Peyser, Sanford A.

St. John's University School of Law

St. John's Law Review Volume 18 Number 2 Volume 18, April 1944, Number 2 Article 6 July 2013 Sufficiency of Complaint Under Federal Rules--Revolution of Objectives in Procedure Sanford A. Peyser Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Peyser, Sanford A. (1944) "Sufficiency of Complaint Under Federal Rules--Revolution of Objectives in Procedure," St. John's Law Review: Vol. 18 : No. 2 , Article 6. Available at: https://scholarship.law.stjohns.edu/lawreview/vol18/iss2/6 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ST. JOHN'S LAW REVIEWnow interposed with regard to married persons only one of whomhas income and/or deductions. Since the spouses of such personshave no income or deductions and a joint return cannot be filed, itappears they are in the class referred to as all other individuals.Naturally, the effect is discriminatory. One cannot fail to observethat a "head of a family" who is including generally in his returnonly his own income and deductions is entitled to a $2500 maximumdeduction, while the average married man with a wife or childrendependent on him, whose wife has no income or deductions, beingunable to file a joint return, is allowed only a maximum of $1250.This may well be due to faulty phrasing and was not so intendedby the legislature. It would seem to call for reconsideration and cor-rection at the earliest possible opportunity rather than to wait forjudicial interpretation.It is interesting to note that the New York State Income TaxLaw which parallels the federal law in the respects discussed, hasadopted verbatim the medical expense deductions, albeit providingfor maximums of $1500 and $750 respectively.MILTON G. HARRISON.SUFFICIENCY OF COMPLAINT UNDER FEDERAL RULES-REVOLUTIONOF OBJECTIVES IN PROCEDUREIn framing a system of pleadings, objectives must first be settled.'Efficacy hangs upon how closely these are adapted to the requirementsof the economic and social system for which they are created.2 Thecode system has proved inadequate because the courts failed to adapt itto the changing needs of litigation. Tracing the scale that measuressufficiency under the Federal Rules, three ideas stand out as dom-inant: Liberality, Simplicity, and Notice.As for Liberality, poor statement should not preclude a remedy,since justice ought not be limited to lawyers or to those with facilitiesand dexterity in legalistics. Liberality depends upon the policy ofthe judges who apply the laws; express command in the rules isscanty.8 The mandate that all pleadings should be construed as todo substantial justice is fundamental;4 its spirit has been oftenrepeated.1 FEDERAL RULES OF CIVIL PROCEDURE, Rule I: "... They shall be con-strued to secure the just, speedy and inexpensive determination of every action."See Yankwich, Jurisdiction and Procedure of the Federal Courts (1940) 1 F.R. D. 453, 463.2 See Yankwich, op. cit. supra note 1, at 490.3 Ibid.4 FEDERAL RULES oF CIVIL PROCEDURE, Rule 8f: "All pleadings shall be soconstrued as to do substantial justice." Cf. N. Y. Crv. Prc. AcT § 275. Re-[ VOL. 18NOTES AND COMMENTNo more striking embodiment of the spirit of liberality in apply-ing the Federal Rules can be found than in Dioguardi v. Durning,decided January 3, 1944 by the Second Circuit of the United StatesCircuit Court of Appeal. In a crudely drawn complaint, a plaintiffItalian importer alleged wrongful conversion of two cases of medicinaltonics, and a sale of the balance of his goods at an auction whichtransgressed its statutory authority. Federal provision permits dis-posal of abandoned merchandise unclaimed for more than one year.5The articles in issue were sold to a bidder who paid no more thanthe plaintiff offered, upon which facts his cause rested. The com-plaint was held sufficient despite the defendant's motion to dismissfor failure to state any claim upon which relief could be granted.The court deemed that the Internal Revenue Collector was personallyresponsible for proper performance of his bailment.6 Meritoriouscauses ought no longer be doomed on account of meager statementof facts. A cause should survive when it shows need, even thoughit be obscured in a layman's clumsy construction or a foreigner'sblundering English.7Liberality involves the principle that an unartful plaintiff shouldnot be penalized for his ineptness and obscurity. Yet, overelaborationmust be