Reporter’s Notes:

(1973) Rule 9 is substantially the same as Federal Rule 9 and does not substantially alter Massachusetts practice.

Rule 9(a), which abolishes any requirement that the pleadings aver the legal existence of a party or the capacity or authority of a party to sue or be sued, is based upon the assumption that in most cases the capacity, authority or legal existence of a party is not in issue; thus the pleadings should not be cluttered with unnecessary verbiage. Of course, the caption of the complaint would contain the capacity of the parties in the action. Thus, for example, the name of the plaintiff appearing in the complaint, “Alpha Corporation,” would indicate that the plaintiff is a corporation. Under Rule 9(a), however, the complaint would not have to recite the fact of incorporation or indicate the state of incorporation. Likewise, while the caption of the complaint would name the plaintiff as “John Jones, Executor under the will of Mary Smith,” it would not be necessary to recite in the complaint the fact of the appointment.

Most of the Massachusetts cases dealing with the capacity of a party to sue or be sued have involved the application of G.L. c. 231, § 30 which provides in part:

“If it is alleged in any civil action or proceeding that a party is an executor, administrator, guardian, trustee, assignee, conservator or receiver or is a corporation . . . such allegation shall be taken as admitted unless the party controverting it files in court, within the time allowed for the answer thereto, or within ten days after the filing of the paper containing such allegation, or within such further time as the court may allow on motion and notice, a special demand for its proof.”

For cases applying this statute see Boudreau v. New England Transportation Co., 315 Mass. 423, 53 N.E.2d 92 (1944) (administrator); Salvato v. Di Silva Transportation Co., 329 Mass. 305, 108 N.E.2d 51 (1953) (corporation); Schwartz v. Abbot Motors, Inc., 344 Mass. 28, 181 N.E.2d 334 (1962) (trustees under a declaration of trust and assignees).

Like prior law, Rule 9(a) places on the party disputing capacity, authority or legal existence the initial burden of controverting it.

Massachusetts cases hold that, unless the lack of capacity appears on the face of the pleadings, the question of alleging lack of capacity to sue or be sued is a matter or abatement. See Friedenwald Co. v. Warren, 195 Mass. 432, 434, 81 N.E. 207 (1907). If the lack of capacity to sue or be sued appears on the face of the pleading, a motion to dismiss is the proper procedure. Tyler v. Boot and Shoe Workers’ Union, 285 Mass. 54, 188 N.E. 509 (1933).

The federal cases have held that where lack of capacity appears on the face of the pleadings it may be raised by a motion to dismiss. Klebanow v. New York Produce Exchange, 344 F.2d 294, 296, f.n. 1 (2d Cir. 1965); Hershel California Fruit Products Co., Inc. v. Hunt Foods Inc., 119 F. Supp. 603, 607 (D.C.Cal. 1954 ); Coburn v. Coleman, 75 F. Supp. 107, 109 (D.C.S.C. 1947 ).

Rule 9(b) does not alter Massachusetts law, which has long held that averments of fraud must be stated with particularity, Nichols v. Rogers, 139 Mass. 146, 29 N.E. 377 (1885); Cohen v. Santoianni, 330 Mass. 187, 112 N.E.2d 267 (1953), and that allegations of duress must be similarly stated, Fleming v. Dane, 298 Mass. 216, 10 N.E.2d 85 (1937).

That part of Rule 9(b) permitting a general averment with respect to malice, intent and knowledge and other conditions of a person’s mind also comports with prior law. See Gabriel v. Borowy, 326 Mass. 667, 672, 96 N.E.2d 243, 245 (1951).

Because under former practice, allegations of duress had to be stated with particularity (see Fleming v. Dane, supra) the reasons for the requirement that fraud and mistake be stated with particularity also apply to duress and undue influence, which Rule 9(b) specifically includes.

Rule 9(c) does constitute a change in prior Massachusetts law. G.L. c. 231, § 7 provided in part:

“Twelfth, the condition of a bond or other conditional obligation, contract or grant declared on shall be set forth. The breaches relied on shall be assigned, and the performance of conditions precedent to the right of the plaintiff to maintain his action shall be averred or his reason for the non-performance thereof stated.”

The failure of the plaintiff to allege the performance of conditions precedent to the right of the plaintiff to maintain his action was held sufficient grounds to sustain the defendant’s demurrer. Mirachnick v. Kaplan, 294 Mass. 208, 1 N.E.2d 40 (1936); Muchnick v. Bay State Harness Horse Racing & Breeding Association, Inc., 341 Mass. 578, 171 N.E.2d 163 (1961). An allegation that “the plaintiff has done and performed all things on its part in said agreement contained to be done and performed, and that it has kept all of the conditions of said agreement” has been held insufficient to avoid a demurrer. In Newton Rubber Works v. Graham, 171 Mass. 352, 353, 50 N.E. 547, 548-549 (1898), the Court held that the conditions should also be set out.

Rule 9(d) and (e) require little comment. While some common law authority holds that the jurisdiction of the court rendering a foreign judgment must be pleaded, no Massachusetts decision directly so states. In Upham v. Damon, 94 Mass. (12 Allen) 98 (1866), an action on a judgment rendered by a magistrate of another state, the Court held that an objection by the defendant that the declaration did not show that the magistrate had jurisdiction can only be taken by demurrer.

