More Definite Statement

Rule 12(e) lets a party move for a more definite statement of a pleading that is “so vague or ambiguous that the party cannot reasonably prepare a response.”¹ The motion reaches only a pleading that the rules allow a party to answer, and its objection is narrow: the words on the page do not tell the responding party what is claimed. The movant says nothing about the claim’s strength. A pleading may describe an excellent claim, but if the defendant cannot tell which events the plaintiff means, the defendant cannot sensibly admit one allegation and deny another.

A motion under Rule 12(b)(6) diagnoses a different defect. It asserts “failure to state a claim upon which relief can be granted,”² which is a challenge to legal sufficiency, and a defendant who wishes to attack the legal sufficiency of a complaint, even in part, uses that motion.³ Rule 12(e) attacks no legal theory. It asks the pleader to say what the pleading means, and the court answers by ordering a restatement, not by dismissing the case.⁴

The separate remedy rests on a view of what pleading flaws deserve. Under the older pleading practice, a failure to comply with the pleading rules ended the action with no leave to replead, and the pleadings acted as a screening device that kept many cases from going forward.⁵ Modern practice treats a curable flaw as curable. Leave to amend is routine on a motion to dismiss when the complaint merely lacks a factual allegation, because the flaw may be a pleading oversight that amendment cures.⁶ A more definite statement applies the same instinct to an unclear pleading: it asks the pleader to supply what the defendant needs in order to answer, and it spares the defendant from guessing.

The subsections below follow the motion in the order a lawyer meets it. The first sets the threshold: which pleadings qualify and how vague they must be. The second covers the mechanics of making the motion and the consequence when a pleader ignores an order to restate.

The Vagueness Threshold

Rule 12(e) allows a party to “move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.”⁷ The movant must satisfy two conditions. The pleading must be one the rules allow the movant to answer, and its vagueness or ambiguity must reach the point where the movant cannot reasonably prepare that answer. The deadline and the contents of the motion matter only after both conditions are met, and the next subsection takes those up.

The first condition follows from the motion’s purpose. A more definite statement exists to let the receiving party frame an answer, so a pleading that calls for no answer leaves the motion nothing to accomplish. The motion is never proper when no responsive pleading is permitted.⁸ The rule’s phrase, “a pleading to which a responsive pleading is allowed,” covers any pleading that calls for an answer, so a plaintiff who must answer a counterclaim may move against one that is too unclear to answer.⁹

The second condition sets the real limit, because the test asks whether the party can respond and not whether it would like to know more. A defendant responds by admitting or denying, so a pleading is answerable when the defendant can tell which allegations it admits and which it denies. When a pleading is definite enough to answer, the court should deny the motion and leave the opponent to obtain the particulars needed for trial through depositions, interrogatories, and similar discovery.¹⁰

The limit reflects the motion’s history. Rule 12(e) descends from an equity procedure for obtaining a bill of particulars, and that procedure made more sense when the rules did not allow far-ranging discovery.¹¹ The Rule’s wording sets a high bar, and the treatise stresses the word: the motion is available only when the pleading “is so vague or ambiguous that the party cannot reasonably prepare a response,” and it keeps a limited role when a complaint is “hopelessly garbled and confused.”¹² The motion is rare, and it does not substitute for discovery.¹³

A third limit keeps the motion from turning against the merits. A party may not use it to force the plaintiff to add particulars that may make the complaint vulnerable to a motion to dismiss.¹⁴ A defendant who wants to attack legal sufficiency has a proper device in Rule 12(b)(6).¹⁵ The bar makes sense. If a defendant could demand detail and then move to dismiss on whatever the detail revealed, a motion meant to help a party answer would become a means of engineering dismissal.

Two kinds of pleading regularly cross the threshold. The first is a conclusory allegation of fraud. The Rules generally pursue a liberal pleading policy, and Rule 9(b) departs from it by requiring particularity in pleading the circumstances constituting fraud, while allowing malice, intent, knowledge, and other conditions of mind to be alleged generally.¹⁶ Suppose a class representative alleges fraud and misrepresentation in the sale of high-tech alarm clocks to 300 buyers, each said to have lost $250, but never describes the misrepresentations. The seller cannot tell which statements it must admit or deny, and it can probably obtain a more definite statement.¹⁷ The second kind is the bare-bones complaint. A complaint that alleges only that a wrong occurred, and pleads none of the facts giving rise to the injury, does not provide adequate notice, as the Fifth Circuit put it in Beanal v. Freeport-McMoran, Inc., and a defendant cannot frame a specific response to it.¹⁸

Untidiness is not unintelligibility. The motion’s role is limited to complaints that are hopelessly garbled and confused.¹⁹ A complaint whose counts are poorly separated, or whose structure could be tidier, still gives the defendant what it needs if the defendant can work out what is claimed. The defendant can then reasonably prepare a response, and the motion fails. A garbled pleading leaves the defendant guessing what is claimed, while an untidy one does not.