discouraged. Simplicity in the laws, our second objective,helps. Judge Yankwich says that intricate systems are our Englishheritage which we must now outgrow.8 Law accumulates and elab-orates natively. A viner diligent in tending the garden would pruneaway the overgrowth. The law is moving t6ward uniformity in thesource of authority. The confusion from rival state and federal ruleshad crippled orderly justice, causing "orderly chaos".9 Conformationwith state rules on the law side had made a comprehensive systemof procedure impossible.'0 The unification of the law rules withferring to the statute, the court in Maylender v. Fulton, County Gas and ElectricCo., 131 Misc. 514, 227 N. Y. Supp. 209 (1928), said, "that only applies to mat-ters of form and has no application to the fundamental requisites of a cause ofaction." In contrast, the interpretation of the federal provision "is not clear,but it excludes reqfliring technical exactness, or the making of refined infer-ences against the pleader and requires an effort fairly to understand what hesets forth." See De Loach v. Crowley, 128 F. (2d) 378, 380 (C. C. A. 1942) ;People's Natural Gas Co. v. Federal Power Commission, 127 F. (2d) 153(D. C. 1942).G46 STAT. 726, 19 U. S. C. A. § 1491 (1930).6 Conklin v. Newton, 34 F. (2d) 612 (C. C. A. 1929) ; Giles v. Newton,21 F. (2d) 484 (D. C. 1929).7But cf. Capdieville v. American Commercial, 1 F. R. D. *365 (D. C.1940).8 See note 2 supra.9 Simmons, Rules of Civil Procedure (1943) 3 F. R. D. 73, 74.20 In Granite Trust Building Corp. v. Great Atlantic and Pacific Tea Co.,36 F. Supp. 77 (D. C. 1940), authority of a state law was rejected becausesuperseded by the Federal Rules in matters of procedure.1944 ]ST. JOHN'S LAW REVIEWthe established equity rules under Rule 2 is another means of excis-ing superfluity.'1In matters of substance, Erie R. v. Tompkins 12 removed thebody of "Federal Common Law" that had been built up from Swiftv. Tyson.13 Now the federal courts follow the states' rules whereversuch are applicable.14 Thus uniformity has been achieved in rulesof substance, 15 and with it, simplicity. The code itself speaks inthat vein. The injunction demands that pleadings be concise anddirect.16 Simplicity is embodied in the provision for the constructionof the complaint, which should be a short and clear statement (1) ofthe grounds of jurisdiction, (2) of the claim showing that the pleaderis entitled to relief, and lastly, a setting forth of his demand for therelief to which he is entitled. 17  This formula was continued fromformer Equity Rules.' 8 Defenses should be in short and plain termswhich meet the averments, 19 and minimum statement is required inpleading to show jurisdiction. Fraud must be stated with particu-larity while performance of conditions precedent need only be allegedgenerally.20 The mechanics of form have been simplified, 21 to indicatea simplicity and brevity of statement, which the rules now contemplate."'Under the Federal Rules and N. Y. Civ. PRAc. ACT § 8, the distinctionbetween legal and equitable remedies remains. See Williams v. Collier, 32 F.Supp. 321 (D. C. 1940).12 Erie 1. R. v. Tompkins, 304 U. S. 64, 82 L. ed. 1188 (1938) ; see Clark,The Tompkinm Case and the Federal Rules (1940) 1 F. R. D. 417.13 Swift v. Tyson, 16 Pet. 1, 10 L. ed. 865 (U. S. 1842).14 "The decision in Erie R. Co. v Tompkins goes further and settles thequestion of power. The subject is now to be governed by decisions of theappropriate state court."25 See Ruhlin v. N. Y. Life Ins. Co., 304 U. S. 202, 82 L. ed. 1290 (1938);Francis v. Humphrey, 25 F. Supp. 1 (D. C. 1938).16 What is said in Mumm v. Decker, 301 U. S. 168, 81 L. ed. 983 (1937),about the Equity Rules, is true of the Federal Rules; that their purpose "wasto simplify equity pleading and practice and with respect to the former todispense with prolix and redundant averments which had made equity pleadingan outstanding example of unnecessary elaboration." See Buckley v. MusicCorp. of America, 1 F. R. D. 602 (D. C. 1941).17 FEDERAL RuIs OF CIVIL PROcEDURE, Rule 8(a): "A pleading withsets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third party claim, shall contain (1) a short and plain statement ofthe grounds upon which the court's jurisdiction depends, unless the court alreadyhas jurisdiction and the claim needs no new grounds of jurisdiction to supportit, (2) a short and plain statement of the claim showing that the