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Archive for the tag “pleading”

Lacking of Specificity About Specificity

F.R.C.P 8(a) and 8(c) requires so-called notice pleading for the claims made in pleadings. Notice pleading requires a party to plead with specificity sufficient to give an opposing party notice of what the claim(s) being made are. A question has arisen in federal court as to whether affirmative defenses, a type of pleading typically filed by a defendant against a plaintiff’s complaint, need to meet the specificity requirement mentioned above.

The U.S. Supreme Court, in the matters of Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), appeared to create new pleading standards; however their application to affirmative defenses is unclear.

The matter of Tyco Fire Products v. Victaulic, 777 F.Supp.2d. 893 (E.D.Pa.2011), in the Eastern District of Pennsylvania attempts to address the ongoing development of the pleading requirements for affirmative defenses.

As is typical, the defendant in Tyco filed a list of affirmative defenses in conclusory form responding to various legal claims. The plaintiff, in response, filed a motion to dismiss the affirmative defenses on the basis that they lacked the necessary specificity per the rules cited above.

When analyzing the arguments presented pursuant to the aforesaid motion, the court noted that F.R.C.P. 8(a) does not apply to affirmative defenses as, per this court, they are dealt with by F.R.C.P. 8(c). Prior to Twombly, affirmative defenses would only be stricken if no set of facts could be inferred to support them. Since the Twombly decision, some say the pleading requirements have risen to something above a speculative level and/or a formulaic recitation of labels or conclusions, and some sort of factual allegations are now required.

In light of the above, the court pointed out that lower courts across the country are divided as to how these Supreme Court cases apply to affirmative defenses; indeed, the court noted, many courts have taken the position that these cases do not apply to affirmative defenses. Significantly, some courts have recognized that as the Supreme Court only interpreted F.R.C.P. 8(a), and not 8(c), there should be no change to the application of 8(c) to affirmative defenses. By contrast, other courts interpret the applicable law as having always required fair notice for all pleadings, including even affirmative defenses.

The U.S. District Court of the Eastern District of Pennsylvania, in Tyco, was more persuaded by the argument that as the Supreme Court interpreted 8(a) and 8(c) differently, affirmative defenses do not require the specificity of other pleadings and need not be plausible to survive. Affirmative defenses need only to provide fair notice of the issues and arguments raised without the specificity required in other sorts of pleadings like complaints and counterclaims. The court argued that it would only strike affirmative defenses challenged on the basis of specificity only if they cannot meet this very low standard, which it believes is consistent with the language of 8(c). Indeed, the court observed that its interpretation is consistent with the fact that no responsive pleading to affirmative defenses is legally or procedurally required. Further, requiring greater specificity imposes an unreasonable burden on parties who risk waiving the defenses they do not raise at the pleading phase due to having insufficient information to raise them as affirmative defenses at the time of filing.

The court admitted that this area of the law, namely the interpretation of F.R.C.P. 8(a) and (c) relative to affirmative defenses, is still very fluid and variable. As a result, it is important for the practitioner to ensure he is familiar with the prevailing interpretation when filing affirmative defenses.

Originally published in The Legal Intelligencer Blog on August 5, 2016 and can be seen here.

Alternative Pleading in a Divorce Action? Not so Fast!

When filing a divorce complaint, it appears that a typical lawyer’s standard pleading philosophy is to make as many claims as theoretically possible, relying on the court or opposing counsel to take the appropriate action to strike the weakest claims; a strategy often referred to as “throw as much mud against the wall and see what sticks!” The Pennsylvania Rules of Civil Procedure (Pa. R.C.P. 1020 and 1021) appear to support such a strategy by specifically allowing alternative pleading as well as pleading contradictory claims. In fact, the Supreme Court of Pennsylvania has explicitly ruled that “[t]hese rules reflect the general principle that plaintiffs should not be forced to elect a particular theory in pursuing a claim.” Republic Intermodal Corporation and Sullivan Lines, Inc. v. Doris Leasing Company, Inc. and Union National Bank of Pittsburgh, 473 Pa. 614 (1976).

