cohen | July 04, 2013


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Cheat Sheet on Responding to a Complaint

Basics about Answers

            When faced with a complaint, defense lawyers have a variety of tools they can use to respond.  An answer to a complaint can contain four different types of responses.  First, it can contain admissions and denials to the particular points made in the plaintiff’s complaint (see the Catalona answer as an example)  Second, it can contain defenses under FRCP 12(b) (e.g., lack of subject matter or personal jurisdiction, improper venue, or failure to state a claim).  Third, the answer can contain affirmative defenses under FRCP 8(c).  Finally, the answer can contain counterclaims and cross-claims under FRCP 13 that were not mentioned in the complaint (we will discuss both in a later portion of the course).  Defense counsel can also choose to add an additional defendant to a counterclaim, or can choose to otherwise add parties. One of the major purposes of the Answer in the FRCP system is to help narrow the issues that will be litigated and allow the court and the other party to understand which controversies are "live" ones.


Admissions and Denials

            Under FRCP 8(b), a party is required to admit or deny each averment in the complaint, except when the party “lacks knowledge or information sufficient to form a belief about the truth of an allegation.”  The answer may deny specific allegations, whole paragraphs, or the entire complaint. FRCP 11, which we will study shortly, is what keeps defendants honest in their answer. Defendants are often reluctant to admit anything in a complaint—particularly legal conclusions (e.g., Def was negligent)—because doing so causes those conclusions to be binding for the rest of the trial unless the answer is amended.

             Defense counsel should be especially cautious in admitting and denying an entire sentence in a complaint when they only mean to deny portions of it.  In Zielinski v. Philadelphia Piers, Inc., 139 F. Supp. 408 (D.C. Pa. 1956), the plaintiff alleged that a vehicle “owned, operated, and controlled” by the defendant was negligently caused to come into contact with the plaintiff and to injure him.  The defendant denied the entire paragraph of averments, when he easily could have admitted that the accident happened, that the defendant owned the vehicle, and that there was some injury to the plaintiffs.  Did the defendant lie when he denied that he “owned, operated, and controlled” the vehicle when he did own the vehicle?  It is a close question; perhaps you could argue that he denied the conjunction of the three verbs.  In this case the plaintiff sued the wrong defendant and by the time the plaintiff realized the statute of limitations had already run. To punish the defendant for what it viewed as a surreptitious use of the denial mechanism, the court ruled that the defendant should be treated as though it had admitted operation and control of the vehicle in question. That is pretty harsh medicine, and few courts would go so far to punish a defendant who technically plead the truth. Nonetheless, the case is illustrative of how important choosing when to admit and when to deny can be in the answer. There is also a lesson to be learned for the plaintiff who drafted that complaint, never put an "and" into a single line of the complaint where the denial could be read as denying merely the conjunction. It would have been better to plead in the complaint separate statements about ownership, operation, and control.

            Although defense counsel may state that they “lack knowledge or information sufficient to form a belief about the truth of an allegation,” pleading that way should not be done lightly.  Some jurisdictions specifically prohibit "evasive denials."  See, e.g., Conn. Gen. Stat. Ann. § 10-47 ("where any matter of fact is alleged with diverse circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much as is true and material should be stated or admitted, and the rest only denied.").  Also consider Greenbaum v. United States, 360 F. Supp. 784 (E.D. Pa. 1973), in which the Government was the defendant:

An answer of lack of knowledge or information will usually be deemed a denial.  A party, however, may be held to the duty to exert reasonable effort to obtain knowledge of a fact. . . . In the present case defendant failed to examine available, highly relevant Government documents which would have given a basis for the belief that plaintiff was not a business invitee and that the Court did not have jurisdiction under the FTCA.  A fact which is denied for lack of knowledge or information may be deemed admitted if the matter is one to which the party does have knowledge or information. . . . The government will be held to an admission that plaintiff was a business invitee at the time of the accident. . . .


Affirmative Defenses

            Defendants may also make affirmative defenses, in which the defendant makes the claim that even if the plaintiff wins on its claims in the complaint, the defendant still wins the case for another reason.  Defendants  have the burdens of pleading, production, and persuasion as to all elements of affirmative defenses.  For the most part, if a defendant fails to raise an affirmative defense in the answer, the defendant has waived it unless an amendment of the answer is allowed.  This is particularly so for the list of nineteen affirmative defenses listed in FRCP 8(c).  For other affirmative defenses some courts have been less strict, allowing some affirmative defenses that were not plead in the answer absent a showing of prejudice to the plaintiff.  See, e.g., Proctor v. Fluor Enterprises, Inc., 494 F.3d 1337, 1351 (11th Cir. 2007) (“The general rule of waiver is more easily applied when a party fails to set forth one of the nineteen defenses specifically listed in Rule 8(c); waiver becomes less clear when a party fails to assert affirmatively some ‘other matter’ that pre-existing federal case law has not clearly construed as ‘constituting an avoidance or affirmative defense’ under Rule 8(c).”). Still, when you are practicing you never want to put yourself in the position of having to rely on a court to let you slip in an affirmative defense. If it forbids you from doing so at a later date, your client may sue you for legal malpractice!




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July 04, 2013

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