Reporter’s Notes:

Rule 8(a), unlike Federal Rule 8(a)(1), does not contain requirement that the claim set forth “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” Such a statement, although essential in the federal courts, is of minimal value in the state courts.

Rule 8(b) provides that the signature to an instrument set forth in any pleading shall be taken as admitted unless a party specifically denies its genuineness. The only Massachusetts statutes dealing with this point, G.L. c. 231, § 29 and G.L. c. 106, § 3-307, reach the same result. To comport with prior law, Rule 8(b) also includes a provision that an allegation in any pleading that a place is a public way shall be taken as admitted unless a party specifically denies such allegation.

That part of former G.L. c. 231, § 30 concerning an allegation that a party is an executor, administrator, guardian, trustee, assignee, conservator, receiver or corporation, was not included in Rule 8(b) because this matter is adequately covered in Rule 9(a). While Rule 9(a) deals only with the matter of capacity of a party to sue or be sued, whereas the language of G.L. c. 231, § 30 could reasonably be interpreted to deal with the matter of capacity of a party for other purposes, these latter instances are so rare that they do not warrant specific mention in Rule 8(b).

G.L. c. 231, § 85A imposes upon the defendant-registered owner of an automobile involved in a collision the responsibility for setting up as an affirmative defense in his answer a denial that the automobile was being operated by a person for whose conduct the defendant was legally responsible. This requirement was omitted from Rule 8(b) for several reasons:

(1) Unlike the questions of the genuineness of a signature or the public ownership of a place, which are susceptible of definite answers and will not often be denied, the legal relationship between the registered owner of a motor vehicle and its operator will often call for a conclusion upon which reasonable minds may differ. When there is any good faith doubt on the matter, the allegation will be denied by the defendant, and properly so.

(2)G.L. c. 231, §§ 85B and 85C are intertwined with the provisions of § 85A. Any subsequent statutory amendments to G.L. c. 231, §§ 85A, 85B, and 85C would likely entail a revision of the rule.

(3) Since one of the major purposes of Rule 8(b) is elimination of the general denial except in those rare cases where the pleader intends in good faith to controvert all the averments of the preceding pleading, particularization of specific situations requiring a specific denial tends to weaken the emphasis on this goal.

Rule 8 reflects the view that the primary function of pleadings is not to formulate the precise issues for trial but rather to give fair notice of the claims and defenses of the parties. Particularized pleadings do occasionally expose the plaintiff’s lack of a viable case or the defendant’s lack of a valid defense. More often, however, particularized pleadings merely result in wasted time and effort, because the claimed defects are matters of form which are subsequently corrected by amendment. In the occasional case where the plaintiff does not have valid claim, a trial can still be avoided by the use of discovery and either a motion to dismiss for failure to state a claim upon which relief can be granted (Rule 12(b)(6) ), or a motion for summary judgment (Rule 56 ).

Rule 8(a)(1) provides that a pleading shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief alters prior practice.”

G.L. c. 231, § 7 provides in part: “Second, the declaration shall state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action.”

The change is epitomized by the statutory terms “substantive facts” and “cause of action.” Under prior law, a pleading had to state precise facts rather than general conclusions, Becker v. Calnan, 313 Mass. 625, 630, 48 N.E.2d 668, 671 (1943), and the substantive allegations had to set forth the essential elements of a recognized cause of action. Brighams Cafe Inc. v. Price Bros. Co., 334 Mass. 708, 137 N.E. 923 (1957).

Rule 8(a)(1) makes no reference to facts or causes of action. Under this rule, if a plaintiff fairly notifies the defendant of the nature of the plaintiff’s claim and the grounds on which he relies, the action should not be dismissed because it does so through what might be termed “conclusions of law.” See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). Certain statutes pertaining to real estate may, however, require unique particularity. See G.L. c. 185, §§ 28, 29; c. 237, § 3; c. 240, § 1.

