Numbered Paragraphs and Counts

Numbered Paragraphs and Counts

Once the caption is in place, Rule 10(b) governs how the body of the pleading is organized. Its first sentence sets the design: "A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances."¹ The rest of the subdivision lets a later pleading refer by number to an earlier paragraph and calls for separate counts or defenses when separation would promote clarity.² Rule 10(c) adds that a statement in one part of a pleading may be adopted by reference in other parts.³

These rules serve the party who must answer the pleading. An answer admits or denies each allegation of the complaint, or states that the defendant lacks knowledge or information sufficient to form a belief, which has the effect of a denial.⁴ A defendant can respond only to what it can point to. A complaint that pours the collision, the injuries, and the theory of fault into one unbroken narrative leaves the defendant guessing which sentence a given denial covers. Numbered paragraphs, each confined to one set of circumstances, give the defendant a unit to admit, deny, or profess ignorance about, and they give a later pleading a fixed address to cite by number.

The form rules demand little that a careful lawyer would not do unprompted. The Supreme Court has observed that "[w]e no longer insist upon technical rules of pleading, but it will ever be difficult in a jury trial to segregate issues which counsel do not separate in their pleading, preparation or thinking," and the rule commands only what a lawyer who had analyzed the case clearly would do in any event.⁵ That explains why Rule 10(b) speaks of what is "practicable" and of what "would promote clarity." The emphasis falls on clarity and practicality, not on a mechanical rule of form.

Rule 10 also answers a different question from the one Rule 8 answers. Rule 8 requires "a short and plain statement of the claim showing that the pleader is entitled to relief," which tests whether the complaint alleges enough; Rule 10 tests how the allegations are arranged.⁶ A complaint can be numbered and divided into counts yet allege too little to state a claim, and a complaint that alleges enough can be so badly organized that the defendant cannot tell what to answer. The last section of this chapter shows how courts respond when the organization fails. The sections below take the numbered paragraph first, then the separate count or defense, which groups paragraphs by transaction, and finally adoption by reference.

Numbered Paragraphs

Rule 10(b) places two requirements on each pleading and grants one permission. A party must state its claims or defenses in numbered paragraphs, and each paragraph must be "limited as far as practicable to a single set of circumstances." A later pleading may "refer by number to a paragraph in an earlier pleading."⁷ Because the Rule speaks of claims or defenses, it governs an answer's defenses as well as a complaint's claims. The numbering comes first in the logic of the scheme, because the defendant's whole response depends on it.

A defendant must answer each allegation, and the answer either resolves a fact by admission or, through denial, sends the point into fact-gathering.⁸ An admission removes a potentially contested issue from further development, so the parties can concentrate on their real disagreements.⁹ That duty is workable only when the allegations arrive in units the defendant can point to, and numbered paragraphs supply those units, so the answer can respond allegation by allegation. One federal opinion describes the two form requirements as a pair: Rule 8 calls for a short and plain statement of the claim, Rule 10(b) calls for numbered paragraphs each limited to a single set of circumstances, and together they "establish the minimum pleading requirements."¹⁰

Numbering alone would accomplish little if each numbered paragraph held a bundle of unrelated facts, which is why the Rule also limits what a paragraph may contain. A response attaches to the whole paragraph, so a defendant can answer cleanly only when the paragraph asserts one thing or a closely connected set of things. When a paragraph fuses facts the defendant would answer differently, the defendant must take it apart in the answer, and a later reader cannot tell from the paragraph number which part was conceded.

A complaint that runs unrelated subjects together shows the problem, and a properly built complaint shows the cure.

Every response in the second version is unambiguous, and a reader can see at a glance that the collision is conceded while the red light is contested. The numbers give each response an address, and the single-subject limit ensures that what sits at the address can be answered in one word.

Paragraph 3 in the second version names a date, a place, and an event, yet it states a single set of circumstances, because those details describe one occurrence that a defendant can admit or deny together. The qualifier "as far as practicable" makes the limit a standard of sensible division, not a rule of one sentence per paragraph. A paragraph that carries a closely linked detail, or that runs several sentences describing the same event, therefore complies. The departure that matters is the one in Marsh's first complaint, where unrelated subjects are fused so that the defendant cannot answer one without answering all. Whether the allegations are enough to state a claim is a separate question under Rule 8.

The permission to refer by number follows from the same design. Because each paragraph carries a stable number, a later pleading can point to it instead of copying it out. An answer that states that paragraph 3 is admitted and paragraph 4 is denied identifies exactly the allegations it means, repeats none of them, and keeps both sides looking at the same text. Rule 10(c), taken up below, extends the idea by letting a statement in one part of a pleading be adopted by reference in other parts.¹¹

Separate Counts and Defenses

The third sentence of Rule 10(b) adds a duty of separation to the numbered-paragraph requirement. If doing so would promote clarity, each claim founded on a separate transaction or occurrence, and each defense other than a denial, must be stated in a separate count or defense.¹³ A count is a separately stated claim for relief within a pleading, and a separate defense is the parallel unit on the answering side. Numbered paragraphs supply the units a defendant can admit or deny one at a time, and counts and separate defenses group those units so a reader can see which facts back which claim and which defense. The two halves of the sentence draw their lines in different places. Claims are separated by the transaction or occurrence on which each rests, and defenses are separated according to whether each is a denial. Both halves sit under the same condition, that separation promote clarity, and that condition controls how strictly the sentence is applied.

