Other Rule 9 Pleading Rules

Rule 9(b), which demands particularity for the circumstances of fraud or mistake, is the best known of the Rule 9 provisions.¹ The rest of the rule governs what a pleader must say about capacity and authority, conditions precedent, official documents, judgments, time and place, and special damages. Each provision matches the detail required to the allegation it covers. Some excuse detail the opponent cannot use, one makes time and place count when a court tests sufficiency, and one demands detail the opponent could not otherwise foresee. Reading each as a trade between the pleader's burden and the opponent's need to know what it must meet makes the set easy to hold.

Capacity and Authority

Rule 9(a)(1) excuses a pleader from alleging three things about the parties: a party's capacity to sue or be sued, a party's authority to sue or be sued in a representative capacity, and the legal existence of an organized association of persons that is made a party. The excuse lapses only when the allegation is required to show that the court has jurisdiction.² Capacity asks whether the party is the kind of litigant the law lets sue or be sued. Authority asks whether a person suing as an executor or a guardian actually holds that role. Legal existence asks whether a group such as a partnership or a union is an entity that can appear in court. A complaint that says nothing on these points is complete as it stands.

The rule also tells an opponent how to put one of these matters in play. A party who wants to raise any of them must do so by a specific denial, which must state any supporting facts peculiarly within that party's knowledge.³ A specific denial aims at one identified point, and a blanket denial of the complaint does not. The allocation has a logic. Excusing the pleader fits the ordinary case, in which an adult plaintiff or an established company sues and a representative holds the appointment she claims, so a recital in every complaint would add sentences nobody disputes. The burden of raising the issue falls on the opponent because the opponent holds the doubt and, usually, the facts behind it. Specificity then gives the pleader notice: a general denial would not reveal which status question is contested, and the pleader would have to prepare to prove all three. The supporting-facts requirement completes the design, because the pleader cannot see facts peculiarly within the opponent's knowledge and cannot answer a doubt it cannot identify.

Two errors recur on exam fact patterns. The first faults a complaint for omitting an allegation of capacity or authority, which reverses the rule, since the omission is harmless. The second treats a general denial as contesting a representative's authority, which overlooks the demand for a specific denial with its supporting facts. One exception completes the picture: where the status allegation helps show jurisdiction, the pleader must make it.

Conditions Precedent

Rule 9(c) gives the two sides of a condition-precedent dispute different burdens. A pleader may allege generally that all conditions precedent have occurred or been performed, but a party denying that a condition precedent occurred or was performed must do so with particularity.⁶ A condition precedent is an event that must happen, or an act a party must perform, before the other party's duty under a contract falls due. Insurance policies supply the standard example: the insurer need not pay until the policyholder gives notice of the loss and files a proof of loss. The two halves of the rule point in opposite directions, so each needs its own explanation.

The general allegation follows from how contracts are built. One agreement can carry many routine conditions, such as notice, inspection, delivery of documents, and a waiting period, and a complaint reciting each one and how it was met would grow long without teaching the defendant anything. The defendant signed the agreement and already knows its conditions. What it needs from the complaint is the plaintiff's claim that the duty sued upon has come due, and one sentence supplies it. The allowance reaches conditions and nothing else: the contract, the breach, and the harm must still be pleaded with enough facts to make the claim plausible under the standard taught earlier in this chapter.

The denial runs the other way because of who holds the information. A defendant who believes a condition was never met knows which one it means, and the plaintiff cannot guess. If the defendant could answer a general allegation with a general denial, the plaintiff would face a dispute over every condition the contract contains, though the defendant contests at most one. Particularity in the denial puts the burden of detail on the party who has the detail: the denier names the condition, the dispute narrows to it, and the plaintiff prepares proof on that point alone. The rule on capacity and authority has the same structure, since an opponent who wants to contest a party's status must say so by a specific denial instead of a blanket one.

The word particularity also appears in Rule 9(b), but there it burdens a different party. Rule 9(b) asks the party who accuses another of fraud to state the circumstances with particularity, so the accused learns what conduct is charged.⁷ Rule 9(c) asks the party who contests an allegation of performance to be particular, so the pleader learns what is actually in dispute. In both rules the detail comes from the party able to supply it, and under Rule 9(c) that party is the one resisting the claim.

Hypothetical Illustration

A policyholder sues an insurer after a fire and alleges, in one sentence, that all conditions precedent to coverage, including notice of the loss and proof of loss, have been performed. The complaint says no more about either, and it suffices, because the general allegation is all the rule asks of the pleader.

The insurer answers that it denies generally that conditions precedent were performed. That denial fails, because it does not tell the policyholder whether the insurer contests notice, the proof of loss, or something else. An insurer that instead denies that the policyholder ever submitted the sworn proof of loss the policy requires has complied. The dispute now rests on a single condition, and the policyholder can gather evidence about the proof of loss without proving notice, inspection, or any other term.

Three misreadings cost points here. A complaint that omits a list of conditions is not deficient, because the general allegation suffices. An answer that disputes performance without naming a condition falls short of particularity, however firmly it is worded.⁸ And Rule 9(c) does not turn on fraud, so applying fraud analysis to a routine contract complaint picks the wrong rule.

