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Rule 8 – General Rules of Pleading

May 13, 2021 | Civil Procedure, Mississippi

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim, or third-party claim, shall contain

(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and,
(2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.
(b) Defenses: Form of Denials. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials or designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all of its averments, he may do so by general denial subject to the obligations set forth in Rule 11.
(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counter-claim or a counter-claim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been proper designation.
(d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
(e) Pleading to Be Concise and Direct: Consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency. All statements shall be made subject to the obligations set forth in Rule 11.
(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.
(g) Pleadings Shall Not Be Read or Submitted. Pleadings shall not be carried by the jury into the jury room when they retire to consider their verdict, except insofar as a pleading or portion thereof has been admitted in evidence.
(h) Disclosure of Minority or Legal Disability. Every pleading or motion made by or on behalf of a person under legal disability shall set forth such fact unless the fact of legal disability has been disclosed in a prior pleading or motion in the same action or proceeding.

Miss. R. Civ. P. 8

Advisory Committee Notes

Rule 8 allows claims and defenses to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel. Under Rule 8(a), “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” See DynaSteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977 (Miss. 1992). A plaintiff must set forth direct or inferential fact allegations concerning all elements of a claim. See Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 432 (Miss. 2005). Motions or pleadings seeking modification of child custody must include an allegation that a material change has occurred which adversely affects the child or children. It is not sufficient to allege that an adverse change will occur if the modification is not granted. See, e.g., McMurry v. Sadler, 846 So. 2d. 240, 244 (Miss. Ct. App. 2002). In cases involving the joinder of multiple plaintiffs, the complaint must contain the allegations identifying by name the defendant or defendants against whom each plaintiff asserts a claim, the alleged harm caused by specific defendants as to each plaintiff, and the location at which and time period during which the harm was caused. See 3M Co. v. Glass, 917 So. 2d 90, 92 (Miss. 2005); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495 (Miss. 2004). Failure to provide this “core information” is a violation of Rules 8 and 11. Plaintiffs in such cases must also plead sufficient facts to support joinder. Glass, 917 So. 2d at 93; Mangialardi, 889 So. 2d at 495.

Rule 8(c) ‘s requirement that defendants plead affirmative defenses when answering is intended to give fair notice of such defenses to plaintiffs so that they may respond to such defenses. Just as Rule 8(a) requires only that the plaintiff give the defendant notice of the claims, Rule 8(c) requires only that the defendant give the plaintiff notice of the defense. “A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Kimball Glassco Residential Ctr., Inc. v. Shanks, 64 So. 3d 941, 945 (Miss. 2011) (citing MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 180 (Miss. 2006)).

The list of affirmative defenses in Rule 8(c) is not intended to be exhaustive. A defense is an affirmative defense if the defendant bears the burden of proof. See Natchez Elec. & Supply Co., Inc. v. Johnson, 968 So. 2d 358, 361 (Miss. 2007). “A matter is an ‘avoidance or affirmative defense’ only if it assumes the plaintiff proves everything he alleges and asserts, even so, the defendant wins. Conversely, if, in order to succeed in the litigation, the defendant depends upon the plaintiff failing to prove all or part of his claim, the matter is not an avoidance or an affirmative defense. A defendant does not plead affirmatively when he merely denies what the plaintiff has alleged.” Hertz Commercial Leasing Div. v. Morrison, 567 So. 2d 832, 835 (Miss. 1990).

Examples of some affirmative defenses or matters of avoidance that are not enumerated in Rule 8(c) but which have been recognized by the Supreme Court include: the failure of a foreign limited liability corporation transacting business in the state to register to do business as a prerequisite to maintaining an action in state court as required by Mississippi Code Annotated section 79-29-1007(1)(Supp. 2011) (see Loggers, L.L.C. v. 1 Up Technologies, L.L.C., 50 So. 3d 992, 993 (Miss. 2011)); immunity under the Mississippi State Tort Claims Act (see Price v. Clark, 21 So. 3d 509, 524 (Miss. 2009)); failure to comply with the requirement of a certificate of expert consultation in medical malpractice cases as required by Mississippi Code Annotated section 11-1-58 (Supp. 2011) (see Meadows v. Blake, 36 So. 3d 1225, 1232-33 (Miss. 2010)); plaintiff’s non-compliance with the 90-day notice requirement contained in Mississippi Code Annotated section 11-46-11(1)(Supp. 2011) (see Stuart v. University of Miss. Med. Ctr., 21 So. 3d 544, 549-50 (Miss. 2009)); the assertion of the right to arbitrate (see Ms. Credit Ctr., Inc. v Horton, 926 So. 2d 167, 179 (Miss. 2006)); apportionment of fault pursuant to Mississippi Code Annotated section 85-5-7 (Supp. 2011) (see Eckmann v. Moore, 876 So. 2d 975, 989 (Miss. 2004)); argument that a contractual acceleration clause is an un-enforceable penalty (see Hertz Comm’l Leasing Div. v. Morrison, 567 So. 2d 832, 834 (Miss. 1990)); the failure of a foreign corporation transacting business in this state to obtain a certificate of authority as prerequisite to maintaining an action in this state as required by Mississippi Code Annotated section 79-4- 15.02 (Supp. 2011) (see Bailey v. Georgia Cotton Goods Co., 543 So. 2d 180, 182-83 (Miss. 1989)); election of remedies (see O’Briant v. Hull, 208 So. 2d 784, 785 (Miss. 1968)); adverse possession as a defense to neighboring landowner’s actions (see Charlot v. Henry, 45 So. 3d 1237, 1243-44 (Miss. Ct. App. 2010)); the defense of condonation in a divorce case (see Ashburn v. Ashburn, 970 So. 2d 204, 212-13 (Miss. Ct. App. 2007)).

A party may be denied leave to amend its answer to include an affirmative defense if that affirmative defense has been waived. See Hutzel v. City of Jackson, 33 So. 3d 1116, 1122 (Miss. 2010).

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