The reason for separating claims by transaction or occurrence is practical. Claims that arise from different events usually involve different facts, witnesses, and proof, so a defendant answering a pleading that runs them together cannot tell which event a given denial addresses. The difficulty carries into trial, because issues that counsel never separated in the pleadings are hard to separate again in front of a jury.¹⁴ A court reading a pleading for compliance therefore asks a functional question. In Superior Edge, Inc. v. Monsanto Co. the court framed the ultimate question regarding the sufficiency of pleadings under Rules 8 and 10 as "whether the theory and basis of the various counts are easily distinguishable."¹⁵ That test gives the separate-count sentence its working meaning.

The trigger in the text is the separate transaction or occurrence, which is narrower than a separate legal theory. A plaintiff who advances two theories that rest on a single collision has not pleaded claims founded on separate occurrences, so the sentence does not automatically demand separate counts for them. Whether division is still wise comes back to the clarity condition and to the question Superior Edge poses, which is whether a reader can tell the theories and their factual bases apart.

Defenses divide along a different line because they do a different job. A defendant must set out any avoidance or affirmative defense in its answer,¹⁶ and each one typically rests on its own facts and invites its own proof. Limitations turns on dates and filing, and failure to mitigate turns on what the plaintiff did after the injury, so stating them separately lets the court and the plaintiff see each defense on its own footing and rule on one without disturbing another. A denial introduces no new facts. It leaves the plaintiff to prove the allegation, and a statement that the defendant lacks knowledge sufficient to form a belief has the effect of a denial, so it travels with the denials.¹⁷ Treating every sentence of an answer as a defense that needs its own heading is the usual error here, and the exception for denials exists to prevent it.

How many defenses must an answer state separately when it denies that the defendant was the driver, pleads the statute of limitations, and pleads failure to mitigate?

The answer is two, because two of the three matters are defenses other than denials. The clarity condition also explains why courts apply the sentence flexibly. A pleading that merges separate events into one undifferentiated count, leaving the other side unable to respond, falls on the wrong side of the line. A short pleading whose counts and defenses are easy to tell apart does not, and the way courts respond to the first kind of pleading is taken up in the last section of this chapter.

Adoption by Reference

Rule 10(c) opens with a permission that saves a pleader from copying: "A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion."¹⁹ To adopt a statement by reference is to point to words already on the page, usually by paragraph number, and to tell the reader to treat them as if they were written out again at that spot. The numbering rule makes the pointing possible, because a later passage can refer by number to a paragraph that has a stable address.²⁰ A second sentence addresses a different kind of material: "A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."²¹

The reason for the first sentence shows up in any pleading with more than one count. Every count needs the same background, meaning who the parties are, when the agreement was made, and what happened afterward. If each count had to restate that background in full, the pleading would grow with every claim added, and each extra copy would be another place for the wording to drift. As the court in Superior Edge put it, quoting an earlier decision, Rule 10(c) "was adopted to encourage pleadings that are short and free of unneeded repetition," and courts frequently let a party meet the pleading requirements by incorporating other paragraphs within the same complaint or counterclaim.²² A short pleading also helps the party who must respond, since the defendant reads the background once and then sees what each count adds to it.

The text names three places where an adopted statement may land: elsewhere in the same pleading, in another pleading, or in a motion.²³ A later count can therefore pick up the facts of an earlier paragraph, a later defense in an answer can pick up an earlier paragraph of that answer, and a motion can rely on statements already made in a pleading on file without retyping them.

The second sentence of the rule rests on a different mechanism, which is attachment. When a claim depends on a written instrument such as a lease, a note, or a contract, the instrument is the best statement of its own terms. Attaching a copy puts the document itself before the court as part of the pleading, and the pleader avoids retyping it or describing it from memory. The phrase "for all purposes" carries no stated limit, so an attached instrument is not a side document that the court may or may not consult.²⁴

Does a complaint that merely mentions a document put that document into the pleading? The rule names attachment as the route for a written instrument and adoption by reference as the route for a statement already in the pleading.²⁵ Nothing in it makes a document part of the pleading simply because the pleading mentions it.

Both tenants made the same kind of allegation about a document, yet only the first pleading carries its document inside it. The first tenant attached the lease, and the second tenant only described the amendment. A description gives the court a report about the paper, whereas an attachment gives the court the paper itself.

The permission to adopt has an edge. Some courts have found violations of Rule 10(b) and required repleading where "excessive incorporation by reference from one count to another" leaves the other party unable to respond reasonably, or leads to considerable unnecessary matter in the pleading.²⁶ The tenant above adopted a block of common background facts, which is the use the rule was written for. Carrying every earlier count into every later one is a heavier step, because it imports other claims along with the background, and the discussion of excessive incorporation below takes up where courts draw that line.