Obsolete Date: 3/1/2011
(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. If a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued, in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which must include such supporting particulars as are peculiarly within the pleader's knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred .A denial of performance or occurrence shall be made specifically and with particularity.
(d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law; and in pleading any ordinance or regulation of a county, city, village, or other political subdivision, or any special, local or private statute or any right derived therefrom, the laws of another jurisdiction, it is sufficient to refer to the ordinance, regulation, statute, or law by its title and date of its approval or in some other manner with convenient certainty.
(e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.
(h) Name of Party. When the pleader shall be ignorant of the name of a party, such party may be designated in any pleading or proceeding by any name and when the true name shall be discovered, the pleading or proceeding may be amended accordingly.
Rule 9 was amended, effective March 1, 1990; March 1, 2011.
Rule 9 is adapted from Fed.R.Civ.P. 9.
Rule 9 was amended, effective March 1, 2011, 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.
Subdivision (a) was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
SOURCES: Joint Procedure Committee Minutes of January 24, 2008, pages 16-17; April 20, 1989, page 2; December 3, 1987, page 11; September 20 21, 1979, page 7; Fed.R.Civ.P. 9.
CROSS REFERENCE: N.D.R.Civ.P. 8 (General Rules of Pleading), N.D.R.Civ.P. 10 (Form of Pleadings), N.D.R.Civ.P. 12 (Defenses and Objections-When and How Presented-By Pleading or Motion-Motion for Judgment on Pleadings), and N.D.R.Civ.P. 15 (Amended and Supplemental Pleadings).