While Rule 8(a)(1) allows the pleading of conclusions, Rule 12(e) (motion for more definite statement) and Rule 12(f) (motion to strike) cure the only real impropriety of the pleading of conclusions, namely, that the pleading is too vague to form a responsive pleading. It should be emphasized that Rule 8(a)(1) does not alter the statutory requirements regarding the omission of names in Superior Court divorce proceedings, G.L. c. 208, § 10.

Rule 8(a)(2) provides that the claim contain a demand for judgment for the relief to which the pleader deems himself entitled. This will control in the event of a default judgment, see Rule 54(c). It is also important in shaping the judgment, see Rule 54(c) and in determining whether a jury trial is warranted.

Unlike prior procedure, Rule 8(a)(2) permits the pleader to seek in his claim both legal and equitable relief, either together or in the alternative.

Behind Rule 8(b) lies the simple principle that a defendant’s answer should unmistakably indicate to both Court and plaintiff precisely which aspects of the complaint are admitted, and which are controverted. Accordingly, the answer must serially respond to each paragraph of the complaint (with an exception to be discussed shortly). Only three responses are proper: (1) an admission of the allegations of the paragraph; (2) a denial of those allegations; or (3) a disclaimer of knowledge or information sufficient to form a belief as to the truth of those allegations. The provisions of Rule 15 are available to relieve the defendant of the consequences of any admission subsequently discovered to be incorrect. The strictures of Rule 11 apply to encourage admission of those allegations which defendant knows to be true, even if without such admission, plaintiff would be put to expense or difficulty in proving them, or might even be unable to prove them at all. See Arena v. Luckenbach Steamship Company, 279 F.2d 186, 188-189 (1st Cir. 1960), cert. denied, 364 U.S. 895, 81 S.Ct. 222, 5 L.Ed.2d 189 (1960): “It is difficult to believe that counsel who signed this answer had good grounds to assert, among other things, that his client did not either own, operate, or manage the vessel, that the plaintiff was not employed by the stevedore, and that he was not injured, or even aboard the vessel. It is a breach of counsel’s obligation to the court to file an answer creating issues that counsel does not affirmatively believe have a basis.”

Rule 8(b) thus proscribes promiscuous use of the general denial except in those rare cases where defendant (and, more important, his attorney) in good faith denies each and every allegation in the complaint. In this respect, it differs from G.L. c. 231, § 22, which permitted “the general issue” in real and mixed actions. However, G.L. c. 231, § 25, required a separate denial “in clear and precise terms” of each “substantive fact intended to be denied,” or a declaration of ignorance (cognate under Rule 8(b) to a disclaimer of knowledge or information).

If instead of denying the plaintiff’s assertions (or in addition to denying them, see Rule 8(e)(2) ), the defendant wishes only to controvert their effect, he may do so by the modern equivalent of the old “confession and avoidance.” Under Rule 8(c) such disputation is called an affirmative defense; the Rule requires the defendant to set forth any and all affirmative defenses, including, as under prior law, “any facts which would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff’s claim or cause of action or against a judgment recovered by the plaintiff in such action,” G.L. c. 231, § 31.

It does not, however, seek to regulate the substantive question of distribution of the burden of producing evidence or of persuading the trier of fact. The rule merely establishes the burden of pleading, i.e., of raising the issue. On the other hand, by raising for the first time an issue on which he does not have the burden of production or persuasion, a defendant may conceivably run afoul of the doctrine of “invited error.” This principle, which so far as the Reporters can determine has not yet been enunciated by the Massachusetts Court, holds that if a defendant alleges a fact, he cannot be heard to complain if the trial court charges the jury that the defendant has assumed the burden of proving that fact. The Reporters agree with Professor Moore, 2A Moore, Federal Practice, § 8.27 [2], that the mere raising of the defense should not shift any burden to the defendant; they recommend this position unequivocally.

A somewhat related point concerns the possible working of an estoppel on the defendant who pleads, first, a denial of all operative allegations, then an affirmative defense. Under prior Massachusetts practice, Payson v. Macomber, 85 Mass. 69, 73 (1861), as well as under the Federal Rules, such estoppel is of doubtful validity; nonetheless cautious counsel for defendants will probably wish to preface affirmative defenses with some such language as: “If plaintiff suffered injury, as in his complaint is alleged, which is denied. . . .”