pleader isentitled to relief and (3) a demand for judgment for the relief to which hedeems himself entitled. Relief in the alternative or of several different typesmay be demanded."18 Equity Rules, 28 U. S. C. A. § 723 (1912).'9 FEDERAL RULES OF CML PROCEDURE, Rule 8(b) : "A party shall state inshort and plain terms his defenses to each claim asserted and shall admit ordeny the averments upon which the adverse party relies .... Denials shallfairly meet the substance of the averments denied."20 Cf. N. Y. Civ. PRAc. ACT § 92. An abbreviated due performance clauseis there provided for, but the statute's construction has been very rigid. InClemens v. American Fire Insurance Co., 70 App. Div. 435, 75 N. Y. Supp. 484[ VOL. 18NOTES AND COMMENTJudicial interpretations have furthered simplicity, 22 and haveallowed a plaintiff to be relieved from pleading many allegationsessential to recovery. He need only show that he is entitled to relief.And he need not plead matter more appropriate to the trial, nor eventhe other parts of the case.23  Simplicity in the demand for relief isachieved when a party will get his proper relief even if he has notdemanded it.24 Recovery, then, is based not on the pleadings buton the record. 25  Simplicity must be observed though it cost theright to notice and information to prepare a defense.26 To compensatefor the lack of information of the simplified complaint, courts suggestthat the parties get their information by the means provided by theFederal Rules, discovery and interrogatories.2 7After liberality and simplicity, Notice ranks as an objective of theFederal Rules. 28 Some courts regard this information as to the basisof a claim, and the type of litigation, as the dominating conception ofthe Federal Rules.29  Notice, however, must defer to simplicity. InMartz v. Abbott,30 mere allegations that plaintiff, a minor, was injuredby defendant's auto and that it was a result of negligence, survived(1902), the court held that omission of the word "duly" from "duly performed"was a failure to comply with the section. See. PRASHKER, CASES ON NEw YORKPLEADING AND PRAcricE 369.21 FEDERAL. RULES or CIVn. PRocEDuRE, Rule 10: (a) Every pleading shallcontain a caption setting forth the name of the court, the title of the action,the file'number, and a designation as in Rule 7(a). In the complaint the titleof the action shall include the names of all the parties, but in other pleadingsit is sufficient to state the name of the first party on each side with an appro-priate indication of other parties.(b) All averments of claim or defense shall be made in numbered para-graphs, the contents of each of which shall be limited as far as practicable to astatement of a single set of circumstances; and a paragraph may be referredto by number in all succeeding pleadings. Each claim founded upon a separatetransaction or occurrence and each defense other than denials shall be statedin a separate count or defense whenever a separation facilitates the clear pres-entation of the matters set forth.(c) Statements in a pleading may be adopted by reference in a differentpart of the same pleading or in another pleading or in any motion. A copy ofany written instrument which is an exhibit to a pleading is a part thereof forall purposes.22 Clark, The Tompkins Case and the Federal Rules (1940) 1 F. R. D. 417.2 3 "Under the Rules . . . a case consists not in the pleadings but in theevidence for which the pleadings furnish the basis. Cases are generally triedon the proofs rather than on the pleadings." See De Loach v. Crowley, 128F. (2d) 378, 380 (C. C. A. 1942).24 FEDERAL RULES OF CIVmL PROCEDURE, Rule 54(c): ... Every finaljudgment shall grant the relief to which the party in whose favor it is renderedis entitled, even if the party has not demanded such relief in his pleadings.See Keiser v. Walsh, 118 F. (2d) 13 (C. C. A. 1940).25 Nester v. Western Union Tel. Co., 25 F. Supp. 478 (1938) ; cf. Millerv. Hyman, 28 F. Supp. 312 (D. C. 1939).26 Sierocynski v. E. I. DuPont Nemours, 103 F. (2d) 843 (C. C. A. 1939).2 7 Neumann v. Faultless Clothing, 27 F. Supp. 810 (D. C. 1939).28 Montgomery, Changes in Federal Practice (1940) 1 F. R. D. 337, 339.29 Continental Collieries v. Shober, 130 F. (2d) 631 (C. C. A. 3d, 1942).3 0 Martz v. Abbott, 2 F. R. D. 17 (D. C. 1941).1944]IST. JOHN'S LAW REVIEWan attack for failure to give notice, in that there was not sufficientinformation to