"Plaintiff repeats and realleges the averments in paragraphs x through y as though fully set forth herein"
Moral Turpitude
beginning of each new section?
What bad thing might occur if the drafter omits it?
Stuart Bronstein
Each cause of action is a separate claim, and should be stated in
sufficient detail that it stands on its own. The language you are
talking about is the standard way of making sure each cause of action
is complete and (relatively) self contained.
Stu
nos...@isp.com
> Why is this or similar statement injected into a
> pleading at the beginning of each new section?
U.S. state and federal civil litigation has been evolving especially
during the past seventy years or so towards a putatively desired (and
for the most part actually desirable) goal of "notice pleading" in
which "concise" (or "short and plain") statements of the operative
facts which if later proven would entitle the plaintiff to the relief
sued for pursuant to allegations, in preferably also concise/simple
form, of the legal theory claimed to justify the grant of such relief.
The basic underlying policies favoring modern/simplified such pleading
concern trying to avoid or at least substantially mitigate a feature
of past especially common law "writs" and, anyway, sometimes differing
and yet complex "causes of action" which, where/when chosen or
required to be alleged, also frequently entailed a variety of
complicated and thus frequently troublesome pitfalls for litigants and
lawyers (what if this needed "jot" or that required "tittle" were
overlooked?) which invited expensive and time-consuming procedural
litigation sometimes resulting in unjust dismissals of what might be
merited lawsuits.
But also to avoid duplicative/successive litigations and yet to insure
the giving of fair notice to the party being sued of the theories of
recovery plaintiff invokes and relies on, even modern rules of
pleading allow for -- and, in most cases, in effect require (on pain
of the plaintiff losing the right later to sue on a not earlier
alleged theory of recovery if based on basically the same set of facts
once previously litigated) -- alternatively alleged theories of
recovery.
(E.g., in a lawsuit seeking recompense for alleged personal injury,
maybe a theory of "negligence" but also, separately/indepenendtly,
that defendant undertook a "contractual" or ought be deemed to be
obliged by "quasi-contractual" obligation not to have caused the
alleged injuries and, perhaps too, that defendant ought be held liable
by reason of some alleged independent statutory basis of recovery
apart from whether defendant was/wasn't "negligent" or obliged by some
explicit or quasi-contractual obligation, etc., if all the alleged
differing theories of recovery allegedly arise from basically the same
factual grouping of "transactions and occurrences" sued upon.)
If done correctly, rather than repeat word for word what has been
already alleged elsewhere in a complaint, one more or less efficient
way to achieve this latter end is to incorporate by reference whatever
identified earlier alleged statements in the pleading are claimed to
be needed to support whatever the alternative theory of recovery in a
particular alternatively or commutatively alleged "cause of action"
(or separately stated "claim") may be.
(Similar/parallel rules of pleading apply to "affirmative defenses"
and to "counterclaims" or "cross-claims" etc. in an answer.)
> What bad thing might occur if the drafter omits it?
Perhaps otherwise avoidable costly/delaying procedural litigation
which in some cases even these days still occurs and can even result
in the dismissal of one or more alleged "claims" (or "causes of
action"). However, separate but related procedural rules and judicial
decisions can mitigate and in some cases effectively avoid at least
the ultimate such result (a dismissal) by invoking and making
available to the pleader what are often characterized as "liberal"
policies allowing for and in some cases strongly favoring amending or
supplementing an earlier defective pleading.
Note, too, that sometimes "bad things" can occur to the pleader who
too glibly "repeats, realleges, and here incorporates by reference
paras. __, __, etc." allegations if, e.g., the pleader in so doing
undertakes a burden of proof given whatever is the alleged theory of
law at issue that might not be meetable and yet which also might not
be otherwise required to undertake.
Mike Jacobs
> Why is this or similar statement injected into a pleading at the
> beginning of each new section?
It's called "incorporation by reference". It's a simple, paper-and-
ink-saving alternative to fully typing out the exact same language
more than once in a complaint. Procedural law and good form allows
multiple claims to be joined, but require each separate claim in a
complaint to be set forth in a separate section, or "count", and each
such "count" of a complaint has to allege _all_ the essential elements
of its cause of action, or be subject to dismissal. If some or all of
the same operative facts of a case support more than one cause of
action (e.g., negligent design, breach of warranty, and strict
liability in tort, in a product liability case; or separate injury
claims for each of several accident victims who joined in one suit as
co-plaintiffs) you don't have to repeat all the facts about how the
accident happened, what part of the widget broke, etc. if you do it
once and then repeat the above clause at the beginning of each new
count.
> What bad thing might occur if the drafter omits it?
Any count that fails to contain allegations of every essential element
of that claim, either directly or incorporated by reference, is
subject to early dismissal, for failure to state a cause of action.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Larry
Moral Turpitude <M...@wonderful.com> wrote:
Generally, it means that the information in paragraphs X through Y apply
to the specific claim being discussed in that section of the pleading.
Daniel R. Reitman
wrote:
>Why is this or similar statement injected into a pleading at the
>beginning of each new section?
It's easier than repeating the referents.
>What bad thing might occur if the drafter omits it?
The claim might be subject to striking for insufficient statement of
facts (or claim, depending on local pleading rules).
Daniel Reitman
Mike
> On 18 Jun 2007, Moral Turpitude <M...@wonderful.com> wrote:
>
>> Why is this or similar statement injected into a
>> pleading at the beginning of each new section?
>
> U.S. state and federal civil litigation has been evolving especially
> during the past seventy years or so towards a putatively desired (and
> for the most part actually desirable) goal of "notice pleading" in
> which "concise" (or "short and plain") statements of the operative
> facts which if later proven would entitle the plaintiff to the relief
> sued for pursuant to allegations, in preferably also concise/simple
> form, of the legal theory claimed to justify the grant of such relief.
Too bad your posts in this newsgroup haven't also evolved towards a goal
of '"concise" (or "short and plain") statements.'
Have you EVER tried talking in plain English for a change?