Official Documents and Judgments

Two further provisions let one short allegation stand in for a chain of facts. Under Rule 9(d), a pleader alleging an official document or official act satisfies the rule by alleging that the document was legally issued or the act legally done.¹⁰ Under Rule 9(e), a pleader alleging a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer may plead the judgment or decision without showing jurisdiction to render it.¹¹ A pleader who relies on a permit or a judgment usually holds the instrument but not the issuing body's internal history. The rules let that pleader plead the instrument itself without reconstructing how the issuing body reached it.

Hypothetical Illustration

A contractor sues a town for breach of a paving agreement that required a municipal permit, and the complaint alleges that the permit was legally issued. It does not recount the application, the inspector's review, or the vote that produced the permit. Rule 9(d) makes that omission harmless.

A creditor sues to collect on a money judgment that a court in another state entered against the debtor. The complaint names the court, gives the date of entry, and states the amount awarded, but says nothing about how that court came to have power over the debtor. Rule 9(e) excuses the silence on jurisdiction. A second creditor alleges only that the debtor owes money under some earlier judgment, without saying which court entered it, when, or for how much. Rule 9(e) relaxes the showing of jurisdiction and still leaves the pleader to plead the judgment itself, so the second complaint gives the debtor no way to tell what is being enforced.

Time and Place

Rule 9(f) is a single sentence: an allegation of time or place is material when testing the sufficiency of a pleading.¹⁴ The word “material” carries the rule. When a court tests a complaint, what the complaint says about when and where events happened counts, and the court may not set those allegations aside as surplus detail. Time and place do real work in a lawsuit. A date can bear on whether a claim was brought in time, and both allegations let the defendant find the records and witnesses tied to the episode it must answer. The rule does not itself command a pleader to state a date. It says what the allegation is worth once the court weighs the pleading.

The provision matters most beside Rule 9(b). A party alleging fraud must state with particularity the circumstances constituting it, and the when and where of each statement are among those circumstances, as the who, what, when, where, and how formula showed.¹⁵ Rule 9(f) supplies the other half of the thought. Because time and place are material, a fraud complaint that omits them is measured as lacking something that counts, and a complaint that supplies them receives credit for it. The duty to plead them in a fraud case comes from Rule 9(b).

A federal district court decision involving a business called T & M shows the failing side. The only mention of timing anywhere in the complaint was that the defendant's representatives began working with T & M in July 2013, and in opposing dismissal the plaintiffs did not even argue that they had pleaded the “when” of the alleged fraudulent statements. The court held that the fraud claim could not proceed without facts about the timing of the particular representations.¹⁶ A start date for the relationship does not date any statement. A defendant told only that the dealings began in July 2013 cannot tell which of many conversations is charged, and cannot test whether a statement was false when made, because that question has an answer only once the moment of speaking is known. The same decision added that, although intent and knowledge need only be pleaded generally, the complaint alleged them for some of the challenged statements and left them out for others.

Two mistakes follow from misreading the rule. The first treats a pleaded date or place as decoration, when Rule 9(f) makes it part of the sufficiency inquiry. The second treats any date in the complaint as enough, when the date that matters in a fraud case is the date of the statement charged as false, and a date for the start of the dealings does not supply it.

Special Damages

Rule 9(g) closes out the Rule 9 provisions with a single sentence: if an item of special damage is claimed, it must be specifically stated.¹⁹ The sentence rests on a distinction between two kinds of loss. General damages are losses that follow naturally from the kind of wrong alleged, so anyone who commits that wrong can expect to answer for them. Special damages, in the usual sense, are losses that are not the necessary result of the wrong and arise instead from the plaintiff's particular circumstances, such as the profit a specific contract would have produced before the wrong destroyed it. A complaint claiming only general damages needs no itemization. A complaint claiming an item of special damage must name the item.

The line falls where it does because of what each loss tells the defendant. An ordinary loss follows from the wrong itself, so a general demand for damages already signals what the defendant must meet. An unusual loss depends on facts only the plaintiff holds, such as a particular resale contract and the profit it promised. A defendant told merely that the plaintiff wants “damages” cannot learn that such a loss is coming. It cannot investigate whether the contract existed, test the profit figure, or gather the records and witnesses to contest the item, and it would first meet the claim at trial. Requiring the item to be specifically stated gives notice early enough to prepare. That is the interest in fair notice that runs through Rule 8 and Rule 9(b), applied to one category of loss. “Specifically stated” asks the pleader to identify the item itself, since a bare demand for damages does not reveal which unusual loss is claimed.

Hypothetical Illustration

A buyer sues a seller for failing to deliver a printing press, and the complaint demands “damages” for the breach and says nothing more. Months later the buyer announces that it will seek the profits it lost on a contract to print a catalog for a named customer, a contract that depended on the press. That loss is not the ordinary result of a failed delivery, and the seller was never told it was claimed. The complaint is deficient as to that item.

A second buyer, suing a different seller over the same kind of failure, pleads that the missed delivery caused the cancellation of its catalog contract with a named customer, and it claims the profits lost on that contract. The seller now knows which loss to investigate and contest, and the pleading complies. Both buyers may also claim the difference between the contract price and the market price of a press without any itemization, because that loss follows naturally from the breach.

Two opposite instincts lose points here. One demands an itemized statement of every dollar figure in a complaint, which overlooks that general damages need none. The other treats damages as a remedy outside the pleading rules, which overlooks that Rule 9(g) reaches any item of special damage that is claimed. And because the rule speaks of an “item,” the shortfall attaches to the unstated loss; it says nothing by itself about whether the underlying claim satisfies the plausibility standard taught earlier in this chapter.