prepare for trial. The court held that the simplicityof the Federal Rules must be preserved and that it would be defeatedby requiring more notice. The defendant was denied a more definitestatement, and was referred instead to the mechanisms of discovery.The functions of notice are to get further information for preparinga case, as well as to get evidence for its trial. General notice of broadoutlines should not undertake the supplying of details for defense;it comprehends merely the selection of issues to be settled.3 ' Thoughthe pleadings are continued to a limited extent as a medium of notice,8 2the time honored method of framing issues is rejected and dis-avowed.33 When framing issues was disclaimed, fact pleading, or,the machinery that produced issues, was also abandoned. The codesystems show the difficulties involved in pleading facts.In deciding "Material facts" a pleader must select the facts thatare legally operative, and this presupposes a calculation based on thesubstantive law of what is required for a "cause of action".8 4 Apleader must determine what is the substantive theory of his casebefore he can select the facts which will bring him relief under thattheory. 5 His remedy should not depend upon success at marshallinglegally significant facts but rather on its merits. Fact pleading underthe codes has not proved a solution to difficulties of common lawpleading. Instead, new difficulties have presented themselves. Thedistinctions of ultimate facts, evidentiary matter, and conclusions oflaw, have confused justice.30 Fact pleading has doomed brevity,because omission of material facts is fatal, and a pleader would rathersay too much than too little. Under the Federal Rules, issues nolonger must necessarily be raised in the method of pleading facts.The theory is simply that the plaintiff state what happened, where-upon the court can apply the law.37 The "cause of action" concept31 Clark, Simplified Pleading (1943) 2 F. R. D. 456, 460.3 2 "The modern philosophy concerning pleadings is that they do little morethan indicate generally the type of litigation that is involved. All that isrequired is a generalized summary of the case that affords fair notice." SeeSecurities and Exchange Commission v. Timetrust, Inc., 28 F. Supp. 34 (D. C.1939).33 In interpreting Federal Rule 8, the federal courts make some compro-mise and still use some formulas of fact pleading under the codes. Followingthe standards of code pleading, the Federal Rules as to sufficiency are inter-preted to require (1) jurisdiction, (2) ownership of a right by plaintiff, (3)violation of right by defendant, and (4) resulting injury. See Patten v.Dennis, 134 F. (2d) 137 (C. C. A. 1943).34 P A rs M, op. cit. supra note 20, at 339.35 Under the Federal Rules the plaintiff's relief does not depend on thetheory of action adopted in the complaint. Baird v. Dassau, 1 F. R. D. 275(D. C. 1940).36 "Under this definition the chief purpose of pleading is to frame issues.Upon it have been engrafted by the court the various requirements, the detailedstatement of causes of action, the rule against pleading evidentiary facts andthe prohibition against conclusions." Yankwich, op. cit. .supra note 1, at 467.37 Moore, op. cit. supra note -, at 547.[ VOL. 18NOTES AND COMMENTis no longer used-instead, "claim of relief" takes its place. A plain-tiff is relieved of trying to piece out a cause of action based on asubstantive theory of his case. He merely states the wrongful actupon which he bases his claim.88 The Federal Rules are the resultof constant efforts during the past twenty-five years.39 It is to behoped that the movement will carry over into our state legislature.40We shall profit if only one idea be gained, namely, that justice is bestserved with simplicity.SANFORD A. PEYSER.38White v. Holland Furnace Co., 31 F. Supp. 32 (D. C. 1939).39 Armstrong, loc. cit. supra note -, at 511; Montgomery, op. cit. supranote 28, at 338.40 It was suggested before the Nebraska legislature that the rules be incor-porated into Nebraska law. See Simmons, Rules of Procedure (1943) 3 F.R. D. 73.1944 ]

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Sufficiency of Complaint Under Federal Rules--Revolution of Objectives in Procedure

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Sufficiency of Complaint Under Federal Rules--Revolution of Objectives in Procedure

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