The Closed List of Pleadings

Pleadings and Required Form

The Closed List of Pleadings

Rule 7(a) opens with a sentence that governs the rest of this chapter: “Only these pleadings are allowed.”¹ The list that follows is exclusive. A pleading is the paper in which a party states its claims or defenses, and a paper missing from the list is not a pleading, whatever its author calls it. Motions and other filings belong to a separate category.

The drafters kept the list short because experience at common law and under the codes had convinced them that pleadings matter little in a lawsuit.² At common law the pleadings could continue indefinitely, until they produced a single issue of law or fact to decide. The Field Code, adopted in New York in 1848 and widely imitated, capped them at three: a complaint, an answer, and a reply. Rule 7(a) normally yields only two, a complaint and an answer, and a reply appears only when the court allows one. The theory is that those two papers show each party’s general position, and that further pleading is not worth the trouble.³

Seven entries make up the list, and they run in the order a case unfolds:

1. a complaint;⁴
2. an answer to a complaint;⁵
3. an answer to a counterclaim designated as a counterclaim;⁶
4. an answer to a crossclaim;⁷
5. a third-party complaint;⁸
6. an answer to a third-party complaint; and⁹
7. if the court orders one, a reply to an answer.¹⁰

In most federal cases only the first two ever appear.¹¹ The sections below take the entries in turn.

The Complaint

The complaint heads the list in Rule 7(a)(1).¹² It is the plaintiff’s opening pleading, the paper in which the plaintiff says what the dispute is and what relief the court should grant. Nothing else on the list can come first: an answer needs allegations to admit or deny, and a counterclaim or third-party complaint grows out of a case already under way.

Filing the complaint also commences a federal action.¹³ The defendant’s first look at the dispute is therefore a document that states a claim, which gives the defendant something definite to admit, deny, or attack.

A complaint sets out a short and plain statement of the claim showing that the plaintiff is entitled to relief, and it demands the relief sought.¹⁴ Whether a particular statement is detailed enough is a different question. Courts test it against the elements of the claim and accept the well-pleaded factual allegations as true.¹⁵ That question lies outside this chapter, which asks only which papers count as pleadings and what form they take.

Not every paper that opens a lawsuit is a pleading. Pennsylvania lets a plaintiff begin a case with a writ of summons, a paper that opens the action before any claim has been stated. In Parker Hannifin Corp. v. Federal Insurance Co., a federal district court in Pennsylvania held that such a writ is not an “initial pleading.” The court contrasted the Pennsylvania rules with the Federal Rules, under which an action is commenced only by filing a complaint.¹⁶ Rule 7(a) points the same way: it lists the complaint and no summons-only paper.¹⁷

The question in Parker Hannifin arose in the removal setting, so the opinion is no general statement about pleadings. Its reasoning still shows why the list begins with the complaint: a defendant cannot weigh a dispute that no one has described. On an exam, test any paper said to open a federal case against the Rule 7(a) list instead of accepting its label.

The Answer

Rule 7(a)(2) names the second pleading: “an answer to a complaint.”¹⁹ The answer is the defendant’s response to the plaintiff’s complaint, and together the two papers make up the pleadings in most federal cases.²⁰ The phrase “to a complaint” defines the answer by its job, which is responding to the complaint’s allegations. That matters because a defendant’s first filing is often a different paper. A defendant may begin with a Rule 12(b) motion instead of an answer,²¹ and a motion asks for an order; it does not respond to the allegations.

Timing therefore does not make a paper an answer; function does. Pruitt’s motion attacks the legal sufficiency of the allegations and responds to none of them individually.

Because the answer exists to respond to the complaint, its contents track the complaint’s allegations. The defendant has three ways to respond to each one:²²

• Admit the allegation, which removes the point from dispute.
• Deny the allegation, which leaves the plaintiff to prove it.
• State that the defendant lacks knowledge or information sufficient to form a belief about its truth, which has the effect of a denial.

Separately, the answer must set out any avoidance or affirmative defense, meaning facts that defeat liability even if the plaintiff’s allegations are true.²³ A defendant who pleads the plaintiff’s own carelessness is saying, in effect, “I did what you say, and here is why I am still not fully liable.”

Each response has its own logic. An admission resolves a fact conclusively, and a denial moves the litigation into the fact-gathering stage.²⁴ The third response covers facts the defendant cannot honestly confirm. Our system assumes that the defendant is more likely to know the facts of liability and the plaintiff the facts of damages.²⁵ A defendant asked about how long the plaintiff was hospitalized can say that it lacks knowledge or information sufficient to form a belief, and the statement counts as a denial. The plaintiff must still prove the fact.

That is why the answer faces a stricter demand for precision than the complaint, which the Rules treat as a series of untested statements. Sanctions for false or misleading answers include compelled admission of facts against interest, preclusion of defenses, and, in the worst cases, adverse judgment.²⁶

Classify a paper by what it does. One that admits, denies, or professes lack of knowledge about the complaint’s allegations, and states any affirmative defenses, is an answer. One that asks the court for an order is a motion.