In applying the threshold, ask what the defendant would have to do in order to answer. The amount of missing detail is a poor guide to the result.

Procedure and Noncompliance

The second and third sentences of Rule 12(e) supply the mechanics. The motion “must be made before filing a responsive pleading and must point out the defects complained of and the details desired.” If the court orders a more definite statement and the pleader does not obey within 14 days after notice of the order, or within the time the court sets, the court may strike the pleading or issue any other appropriate order.²¹ Each direction follows from the motion’s purpose, which is to have the pleader clarify a pleading so that the movant can answer it. This subsection follows the motion from filing to the movant’s answer, then asks what happens when the pleader ignores the order.

The requirement that the motion precede any responsive pleading follows from the claim the motion makes. A party who moves for a more definite statement says the pleading is too unclear to answer, and an answer would belie that claim, since admitting some allegations and denying others shows the party understood the pleading well enough to respond. The rule therefore makes the motion an alternative to answering, available only until the answer is filed.

The content requirement does different work. A motion that says only that a complaint is vague gives the judge nothing to order, because a direction to be clearer leaves the dispute over what clearer means for the next round. Requiring the movant to point out the defects and the details desired turns the motion into a blueprint for the order: the court can direct the pleader to supply particular facts, and the pleader knows what to fix.

The details desired must be those the movant needs in order to admit or deny, such as which shipments, on what dates, and under what contract. Evidence the movant would like to have for trial belongs to discovery, and the motion is not a substitute for it.²² A request that sweeps in everything the defendant would like to know asks for more than a party who can already frame an answer may demand.

When the court grants the motion, two periods run in sequence. The pleader has 14 days after notice of the order, or the time the court sets, to serve the more definite statement.²³ The movant’s time to answer then runs from service of that statement, because the responsive pleading must be served within 14 days after the more definite statement is served.²⁴

The sequence keeps the movant from answering twice. If Dalton’s answer fell due on the original schedule, Dalton would answer the very pleading it called unanswerable, and the clarified complaint would invite a second round. Tying the deadline to service of the restatement means the defendant answers the pleading that will govern the case. It also gives the plaintiff every reason to comply quickly, since the defendant’s clock does not start until the restatement is served. The timing section later in this chapter generalizes this adjustment of the answer deadline.

The order carries a consequence because otherwise the movant would be left facing a pleading the court has already found unanswerable. If the pleader does not obey within 14 days after notice of the order, or within the time the court sets, the court may strike the pleading or issue any other appropriate order.²⁵ Striking removes the pleading from the case, so striking a complaint leaves the plaintiff with no pleaded claim. That is the severe end of the range, and the rule says the court “may” strike, so the judge chooses a response that fits. The authority to issue any other appropriate order leaves room for something less drastic.

The motion also has a place in the defendant’s overall sequence of Rule 12 motions. A defendant who files a pre-answer motion must raise the vagueness objection in it if the objection was then available. The unclarity shows on the pleading’s face as soon as the pleading is served, so a defendant who left the objection out cannot expect a second pre-answer motion to raise it. The exception is a defendant who never received the complaint. That defendant could hardly have known the complaint was incomprehensible, so the defense was not available when the first motion was filed, and a second motion on this ground is allowed.²⁶ The consolidation rule behind this result is taken up in the timing section later in this chapter.

Joining the vagueness objection with other objections in that first motion costs nothing in federal court. The Federal Rules take a more forgiving approach than the one Koplin v. Saul Lerner Co. illustrates: a defendant may raise other objections at the same time as an objection to personal jurisdiction without waiving the jurisdictional objection.²⁷ A defendant served with an unclear complaint can therefore ask for a more definite statement and, in the alternative, move to dismiss for failure to state a claim. Rule 12(b) provides that no defense or objection is waived by joining it with others in a motion, and a Rule 12(b)(6) motion may target some claims while Rule 12(e) targets others, without any logical inconsistency.²⁸