When filing a divorce complaint, it appears that most attorneys maintain the aforesaid strategy by simultaneously making claims for a divorce under Sections 3301(c), 3301(d), and sometimes 3301(a) of the Pennsylvania Divorce Code, as standard practice. For the benefit of those who are not familiar with the Divorce Code, Section 3301(c) permits a no-fault divorce after the filing of Affidavits of Consent by both parties and ninety (90) days have elapsed after the filing of a divorce action. Section 3301(d) allows for a no-fault divorce to be unilaterally secured by one spouse after two (2) years of separation. 3301(a) is a traditional and old-fashioned fault-based divorce claim.

Although the Rules of Civil Procedure appear to allow for alternative pleading, even in the context of divorce, there are a growing number of cases that appear to proscribe alternative pleading in divorce in certain circumstances. One question which has arisen is: can a plaintiff in a divorce action, filing under Section 3301(c) and 3301(d) and/or 3301(a) refuse to file an Affidavit of Consent to consent to his own divorce action? It would appear, under the above Rules and case law that a plaintiff in a divorce action has the choice of proceeding under whichever claim he wishes. However the courts have increasingly limited this right under certain circumstances.

Pennsylvania courts, in an increasing number of cases, have ruled that refusing to allow a plaintiff’s divorce action to progress through the quickest route possible unfairly and inappropriately prejudices the opposing party. Consequently, if a plaintiff files under Section 3301(c), the courts have increasingly taken the position that one cannot refuse to file an Affidavit of Consent under Section 3301(c). The prejudice to the opposing party is fairly obvious: first, the filing of a divorce action is often accompanied by the filing for (and granting of) alimony pendente lite. Alimony pendente lite is support for the opposing party which can only be received during the pendency of a divorce action. Therefore, taking action to prolong one’s own divorce action only serves to extend the time the opposing party has to pay alimony pendente lite without recourse to stop it. Second, it prolongs the time the parties are married, which can have any number of implications. The courts have taken the position that the refusal to consent to one’s own divorce action is an abuse of the divorce process and one cannot receive the benefit of the divorce action without taking reasonable steps to expeditiously conclude it.

Although the courts have ruled that one cannot refuse to file an Affidavit of Consent, can a court force a party to execute the affidavit? Thus far, the courts have been reluctant to force the execution of an Affidavit of Consent. The cases deciding this issue to date have established the penalty for refusing to consent to one’s own divorce to be the dismissal of the divorce action in toto, which, by definition, simultaneously dismisses the alimony pendente lite. It does not yet appear that sanctions against the party refusing to consent to his own divorce action are among the penalties to be assessed, but the cases do not proscribe such a result.

A subset of cases involving a party refusing to consent to his divorce is growing in the circumstance where the party is receiving spousal support rather than alimony pendente lite. The crucial distinction between spousal support and alimony pendente lite is that spousal support is not dependant upon the existence of a divorce action. Spousal support can be successfully requested and received by a spouse absent a divorce action, but is definitively concluded when the parties are divorced. Therefore, dismissing the divorce action as a penalty for refusing to file an Affidavit of Consent, does not resolve the prejudice of having an artificially prolonged spousal support order in place against the opposing party. In this instance, judicial economy arguments are raised in the context of the individual factual circumstances of each case. The specific issue is whether dismissing the divorce claim has any positive effect on the spousal support claim. If not, then dismissing the claim may not be a viable alternative to correct the prejudice against the opposing party. It is in this situation that sanctions are most likely to be assessed to remedy the clearly unjust situation.

In the final analysis, when filing for a divorce, one has to be aware of the implications of the existence of an order for spousal support or alimony pendente lite on the speed in which one would like divorce action to proceed. Relatedly, if one files under Section 3301(c) of the Divorce Code, one must be prepared to file an Affidavit of Consent, otherwise one should only proceed under the other sections of the Divorce Code. Relevant cases on this topic are: Skelly v. Skelly, 36 Pa.D.C.4th 189 (1997); Norris v. Norris, 10 Pa. D.&C.4th 207 (1991); Mellot v. Mellot, 1 Pa.D.&C.4th 618 (1988); Burk v. Burk, 38 Pa.D.&C.3d 558 (1986); Way v. Way, 35 Pa.D.&C.3d 653 (1985); Rueckert v. Rueckert, 20 Pa.D.&C.3d 191 (1981).

Originally published in Upon Further Review on November 10, 2009 and can be viewed here or on my website here.  This article was also reprinted on November 10, 2009 in Upon Further Review.  Furthermore, it was also reprinted in Volume 32 Issue No. 4 (December 2010) of Pennsylvania Family Lawyer.

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