(a) Claims for Relief. A pleading
which sets forth that states a
claim for relief , -- whether
an original claim, a counterclaim, cross-claim a crossclaim, or
a third-party claim , -- must
(i) (1) a short and plain statement of the claim showing
that the pleader is entitled to relief ,;
(ii) (2) a demand for judgment for the relief
the pleader seeks. Relief sought, which may
include relief in the alternative or of several different types may be
demanded of relief.
-Form of and Denials.
(1) In General. In responding to a pleading, a party must:
A party shall (A) state in short and plain terms
the party's its defenses to each claim asserted
against it; and
shall (B) admit or deny the averments upon which the
adverse party relies allegations
asserted against it by an opposing party.
(2) Denials -- Responding to the Substance. A denial
If a party is without
information sufficient to form a belief as to the truth of an averment, the party shall so state
and this has the effect of a denial. Denials must fairly meet
respond to the substance of the
averments denied allegation.
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
(4) Denying Part of an Allegation.
If a pleader A party
that intends in good faith to deny
only a part or a qualification of an averment, the pleader shall specify
so much of it as of an
allegation must admit the part that is true and material and shall deny
only the remainder rest.
Unless the pleader intends in good faith to controvert all the averments of the preceding
pleading, the pleader may make denials as specific denials of designated averments or
paragraphs, or may generally deny all the averments except such designated averments or
paragraphs as the pleader expressly admits; but, if the pleader does so intend to controvert
all its averments, the pleader may do so by general denial, subject to the obligations set forth
in Rule 11.
(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny. An allegation -- other than one relating to the amount of damages -- is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
(c) Affirmative Defenses. In
pleading responding to a
preceding pleading, a party shall set
forth must affirmatively state any avoidance or affirmative defense,
-- accord and satisfaction
-- arbitration and award
-- assumption of risk
-- contributory negligence
-- discharge in bankruptcy,:
-- failure of consideration
-- injury by fellow servant
-- res judicata
-- statute of frauds
-- statute of limitations
and any other matter constituting an avoidance or affirmative defense.
(2) Mistaken Designation.
When If a party
has mistakenly designated designates a defense
as a counterclaim, or a counterclaim as a defense, the court on terms
must, if justice so
requires, shall treat the pleading as if there had been a proper
designation though it were
correctly designated, and may impose terms for doing so.
Effect of failure to deny. Averments in a pleading to which a responsive
required, other than those as to the amount of damage, are admitted when not denied in the
responsive pleading. Averments in a pleading to which no responsive pleading is required
or permitted shall be taken as denied or avoided. [Transferred to Rule 8(b)(6)]
(e) Pleading to be Concise and Direct
(1) In General. Each
averment of a pleading allegation
must be simple, concise, and direct.
No technical forms of pleading or motions are form is required.
(2) Alternative Statements of a Claim or Defense. A party may set
forth out two or more
statements of a claim or defense alternatively or hypothetically, either in one
a single count
or defense or in separate counts or defenses ones. If a party
makes two or more statements
are made in the alternative statements, and one of them if made
independently would be
sufficient, the pleading is not made insufficient by the insufficiency of one or
more of the
alternative statements sufficient if any one of them is sufficient.
(3) Inconsistent Claims of Defenses. A party may
also state as
many separate claims or
defenses as the party it has, regardless of consistency and
whether based on legal or on
equitable grounds or on both. All statements made are subject to the obligations set forth in
Construction of Construing Pleadings. All pleadings
shall Pleadings must be so
construed so as to do substantial justice.
Rule 8 was amended, effective March 1, 1990; _____________.
This rule is
identical to Rule based on Fed.R.Civ.P. 8 ,
FRCivP, except for the deletion of
references to a showing of grounds for jurisdiction in subdivisions (a) and (b) and maritime
grounds in subdivision (d)(2).
Rule 8 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivisions (a), (b), and (e) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Previous to the adoption of N.D.R.Civ.P., a complaint or counterclaim was
allege the pleader's "cause of action." N.D.R.C. 1943 § 28-0702. Because of
considerable confusion among the courts as to what constituted a "cause of action," Rule 8
was cast in language designed to finesse the confusion as well as to simplify the pleader's
Wright and Miller put it this way:
"The substitution of 'claim showing that the pleader is entitled to relief' for code
formulation of the 'facts' constituting a 'cause of action' was intended to avoid the
distinctions drawn under the codes among 'evidentiary facts,' 'ultimate facts,' and
'conclusions' and eliminate the unfortunate rigidity and confusion surrounding the words
'cause of action' that had developed under the codes. The draftsmen of the federal rules
obviously felt that the use of a new formulation would emphasize the modern philosophy
of procedure espoused by the federal rules, destroy the viability of the old code precedents,
and encourage a more flexible approach by the courts in defining the concept of claim for
relief." Wright and Miller, Federal Practice and Procedure: Civil § 1216.
The leading case of Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80
makes clear that a complaint is sufficient if plaintiff would be entitled to relief under any
state of facts that could be proven in support of the claim alleged.
While the pleading of "facts" constituting a "cause of action" may suffice as a
a "claim for relief" under this rule, the pleader runs the risk of pleading more than "a short
and plain statement of the claim" as well as pleading "evidentiary facts" and "conclusions."
These matters are subject to a motion to strike under Rule 12(f). See, 4 Cyclopedia of
Federal Procedure (3d ed.) § 14.157.
For historical background of the development of Rule 8, see R. W. Miller, Civil
of the Trial Court in Historical Perspective (1952), Chapters VI, VII and XIII.
Sources: Joint Procedure Committee Minutes of January 24, 2008, page 16; April 20, 1989, page 2; December 3, 1987, page 11; April 26, 1984, page 17; November 29-30, 1979, pages 3-4; September 20-21, 1979, page 6; Rule 8, FRCivP.
Superseded: N.D.C.C. § 28-01.1-03
; N.D.R.C. 1943 §§
28-0701, 28-0702, 28-1710, 28-1715, 28-0729, 28-0731, 28-0732, 28-0733, 28-0740, 28-0741,
Rules N.D.R.Civ.P. 7 (Pleadings Allowed -
Form of Pleadings),
N.D.R.Civ.P. 11 (Signing of Pleadings), N.D.R.Civ.P. 12 (Defenses and
Objections - When
and How Presented - By Pleading or Motion - Motions for Judgment on Pleadings),
N.D.R.Civ.P. 15 (Amended and Supplemental Pleadings), N.D.R.Civ.P. 38
(Jury Trial of
Right), and N.D.R.Civ.P. 44.1 (Determination of Foreign Law)