COMMENT

Reporter’s Notes to Rule 7:

1. This Rule serves the purpose of FRCP 7 by providing a simple and elastic pleading and motion procedure, placing minimum emphasis on form and reducing the number of pleadings allowed. Roughley v. Penn. R. R. Co., 230 F.2d 387 (3rd Cir. 1956).

2. With minor exceptions Section (b) is the same as FRCP 7(b). Although the superseded Ark. Stat. Ann. § 27-1103 (Repl. 1962) did not provide for pleadings other than complaint, demurrer or answer and demurrer or reply to the answer, other now superseded statutes recognized the validity of counterclaims and replies thereto as well as cross complaints. All pleadings recognized herein have been a part of Arkansas practice.

3. As in FRCP 7, Section (b) requires a reply to a counterclaim only when it is “denominated as such.” No reply is required to a set-off or to a counterclaim which is not so denominated. Thus, by failure to reply, a plaintiff does not lose the right to defend against new matters set out in the answer unless the answer, or a part of it, is denominated “counterclaim.” Gulf Refining Co. v. Fetschan, 130 F.2d 129 (6th Cir. 1942), cert, den., 318 U.S. 764, 63 S. Ct. 666. Indeed, a reply to an answer not containing a counterclaim denominated as such should not be considered by the court. See Carpenter v. Rohm & Hass, 170 F.2d 146 (3d Cir. 1948); Kramer v. Jarvis, 81 F. Supp. 360 (D. C. Neb. 1948 ).

4. FRCP 7(a) provides that the court may order a reply to an answer or a third party answer. That provision is omitted from the Rule because its theoretical necessity is questionable and its practical value is very little. A reason given for this FRCP provision is that it may enable the defendant to determine whether the plaintiff will admit to new matters raised in the answer but not denominated as a counterclaim. The same goal can be accomplished through discovery. Other reasons for the FRCP provision are stated in Wright and Miller, Federal Practice and Procedure, 1185 (1969), but none of them seems sufficient to justify its inclusion here. In the leading case on whether the court should, pursuant to FRCP 7(a), order a reply to an answer, the court held that such a reply should not be ordered unless there is a “clear and convincing factual showing of necessity or other extraordinary circumstances of a compelling nature,” and that a reply should not be used as a substitute for discovery or inspection or for a pre-trial hearing. Moire Color, Ltd. v. Eastman Kodak Co., 24 F.R.D. 325 (D.C. N.Y. 1959 ). Prior Arkansas law permitted no reply except in response to allegations containing a counterclaim or set-off. As noted above, no reply is required or permitted to a set-off under this Rule.

5. The purpose of Section 6(1), which is the same as FRCP 7(b)(1), is to give written notice to other parties of motions not made in the course of a hearing or trial. Oral motions made during a hearing or trial are still permitted as they are usually reduced to writing in the record of the proceedings, and they remain necessary, due to the unpredictable nature of litigation.

6. Section (b)(2) requires that matters as to form of pleadings are applicable to motions and other documents. The evident reason is to avoid the unnecessary complication resulting from different formulary rules.

7. Perhaps the most notable effect of Rule 7 is its abolition of the demurrer from Arkansas procedure. It was abolished in the FRCP and the old Federal Equity Rules and elsewhere for avoiding its sheer technicality and to permit more liberal tools for attacking the sufficiency of pleadings which accomplish the legitimate purposes of the demurrer, e.g., Rule 12(b)(6).

8. Section (d) continues the practice prescribed in superseded Rule 1(c) of the Uniform Rules for Circuit and Chancery Courts which required an additional copy of all pleadings and motions for use of the court.

Addition to Reporter’s Notes, 2002 Amendment: New paragraph (2) of subdivision (b) addresses matters that previously appeared in Rule 6(c) (supporting affidavits) and Rule 78(b) (content of motions). With these changes, Rule 6(c) governs the timing of motions, responses, and replies, while Rule 7(b) governs their content. Rule 78(b) simply cross-references these provisions. Former paragraph (2) of subdivision (b) has been redesignated as paragraph (3), and minor changes have been made in the titles of subdivision (b) and the rule.

Addition to Reporter’s Notes, 2007 Amendment: New paragraph (4) of subdivision (b) references the 2007 changes in Administrative Order 3, which clarify when a matter is submitted for decision for purposes of that Order.

Reporter’s Notes (2018 Amendment): Rule 7(b)(3) has been amended to make clear that the requirements of rules 10(a) and 11(a) in regard to captions, signings, and other matters of the form of pleadings also apply to motions and other papers allowed under the rules.