Motions Are Not Pleadings

Motions Are Not Pleadings

In most federal cases the pleadings are two papers, a complaint and an answer, with an answer to a counterclaim or crossclaim added when one is filed.¹ A lawsuit generates far more paper than that, and much of it asks the judge to do something. Rule 7(b)(1) sends those requests into a separate category with one sentence: "A request for a court order must be made by motion."² A motion asks the court for an order, such as dismissing the complaint or compelling a response to a discovery demand. Rule 7(a) lists the documents that state claims and defenses, and Rule 7(b), "Motions and Other Papers," covers requests for orders separately.³

The two kinds of paper do different work. A pleading puts allegations on the table, and the pleading on the other side admits or denies them. An admission removes a potentially contested issue from further development, so the parties can concentrate on the points they actually dispute.⁴ A motion asks for a ruling, so it contains nothing for the other side to admit or deny. The stock example is the Rule 12(b)(6) motion to dismiss for failure to state a claim, which a defendant may file before answering. The paper arrives early, it is in writing, and it is addressed to the court, but none of that makes it a pleading. It is a motion because it asks for an order dismissing the complaint and states no claim or defense of its own. Classify a paper by what it asks the court to do, not by when it is filed or whether it is written.

Rule 7(b)(1) then says what every motion must contain. The three requirements work as a set.

1. The motion must be in writing unless it is made during a hearing or trial.⁵
2. The motion must state with particularity the grounds for seeking the order.⁶
3. The motion must state the relief sought.⁷

A written motion lets the opposing party and the judge read the request before anyone responds, so the other side can answer what is actually being asked instead of reacting to a surprise. The hearing-or-trial exception covers the situation in which that purpose is already served. When the judge and the lawyers are together and the proceeding is under way, a request can be made aloud and the opponent can answer on the spot. A rule demanding a written motion first would stall the proceeding for the sake of paper no one needs. The exception reaches only the first requirement, however. Nothing in the text excuses an oral request from stating its grounds or the relief it seeks.

The other two requirements let the court rule without guessing. Particular grounds tell the opponent what to answer and tell the judge what to evaluate, and a motion that says only that an order is justified gives neither of them anything to work with. The statement of relief supplies the other half. The grounds explain why the court should act, and the relief names the order the court is asked to enter. A motion with grounds and no relief leaves the judge to work out what to sign, and a motion with relief and no grounds asks the court to act without a reason. With both, the judge can say yes or no to a defined request.

The two oral requests show how far the exception reaches. Both were excused from writing, and only the first satisfied the rest of the rule. An exam question that sets a request in a courtroom usually tests whether you carry the particularity and relief requirements into the hearing, instead of assuming that the move from paper to speech relaxes the whole rule.

Because motions fall outside the closed list of pleadings, it is tempting to treat them as informal papers free of the form demands placed on pleadings. Rule 7(b)(2) closes that gap: "The rules governing captions and other matters of form in pleadings apply to motions and other papers."⁸ The caption rule asks, among other things, for the court's name, a title, and a file number.⁹ Those items let a clerk or judge match any paper to its case and see at a glance what the paper is, whether it carries the title of a complaint or of a motion to dismiss. Without Rule 7(b)(2), the form rules would reach only the handful of pleadings and leave the many motions and other papers in a typical case unidentified. The caption, party-name, paragraph, and count rules taught next are written in terms of pleadings, yet through Rule 7(b)(2) they govern a good deal more than complaints and answers.