“We have not therefore considered whether, if so taken [it] would have availed the defendant” Id. at 99. The presumption in favor of the regularity and validity of a judgment rendered by a court of general and superior jurisdiction of another state, Tuells v. Flint, 283 Mass. 106, 186 N.E. 222 (1933), while concerned with the matter of proof, may have some bearing on the pleading issue.

It should be noted that Rule 9(e) makes no distinction between domestic and foreign judgments.

Rule 9(f) makes averments of time and place material for purposes of testing the sufficiency of the complaint. This alters the common law rule that time and place in most instances are not material. Shipman, Common Law Pleading, 458-460 (1923). See Pierce v. Pickens, 16 Mass. 470 (1820); Folger v. Fields, 66 Mass. 93 (1853).

It should be noted that Rule 9(f) does not require specificity in pleading time and place. See Supreme Wine Co. v. Distributors of New England Inc., 198 F. Supp. 318 (D.Mass.1961). Rule 9(f) provides only that when specific allegations of time and place are made, they are material, that is they must be able to withstand a motion under Rule 12. Any defect can be cured by amendment under Rule 15.

The chief importance of Rule 9(f) lies in connection with the statute of limitations. Under prior law the defense of the statute of limitations, even though apparent from the face of the declaration, had to be set up as an affirmative defense, not by demurrer. Aisenberg v. Royal Insurance Co. Ltd., 266 Mass. 543, 165 N.E. 682 (1929). Because time is material under Rule 9(f), a motion to dismiss under Rule 12(b)(6) may be utilized whenever the time alleged in the complaint shows that the cause of action has not been brought within the statutory period.

Rule 9(g) states prior law, Antokol v. Barber, 248 Mass. 393, 143 N.E. 350 (1924), and does not purport to determine what precisely are special damages. Prior law will govern this.

The justification for Rule 9(g) and prior law is that the defendant ought to be guarded against surprise at the trial by evidence tending to prove damages of which he had no previous notice and which would not normally be implied from the facts set forth in the complaint.

The words “special damage” in Rule 9(g) have three appropriate meanings:

1. Special damages are sometimes considered “damages not necessarily flowing from the acts set out in the declaration, and of which the defendant could not be supposed to have notice unless they were properly averred.” Baldwin v. Western Railroad Corp., 4 Gray 333, 336 (1855). Special damages “are not implied by law” from allegation of general damages “because they do not necessarily arise from the act complained of.” Id.

Thus, in an action for injury to real estate, damages for the loss of rent may not be recovered unless they are specially pleaded. Parker v. City of Lowell, 11 Gray 353, 358 (1858). These are to be contrasted with general damages; “all damages which are the natural or necessary consequences of the cause of action.” “Damages such as the law will imply from the facts set forth in the declaration.” Antokol v. Barber, 248 Mass. 393, 395, 143 N.E. 350, 351 (1924). Thus, in a case involving an automobile accident, both the expense of repairing the vehicle and the fair value of its use while being repaired were considered elements of general damages, Id. , because they were “such damages as any other person as well as the plaintiff, might under the circumstances have sustained from the acts set out in the declaration.” Baldwin v. Western Railroad Corp., 4 Gray 333 (1855).

2. In an action for slander, unless the words alleged are “slanderous per se,” the plaintiff, in order to withstand a motion under Rule 12(b)(6) (failure to state a claim upon which relief can be granted) must allege special damage, i.e. particular allegations of the way the plaintiff has suffered money damages from the defendant’s words. Lynch v. Lyons, 303 Mass. 116, 119, 20 N.E.2d 953, 955 (1939).

3. In personal-injury litigation, the words “special damages” (or more colloquially, “specials”) refer to such specific, allocable items of damage as the plaintiff’s loss of earning capacity, his hospital and medical bills, and any other out-of-pocket losses, although arguably, some of these items might be considered general damages under the principles discussed earlier. For example, Millmore v. Boston Elevated Railroad, 198 Mass. 370, 84 N.E. 468 (1908) held that a housewife’s claim for impairment of earning capacity caused by personal injury constituted general damages and not special damages.

Under prior Massachusetts practice (Super. Ct. Rule 33A ) the plaintiff was required to file “a statement setting forth the facts in full and itemized detail upon which the plaintiff then relies as constituting the damages.” Rule 9(g) makes no more stringent requirements.

Under Federal Practice, Rule 9(g) has been interpreted to require a plaintiff “to inform defending parties as to the nature of the damages claimed in order to avoid surprise; and to inform the court of the substance of the complaint.” Great American Indemnity Co. v. Brown, 307 F.2d 306, 308 (5th Cir. 1962). Thus, for example, Form 9, which is by definition sufficient under the rules (Rule 84 ), contains no other reference to damages, general or special, than the following: “As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.”

Rule 9(g) has been interpreted to place upon the defendant the onus of requiring strict compliance. Faced with a complaint which he believes to contain inadequate notice of special damages, a defendant “should file a motion for a more definite statement” under Rule 12(e), Great American Indemnity Co. v. Brown, 307 F.2d 306, 308 (5th Cir. 1962). Defendant’s failure to raise this point in the pleadings stage constitutes a waiver of the requirements. Niedland v. United States, 338 F.2d 254, 259 (3rd Cir. 1964).