Counterclaim and Crossclaim Answers

Rule 7(a) lists “an answer to a counterclaim designated as a counterclaim” third and “an answer to a crossclaim” fourth.²⁸ A counterclaim is a defendant’s claim against the plaintiff, and a crossclaim is a defendant’s claim against a codefendant. Either claim appears in the defendant’s answer, and the party it targets may then file an answer of its own. That answer normally completes the pleadings.²⁹

The Rules add these entries because a counterclaim or crossclaim is a new claim for relief, in substance a second complaint folded into the defendant’s answer. The original answer sorted the plaintiff’s allegations into those admitted, denied, and defended. The defendant’s new claim has had no such response. An answer to the counterclaim does for the defendant’s claim what the original answer did for the plaintiff’s.

Rule 7(a)(3) reaches only a counterclaim “designated as a counterclaim.” A defendant’s answer typically does two jobs: it responds to the complaint, and in a separate part it advances a claim of the defendant’s own. The designation marks that second part as a counterclaim, which tells the court and the opposing party which paper opens a new line of dispute.

A crossclaim works the same way between parties on the same side of the case.

An answer that contains only affirmative defenses gives the plaintiff no pleaded response as of right. Suppose the retailer had pleaded only late shipment and prior payment. No counterclaim would exist, so no answer to a counterclaim would exist, and the supplier’s wish to respond to those defenses would not produce a Rule 7(a)(3) pleading. A further pleading would be available only if the court ordered a reply, the subject of the last section below.³⁰ The logic is simple. An affirmative defense only resists the claim already pleaded, while a counterclaim demands something from the plaintiff, and that demand draws an answer.³¹ The test is whether the answer contains a claim against another party, and the number of new facts it asserts does not matter.

Some study materials call the plaintiff’s response to a counterclaim a “reply” and say that a reply is required when the answer contains a counterclaim.³² Rule 7(a)(3) calls the same paper an answer to a counterclaim. The labels differ, and the paper is the same.

Third-Party Pleadings

Rule 7(a)(5) lists “a third-party complaint” as a pleading, and Rule 7(a)(6) lists “an answer to a third-party complaint.”³⁴ A third-party complaint is the pleading in which a defendant claims that someone not yet in the lawsuit may be liable to the defendant for some or all of what the plaintiff recovers. The defendant who files it becomes the third-party plaintiff, and the outsider it names becomes the third-party defendant once brought in. When a defendant may take this step is a joinder question that this chapter leaves aside. Here the point is narrower: the paper that makes the claim and the paper that responds to it are both pleadings, and both sit on the closed list.

These two entries repeat a pattern the list has followed since the complaint. A complaint draws an answer, and a counterclaim or crossclaim draws its own answer, because each is a claim for relief whose allegations the recipient must sort into admitted, denied, and defended. A third-party complaint is another such claim, so Rule 7(a)(6) supplies the matching answer. What sets this pair apart is whom it reaches. A counterclaim runs against the opposing party and a crossclaim against a co-party, both already in the case, while the third-party complaint reaches a person who has not yet been heard from. When it appears, the case has four pleadings or more instead of two.

The list names the paper that makes the claim against an outsider, so a defendant brings the outsider in by that pleading and not by letter or motion. A motion asks the court for an order; it does not state a claim that the recipient must admit or deny. The pleading gives the new party notice of exactly what it must answer, and Rule 7(a)(6) gives it the document in which to answer, just as the original answer does for the plaintiff’s complaint.

An exam stem often turns on whether a particular communication actually brought an outsider into the case. Ask whether the claim was filed as a third-party complaint, because a firmly worded letter and a pleading are different papers, whatever the sender intends.

The two homeowners hold the same grievance against the same kind of supplier. Ellison used the pleading that the closed list provides for claims against an outsider, which made the supplier a party with a pleading to answer. Okafor sent a private communication, which the Rules do not recognize as a way to start a claim in the case.

Court-Ordered Reply

The last entry on the list reads “if the court orders one, a reply to an answer.”³⁶ A reply is a pleading in which a party responds to the defendant’s answer, and the opening clause makes its existence depend on a judicial order. Every earlier entry appears in the ordinary course of a case; the reply alone requires a court order, and no party has a right to demand one. The court may order a reply on its own motion or at a party’s request, but occasions for doing so are extremely rare.³⁷

A plaintiff does not have to reply to an answer full of affirmative defenses. When no responsive pleading is required, the answer’s allegations are deemed denied or avoided, and the plaintiff may meet them at trial in any way that would have been open had a reply been proper.³⁸ Deemed denied means the plaintiff is treated as disputing the facts a defense asserts. Deemed avoided means the plaintiff is treated as having an answer to the defense even if those facts are true, and may prove that answer at trial.

The deeming rule is what makes the economy of the system safe. If silence in the face of an answer’s defenses meant that the plaintiff conceded them, every plaintiff would have to ask leave to reply in every case to avoid losing by default. Because the Rules treat the defenses as already contested, the plaintiff can go straight to discovery and trial. For the same reason, the mere fact that an answer raises affirmative defenses is not enough to call for a reply.³⁹

The power to order a reply remains available for the unusual case, such as an answer so tangled that the plaintiff’s position on it cannot be worked out from the complaint and the defenses alone.

The shipper and the lender each faced a defense raised in an answer, and the court’s order is the only fact that turned the lender’s response into a pleading. Complexity alone confers no right on the lender, and a court that sees no need can leave the defense to be met at trial. Do not confuse this reply with the plaintiff’s response to a counterclaim, which Rule 7(a)(3) calls an answer and which the plaintiff files in the ordinary course.