In raising an affirmative defense, whoever may be obliged to assume the burden of production and persuasion, the defendant need only give the plaintiff “fair notice,” 2A Moore, Federal Practice § 8.27 [3]. This is of course the natural corollary of the notice pleading theory behind the Rules generally and Rule 8(a) in particular.

Rule 8(d) sets up a straightforward way of dealing with failure to deny averments:

(1) If the averments are contained in a pleading to which a responsive pleading is authorized, the pleader must either utilize the opportunity or be taken to have waived it. Rule 8(d) makes the admission automatic.

(2) If the averments are contained in a pleading to which responsive pleading is not authorized, all averments are automatically taken to have been denied. The chief subject of this Rule will be the answer, see Rule 7(a), unless the court orders a reply.

Rule 8(e)(1) merely emphasizes the fact that under Rule 8 no technical forms of pleading are required.

Rule 8(e)(2) permits a party to state as many separate claims or defenses as he has, regardless of consistency and whether based on legal or equitable grounds. This changes prior Massachusetts practice.

Under previous Massachusetts law, besides being unable to join legal and equitable claims in one pleading, a plaintiff could not join causes of action unless they arose out of the same manner (G.L. c. 231, § 1A ) or unless they belonged to the same division of actions. (G.L. c. 231, § 7 Fifth and Sixth); Twombly v. Monroe, 136 Mass. 464 (1884); Vigoda v. Barton, 338 Mass. 302, 155 N.E.2d 409 (1959). In equity practice, a bill would be objectionable as multifarious if separate and distinct wrongs, each dependent upon its own facts, were joined in a bill. Coughlin v. Coughlin, 312 Mass. 452, 456, 45 N.E.2d 388, 391 (1942).

Rule 8(e)(2) also permits a party to set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. To some extent this rule changes Massachusetts practice, which permitted different causes of action to be joined (with the exceptions mentioned previously), so long as the causes of action were stated in different counts. See G.L. c. 231, § 7 Fifth, Sixth. See also Davis v. H. S. & M. W. Snyder, Inc., 252 Mass. 29, 143 N.E. 319 (1925); McNulty v. Whitney, 273 Mass. 494, 174 N.E. 121 (1931). Because Rule 8(e)(2) permits the plaintiff to set forth two or more statements of a claim in one count, the rule that allegations in one count will not be read into the allegations of another count, Kenney v. Boston & Maine R.R., 301 Mass. 271, 274, 17 N.E.2d 103, 104 (1938) is eliminated.

A party’s right under Rule 8(e)(2) to state claims based upon inconsistent remedies does not alter Massachusetts practice, see G.L. c. 231, § 7 (Sixth) (providing that a plaintiff shall not be required to elect between causes of action where the remedies are inconsistent). Obviously separate judgments, based upon inconsistent theories, against the same person for the same acts, cannot be outstanding simultaneously. See Rock-Ola Mfg. Corp. v. Music & Television Corp., 339 Mass. 416, 425, 426, 159 N.E.2d 417, 419 (1959).

Rule 8(e)(2) changes practice with respect to defenses. Heretofore, at law different consistent defenses could be separately stated in the same answer or plea. See Payson v. Macomber, 85 Mass. 69, 73 (1861). In equity, however, an answer could state as many defenses, in the alternative, regardless of consistency, as the defendant deemed essential to his defense. See S.J.C. Rule 2:12. Rule 8(e)(2) makes the equity principle applicable to all cases.

Rule 8(f) alters the prior Massachusetts rule that pleadings must be construed most strictly against the party drafting them. Hawes v. Ryder, 100 Mass. 216, 218 (1868).

The difference between the philosophy of Rule 8 and that of former Massachusetts pleading practice emerges vividly from a comparison of the “substantial justice” construction requirement of Rule 8(f) with G.L. c. 231, § 38: “The allegations and denials of each party shall be so construed by the court as to secure as far as possible substantial precision and certainty.”